Opinion
No. 38973.
September 5, 1944.
1. CRIMINAL LAW: Evidence: Lost Contract: Secondary Evidence Proper. A proper basis was made for the introduction of secondary evidence to prove the contents of a lost contract.
2. CRIMINAL LAW: Embezzlement: Attorney and Client: Purchase After Embezzlement. If defendant could not be convicted of embezzling the proceeds of warrants collected after he had entered into a purchase contract, the evidence shows embezzlement prior to such purchase.
3. CRIMINAL LAW: Embezzlement: Attorney and Client: Interest or Commission of Attorney: Embezzlement Statute Applies. Embezzlement under Sec. 4471 R.S. 1939 will lie against an attorney who appropriated to his own use the proceeds of certain warrants collected for a client though he had a contractual interest in the collection to the extent of the accrued interest.
4. CRIMINAL LAW: Embezzlement: Attorney and Client: Demand Not Necessary. A demand was not necessary to sustain a conviction of embezzlement where an attorney converted to his own use the proceeds of a collection made for a client.
5. CRIMINAL LAW: Appeal and Error: Issue of Variance Not Preserved. No issue of variance was presented to the trial court or preserved for appellate review.
6. CRIMINAL LAW: Appeal and Error: Insufficient Reference to Instructions. Assertions that instructions specified only by number were erroneous preserve no issue for review, but the instructions appear to be proper.
7. CRIMINAL LAW: Evidence: Exclusion of Exhibit Proper. A bank draft insufficiently connected with the transaction was properly excluded.
8. CRIMINAL LAW: Witnesses: Additional Witness Endorsed During Trial. The record does not show that an additional witness endorsed during the progress of the trial was so endorsed for a limited purpose.
Appeal from Madison Circuit Court. — Hon. Norwin D. Houser, Judge.
AFFIRMED.
R.B. Osborn, W.A. Brookshire, Taylor Smith, Sr. and W.T. Powers for appellant; William P. Elmer on the brief.
(1) The gravamen of embezzlement is fraudulent intent to deprive the owner of his property. Fortney v. Commonwealth, 162 S.W.2d 193, 290 Ky. 659. (2) Instruction 2 was error as a misdirection, in that the element of intent to permanently deprive the company of the money was omitted. (3) Instruction 3 was error as a misdirection, in that converting to use with intent to deprive the owner of the use, was not required to be permanently done. (4) Instruction 3 is error in directing jury to infer intent in embezzlement where intent must be proven by direct or circumstantial evidence. All the jury had to find under this instruction was the facts in the first part of the instruction to be true, although the court had instructed them such facts did, not warrant a conviction. It also omitted the question of permanent conversion. (5) The Instruction 4 is error. There was no evidence of restoration of embezzled funds upon which to base it. The bank drafts, totaling some $900, were offered in evidence, but there is no evidence they were restoration payments. (6) Instruction 1 should have limited the time of embezzlement between November 15 and December 10, 1940. (7) The Instruction 5 is error because there was no evidence upon which to base it — nothing in the case called for it. State v. Brown, 270 S.W. 275; State v. Douglas, 278 S.W. 1016, 312 Mo. 373; State v. Oliver, 87 S.W.2d 644, 337 Mo. 1037. (8) The charge in the indictment is the embezzlement was from the Austin-Western Machinery Company. The instructions are on the same. The checks show there were two companies. The contract was with the Austin-Western Road Machinery Company of Illinois. This is a variance. (9) The evidence was not sufficient to prove the offense of embezzlement. Our argument sets out the reasons for this assignment. (10) The court erred in excluding the cashier's check, Exhibit A. It was competent and legal and material evidence. (11) The court erred in admitting parol testimony as to the contents of the contract. The proper foundation was not laid by the testimony offered. The contract was in possession of the company and it was not shown the officer who kept the records did not have it. Notice to defendant's attorney was not served and defendant did not have it. (12) The court erred in holding the contract proven by the testimony of Kerstann, O'Farrell, McIlrath. They did not purport to state the full contents of the contract but only parts. The testimony does not show what the contract provided as to when and how defendant should account for moneys collected. There could be no embezzlement until defendant was required to account. The State failed to make this proof in the contract. And also failed by other testimony to show when defendant should account. (13) The contract was abrogated by the sale of the warrants to defendant, and was never restored, set aside, and it was error to consider it in force after December 10, 1940. (14) Endorsing the name of Mr. Kerstann on the information for limited and certain purposes and permitting him to thereafter testify to the contents of the contract, was error; and not within the discretion of the court and the right to give the additional testimony was not ordered. (15) Accused had an interest in the money collected and there could not be any embezzlement as long as such interest continued and it would continue until a demand was made upon him for settlement. 20 C.J., p. 417; State v. Wise, 186 Mo. 42, 84 S.W. 954; State v. Knowles, 185 Mo. 141, 83 S.W. 1083; 20 C.J. 444, sec. 33. (16) In this case a demand was necessary in order to fix liability. None was made or the time of payment had to be definitely fixed in the contract and proven as a part of the contract. 20 C.J. 429 (17), Note Wis. Case, p. 430; Melrath v. State, 138 Wis. 120, 13 Am. St. Rep. 1012; Prinslow v. State, 140 Wis. 131, 121 N.W. 637; State v. Knowles, above; State v. Britt, 213 S.W. 425; State v. Moreaux, 254 Mo. 398, 162 S.W. 158; State v. Porter, 26 Mo. 201. (17) A demand is necessary where a definite time for payment is not fixed by the contract. 20 C.J. 432-3.
