The State v. Stevens

• Citation: 220 S.W. 844,281 Mo. 639
• Parties: THE STATE v. BEVERLY C. STEVENS, Appellant
• Decision Date: 26 March 1920
• Court: United States State Supreme Court of Missouri

220 S.W. 844

281 Mo. 639

THE STATE v. BEVERLY C. STEVENS, Appellant

Supreme Court of Missouri, Second Division

March 26, 1920

Appeal from St. Louis City Circuit Court. -- Hon. Rhodes E. Cave Judge.

Affirmed.

Fauntleroy Cullen & Hay for appellant.

(1) The court erred in permitting the State to show that defendant failed to account for any proceeds of the fifteen-hundred-dollar note, which he was charged with embezzling. State v. Dodson, 72 Mo. 283; State v. Crosswhite, 130 Mo. 363; State v. Mispagel, 207 Mo. 573; 9 R. C. L. 1295. (2) The indictment in this case charges that the note embezzled was made payable to the order of B. C. Stevens, who is the defendant in the case. This is a specific allegation and tantamount to an averment that the defendant was the owner and holder of the note. First Nat. Bank v. Stallo, 145 N.Y.S. 747; Sec. 10001, R. S 1909; State v. Farrington, 28 L. R. A. 398. (3) The note introduced in evidence was entirely variant from the note described in the indictment: (a) It was payable at the office of B. C. Stevens, Clayton, Missouri; (b) It bore interest after maturity at the rate of eight per cent per annum; (c) It recited that it was secured by deed of trust of even date herewith; (d) On the back it was indorsed B. C. Stevens. By the endorsement of said note, B. C. Stevens became a party to it and bound as one of the original makers, and this feature, alone, establishes clearly the variance between the note pleaded and the one proved. Not only was objection made to the note on account of this variance, but objection was made to the introduction of the deed of trust which was not mentioned in the indictment, and defendant was placed upon trial, charged with embezzling a note signed by Henry Woods, and as evidence of his guilt the State introduced a deed of trust, which was not mentioned in the indictment, and a note endorsed by B. C. Stevens, which was not mentioned in the indictment, and a note bearing interest, when no mention of interest was made in the indictment. Under the authorities, there was a fatal variance between the allegations in the indictment and the proof. State v. Owens, 73 Mo. 442; State v. McNerney, 118 Mo.App. 66; Grant v. State, 17 So. 225; Falkner v. Falkner, 73 Mo. 335.

Frank W. McAllister, Attorney General, and Clarence P. LeMire, Assistant Attorney General, for respondent.

(1) The second count is in a form substantially approved by this court. State v. Betz, 207 Mo. 589; State v. Crosswhite, 130 Mo. 358; Kelly's Crim. Law & Prac. (3 Ed.), sec. 677; State v. Castleton, 255 Mo. 201. (2) The State was permitted to show over the objection and exception of counsel for the appellant that the name of Beverly C. Stevens was indorsed on the back of the note in question. This was competent. It tended to support the allegation in the indictment to the effect that said note was the property of C. C. Sanders. Counsel for defendant also objected to the introduction in evidence of the deed of trust securing said note. Said deed of trust was competent to identify the note. It was a part of the original transaction and had been transferred along with the note in all subsequent transactions. State v. Burks, 159 Mo. 568. (3) The motion for new trial contains a general allegation of error in the giving and refusing of instructions. This court has often held that instructions cannot be saved for review in that manner; therefore we shall not encumber this brief with a review of said instructions. State v. Headrick, 149 Mo. 396; State v. Snyder, 263 Mo. 664; State v. McBrien, 265 Mo. 594.

OPINION

WALKER, C. J.

An indictment preferred to the grand jury of St. Louis County in December, 1914, charged the appellant in two counts with embezzlement; in the first with having unlawfully converted to his own use a certain note for $ 1500, the property of one C. C. Sanders; in the second, with having unlawfully, etc., as a bailee, converted said note.

After a removal of the case by change of venue to the Circuit Court of the City of St. Louis a trial was had resulting in a verdict of guilty under the second count and a sentence of three years' imprisonment in the penitentiary. Appellant seeks a reversal of this judgment.