Roy McKittrick, Attorney General, and L.I. Morris, Assistant Attorney General, for respondent.
(1) The information is sufficient in form and substance under the statutes and charges defendant with the crime denounced as embezzlement. Sec. 4471, R.S. 1939; State v. Adams, 300 S.W. 738, 318 Mo. 712; State v. Woodward, 130 S.W.2d 474; State v. Ross, 279 S.W. 405, 312 Mo. 490; State v. McWilliams, 267 Mo. 437, 184 S.W. 96; State v. Blakemore, 126 S.W. 429, 226 Mo. 560; State v. Thompson, 55 S.W. 1013, 155 Mo. 300; State v. Lentz, 83 S.W. 970, 184 Mo. 223; State v. Pratt, 11 S.W. 977, 98 Mo. 482; State v. Cochran, 80 S.W.2d 182, 336 Mo. 649. (2) Assignments of error, general in character, will not be considered for review by this court. Sec. 4125, R.S. 1939; State v. Kennon, 123 S.W.2d 246; State v. Dollarhide, 87 S.W.2d 156, 337 Mo. 962; State v. Scott, 113 S.W. 1069, 214 Mo. 257; State v. Anno, 296 S.W. 825; State v. Nienaber, 148 S.W.2d 1024, 347 Mo. 615; State v. Kernack, 7 S.W.2d 432; State v. Adams, 300 S.W. 738, 318 Mo. 712; State v. Kenyon, 126 S.W.2d 245. (3) Evidence introduced by the State in this instance is sufficient to sustain a conviction for embezzlement. Sec. 4471, R.S. 1939; State v. Gould, 46 S.W.2d 886, 329 Mo. 828; State v. Scott, 256 S.W. 745, 301 Mo. 409; State v. Kennedy, 239 S.W. 869; State v. Gebhart, 119 S.W. 350, 219 Mo. 708; State v. Moreaux, 162 S.W. 158, 254 Mo. 398; State v. Hedges, 295 S.W. 575. (4) The assignment in appellant's motion for a new trial that the court failed to correctly instruct on all the law, is insufficient. State v. Bagby, 93 327 S.W.2d 241, 338 Mo. 951; State v. Gregory, 96 S.W.2d 47, 339 Mo. 133. (5) The verdict in this cause is responsive to the charge in the information and is in proper and approved form. Sec. 4471, R.S. 1939; State v. Shaw, 95 S.W. 405, 196 Mo. 202; State v. Woodward, 130 S.W.2d 474; State v. Shour, 196 Mo. 202, 95 S.W. 405. (6) The court did not err in overruling defendant's motion for a new trial filed at the close of State's case. State v. Barr, 78 S.W.2d 104, 336 Mo. 300; State v. Lebo, 98 S.W.2d 695, 339 Mo. 960; State v. Meadows, 51 S.W.2d 1033, 330 Mo. 1020; State v. Williams, 108 S.W.2d 177. (7) The court did not err in overruling defendant's motion for a new trial, filed at the close of the whole case. State v. Ring, 141 S.W.2d 57, 346 Mo. 290; State v. Bigley, 247 S.W. 169; State v. Myers, 44 S.W.2d 71. (8) Allocution was granted defendant. Sec. 4102, R.S. 1939; State v. Madden, 24 S.W.2d 1003. (9) The court did not err in permitting the names of witnesses to be endorsed on the information. Sec. 3933, R.S. 1939; State v. O'Day, 1 S.W. 759, 89 Mo. 559; State v. Cook, 3 S.W.2d 365, 318 Mo. 1233; State v. Wilson, 12 S.W.2d 445; State v. Lowry, 12 S.W.2d 469; State v. Robinson, 172 S.W. 598, 263 Mo. 318; State v. Derrington, 137 S.W.2d 468; State v. Williams, 12 S.W.2d 445, 321 Mo. 564; State v. Scovill, 15 S.W.2d 931; State v. Hefflin, 89 S.W.2d 938, 378 Mo. 236, 103 A.L.R. 1301. (10) The court did not err in admitting witness W.A. Kerstann to testify in rebuttal testimony. State v. Cook, 3 S.W.2d 365, 318 Mo. 1233; State v. Jennings, 34 S.W.2d 50, 326 Mo. 1085; State v. Cook, 3 S.W.2d l.c. 367. (11) No error was committed by court in admitting testimony in permitting witnesses, O'Farrell and McIlrath to testify as to contents of a contract. Sec. 4125, R.S. 1939; State v. Buckner, 80 S.W.2d 167; Mo. Stat. Ann. 3735, p. 3275. (12) The court has a wide discretion in permitting cross-examination of defendant, concerning matters pleaded in the information. Sec. 4125, R.S. 1939. (13) No error on the part of the court to permit plaintiff to examine R.B. Osborne, concerning notice to produce copy of alleged contract. Sec. 4125, R.S. 1939. (14) No error in admitting in evidence county warrants. Sec. 4125, R.S. 1939; State v. Wilson, 143 S.W. 534, 161 Mo. App. 301; State v. Coleman, 84 S.W. 978, 186 Mo. 151, 69 L.R.A. 381; State v. Allen, 246 S.W. 946; Crim. Law, Mo. Digest, 1141 (2). (15) No error in excluding from evidence a bank draft and check. Sec. 4125, R.S. 1939; See Points (11), (13), and (14). (16) Change of venue not a question to be raised in motion for new trial, as such question can only be raised prior to trial of cause. Secs. 3767-68, R.S. 1939; State v. Mispagel, 207 Mo. 557, 106 S.W. 513; State v. Wilson, 66 Mo. App. 540; State v. Fluesmeier, 1 S.W.2d 133, 318 Mo. 803; State v. Sheets, 289 S.W. 553; State v. Fischer, 249 S.W. 46, 297 Mo. 164. (17) All assignments of error in motion for new trial not briefed, are considered abandoned, and not subject to review by this court. State v. Mason, 98 S.W.2d 574. (18) Court did not err in admitting testimony of witnesses since their testimony was strictly rebuttal. State v. Baker, 285 S.W. 82; State v. Cook, 3 S.W.2d 365, 318 Mo. 1223; 9 Mo. Digest, sec. 628 (2) Crim. Law. (19) No error was committed in permitting Prosecuting Attorney to cross-examine defendant on matters brought out in examination in chief. Secs. 3692, 3735, R.S. 1929; State v. Pierson, 85 S.W.2d 48; State v. Burgess, 193 S.W. 821; State v. England, 12 S.W.2d 37; State v. Williams, 87 S.W.2d 175; State v. Scott, 58 S.W.2d 275; State v. Edmundson, 218 S.W. 864; State v. Robinson, 130 S.W.2d 530. (20) The court committed no error in giving plaintiff's instructions 1, 2, 3, 4 and 5, as same have previously been approved by this court in similar cases. Secs. 4125, 4471, R.S. 1939; State v. Cochran, 80 S.W.2d 182, 336 Mo. 649; State v. Pratt, 11 S.W. 977, 98 Mo. 482; State v. Adams, 300 S.W. 738, 318 Mo. 712; State v. Baker, 285 S.W. 416; State v. Schnelt, 108 S.W.2d 377, 341 Mo. 241.
Elmer R. January appeals from a judgment imposing a sentence of two years' imprisonment in accord with the verdict of the jury for embezzlement. His chief issue is the sufficiency of the evidence.