The second count of the indictment is as follows:

"And the grand jurors aforesaid, under their oaths aforesaid, do further present that Beverly C. Stevens, on or about the -- day of July, 1913, at the County of St. Louis and State of Missouri, became and was the bailee of a certain right in action and valuable security, to-wit, a promissory note for the sum of fifteen hundred dollars, dated the 17th day of August, 1912, executed by Henry Woods, and payable three years after date to the order of B. C. Stevens, said note being of the value of fifteen hundred dollars, the right in action, valuable security and property of C. C. Sanders, which said right in action, valuable security and property was delivered to and came into possession and under the care of the said Beverly C. Stevens as bailee as aforesaid, of, for and on behalf of C. C. Sanders; and the said Beverly C. Stevens, the right in action, valuable security and property aforesaid did then and there feloniously and fraudulently embezzle and convert to his own use, without the consent of the said C. C. Sanders, with the felonious and fraudulent intent then and there to deprive the owner, the said C. C. Sanders, of the use thereof; and so the said Beverly C. Stevens, the said right in action, valuable security and property, of the value aforesaid, the property of the said C. C. Sanders, in the manner and form aforesaid fraudulently and feloniously did take, steal and carry away and convert the same to his own use, against the peace and dignity of the State."

The appellant resided in Clayton, St. Louis County, and was engaged in the real estate and loan business at the time of the alleged offense. In August, 1912, Sanders, the prosecuting witness, purchased from the appellant a note for $ 1500 payable on its face to the appellant; the latter endorsed the note and turned it over to Sanders. This note was secured by a deed of trust which was also at the time turned over to Sanders. After holding the note about twelve months, Sanders took it to the office of appellant and left it there to be sold or taken up. Several months elapsed and appellant told Sanders from time to time that he was trying to sell the note, but was unable to find a buyer. In October, 1914, Sanders discovered that the Creve Coeur Farmers Bank in St. Louis County had advertised to sell the note at public sale, and on the 14th day of that month it was so sold and he bought it for the sum of $ 1082.50. The evidence discloses that in August, 1913, the appellant had taken the note and deed of trust aforesaid and deposited them as collateral security for money advanced to him by the Creve Coeur Farmers Bank on his personal note. This personal note was renewed from time to time between August, 1913, and October, 1914, and a payment or two made, but each time the note and deed of trust in question were deposited as collateral security by appellant to secure the payment of his own note to the bank. It further appears that prior to October, 1914, appellant made an assignment for the benefit of his creditors and that the sale of the collateral note by the bank was to satisfy appellant's debt to it. This was the substance of the testimony on behalf of the State. The defendant offered none.

The points stressed by appellant for a reversal are: defects in the indictment, improper admission of testimony, and errors in instructions.

Stripped of formal averments required in a charge of the nature here under review, the presence of which is not challenged, the essential allegations of the indictment are that at the time stated the appellant was the bailee of a certain note, describing it, which was owned by one C. C. Sanders; that while said note was so held by the appellant he, without the consent of the owner, converted it to his own use; that his intent in so doing was to deprive the owner of the same; and that in the manner aforesaid appellant did feloniously steal, take and carry same away, etc.

I. The count of the indictment under which the appellant was convicted was based upon Section 4552, Revised Statutes 1909. This statute, as we held in State v. Burgess, 268 Mo. 407, 188 S.W. 135, creates two offenses; one for embezzlement as bailee, and the other for converting or making away with money or property as a bailee with intent to embezzle it. The offense as charged in the count under which appellant was convicted is for an actual embezzlement as bailee, and the intent pleaded is nothing more than a defining of the wrongful act with a felonious purpose necessary in any criminal charge. All of the averments essential to charge the offense are embodied therein. It is even more specific than is required under the Statute of Jeoffails (Sec. 5108, R. S. 1909) applicable to indictments for offenses of this character, and from it no difficulty is encountered in ascertaining the nature and cause of the accusation. It follows with exactness as to material averments the form approved in State v. Crosswhite, 130 Mo. 358, 32 S.W. 991, and, free from the defects noted in the Burgess case, supra, it complies with the requirements held therein to be necessary in framing a charge of this nature.

A more specific contention as to the insufficiency of the indictment is urged in that it alleges that the note was made payable to the appellant or his order, but does not aver that it was indorsed by him to Sanders; that on its face the ownership of same was in the appellant, who could not be held to have embezzled his own property. It is insisted in support of this...