The Austin-Western Road Machinery Company, a corporation, held fifty-three unpaid "Road Equipment Fund 256 Reynolds county, Mo.," warrants. Defendant, an attorney, was employed to collect these warrants [325] under a contract. As established it provided that defendant was to receive a cash retainer of $300 and, upon collection, was to remit the principal amount of the warrant to his client, his compensation to be the accrued interest collected on the warrant. This contract, the $300 retainer check, and the warrants were transmitted to defendant by registered mail under date of November 2, 1938; and defendant acknowledged due receipt in writing. Nothing thereafter developed until November 15, 1940, when defendant received the county's check in payment for warrants, Numbers 101, 102, 121, 122, 127, and 128, aggregating the total sum of $1,221.76 of which $1,049.12 was principal and $172.64 was interest. The next day defendant presented the check to a bank and after receiving $275 cash deposited $946.76 to his individual credit. Defendant issued checks against this credit in said bank to such an amount as to reduce said balance to $284.41 as of December 6, 1940. On December 10, 1940, the client had its Mr. O'Farrell call on defendant with respect to the warrants. They talked for an hour. Mr. O'Farrell asked whether the warrants had been paid and the prospects of payment. Defendant informed him none had been paid. He also said there was very little hope for payment and indicated he might purchase the warrants. Upon being asked for an offer, defendant said he would give a $2,000 check, postdated to January 25, 1942, for the warrants. Mr. O'Farrell then called his home office and defendant's $2,000 postdated check was accepted. Defendant's check not being paid upon presentment, Mr. O'Farrell next called upon him soon after January 25, 1942.
Defendant took the stand in his own behalf and, although he denied committing the offense, his factual testimony on cross-examination established his guilt. He forwarded, according to his testimony, $505.38 to his client in March, 1942, and his testimony indicates he forwarded in April, 1942, an additional $404.39 — a total of $910.77.
The point that a submissible case was not made is without merit for several reasons. We shall develop but one. Preliminary thereto, we mention:
The contract covering defendant's employment was lost. It had been delivered to the prosecuting attorney for his files. That officer testified the contract disappeared from his files and that thereafter, although he made a diligent search for it, he had been unable to find it. There also was testimony that the client did not have the contract or a copy of it; that notice was given defendant and his counsel to produce defendant's copy of the contract, and that defendant refused to produce on the ground he was not required to do so under the constitution. There was other corroborating evidence. This was sufficient for the admission of secondary evidence with respect to the contract. See 22 C.J.S., p. 1196, Sec. 706; State v. Thompson, 338 Mo. 897, 902 (VII), 92 S.W.2d 892, 893 [7]. The material provisions of the contract, mentioned supra, were sufficiently established by witnesses having knowledge of the contents.
Much is made of the fact defendant purchased the warrants on December 10, 1940. His printed brief states he could not embezzle after December 10th, but might be convicted if peculations occurred between November 15 and December 10, 1940. Judged by defendant's stated standard it is apparent from the statement of facts that defendant embezzled in excess of $700 between November 15 and December 6, 1940.
The prosecution was under Section 4471, R.S. 1939. The material provisions read: ". . . if any . . . agent . . . or collector of any incorporated company, or any person employed in any such capacity, shall embezzle or convert to his own use, or shall take, make away with or secrete, with intent to embezzle or convert to his own use, without the assent of his master or employer, any money . . . or effects whatsoever, belonging to any other person, which shall have come into his possession or under his care by virtue of such employment . . . he shall, upon conviction" be punished. The charge against defendant was that he "feloniously did embezzle and fraudulently convert to his own use, without the assent of his employer" certain money; not that he did "take, make away with or secrete, with intent to embezzle or convert to his own use" et cetera. Consult State v. Moreaux, 254 Mo. 398, 411 (VI), 162 S.W. 158, 162 (10).
Defendant's stressed position is technical; viz.: that there can be no embezzlement because under the contract he had an interest in the money collected and because a demand for payment was a condition precedent to any embezzlement. State v. Wise, 186 Mo. 42, 45, 84 S.W. 954, 955, and State v. Knowles, 185 Mo. 141, 164, 83 S.W. 1083, [326] 1088, are cited. These cases refer to 10 Amer. Eng. Ency. Law (2d Ed.), pp. 985, n. 7, and 987, n. 1, stating, in effect, that one having a joint interest in the property could not be convicted of its embezzlement. The holding in State v. Kent (1875), 22 Minn. 41, 21 Am. Rep. 764, a leading American case so holding, was that where the accused had an interest in the property alleged to have been embezzled such part-ownership prevented his conversion constituting an offense under a statute making it a crime to convert "any money or property of another." This, however, is the minority view. The cited Missouri cases do not so hold. Their observation is that the legislative purpose in enacting then Sec. 1918, R.S. 1899 (now Sec. 4478, R.S. 1939, one of the statutes on embezzlement), was to put an end to the defect in the law which precluded the conviction of one for the embezzlement of property if he had a part interest therein.
Embezzlement is a statutory offense solely. State v. Edwards, 345 Mo. 929, 931 [1], 137 S.W.2d 447, 448[17]. Consequently, the applicable statutory provisions determine the scope of the enactment and measure the given factual situation. The provisions of Sec. 4471, supra, are broad enough to include defendant and the property involved under the facts adduced. Defendant was a person employed in the capacity of a collector for his client and the provision "any money . . . or effects whatsoever, belonging to any other person" covered the principal amount of the warrants collected, the property of the client. Defendant's property rights did not extend to any portion of the principal. His rights were restricted to the accrued interest collected. He may have committed no statutory offense upon converting the accrued interest to his own use; but upon his appropriations extending to the principal amount he converted some money belonging to another within the meaning of the statute. The public policy as evidenced by the statute, the logic of the situation, and the weight of modern authority sustain a conviction in these circumstances. See Commonwealth v. Jacobs, 126 Ky. 536, 104 S.W. 345, 13 L.R.A. (N.S.) 511, 15 Ann. Cas. 1226, and annotations; Annotation to Eggleston v. State, 87 Am. St. Rep. 25 (3), 129 Ala. 80, 30 So. 582; State v. McNamara, 128 Conn. 273, 22 A.2d 10, 12[4]; State v. Hanson, 54 S.D. 267, 223 N.W. 55; Page v. Commonwealth, 148 Va. 733, 138 S.E. 510; 18 Am. Jur., p. 576, Sec. 11; 29 C.J.S., p. 693, Sec. 15, c. The relation between attorney and client is one of high trust and confidence, exacting the utmost good faith on the part of the attorney, entitling the client to full information as to his rights and interest and to be so placed as to deal with the attorney at arm's length. In re Conrad, 340 Mo. 582, 598[3], 105 S.W.2d 1, 10 [5, 6]; Morton v. Forsee, 249 Mo. 409, 155 S.W. 765, Ann. Cas. 1914D, 197; Barrett v. Ball, 101 Mo. App. 288, 73 S.W. 865; 7 C.J.S., p. 973; Secs. 133, 139. Although the agent effecting a collection be entitled to a commission, the fund or mass belongs to the principal until the agent exercises his right and appropriates his commission. Commonwealth v. Hutchins, 232 Mass. 285, 122 N.E. 275, 276 [1, 2]; Commonwealth v. Lannan, 153 Mass. 287, 26 N.E. 858, 11 L.R.A. 450, 25 Am. St. Rep. 629; Holmes, J., writing.
The statute is silent with respect to a demand for payment. Demand is no constitutive element of the offense defined. A demand, accompanied by a refusal of payment, merely evidences a conversion. It might have served a purpose had the principal collected remained on deposit. A conversion established by any other competent evidence is effective. Here, upon inquiry, defendant replied that no collection had been made. This tended to establish a conversion. When defendant presented the check given in payment to the bank for deposit to his own credit, there was a technical appropriation. When he proceeded further and converted this deposit to his own use by withdrawing parts of the principal amount collected, the offense defined by the statute was complete. In the instant case there was ample evidence of the conversion without proof of a demand and refusal. Defendant's cited cases recognize this. State v. Porter, 26 Mo. 201, 208(4); State v. McWilliams, 267 Mo. 437, 455(V), 184 S.W. 96, 100[9]; State v. Moreaux, supra.
We find a remark in defendant's printed argument concerning a variance, but no issue respecting a variance was presented to the trial court or attempted to be preserved for review. It is not for review. State v. Fike, 324 Mo. 801, 808, 24 S.W.2d 1027, 1029[1]; State v. Broyles, 317 Mo. 276, 281, 295 S.W. 554, 557[6]. The only reasonable conclusion in reading this record [327] is that the matter mentioned did not mislead defendant.
Defendant's assertion in his motion for new trial that instructions specified only by number were erroneous, without more, is insufficient to preserve any issue with respect thereto. State v. Goodwin, 333 Mo. 168, 169[1], 61 S.W.2d 960; State v. Rosegrant, 338 Mo. 1153, 1174[9], 93 S.W.2d 961, 973[20]. The instructions appear fair enough in the respects mentioned in defendant's printed brief when they are read in the light of the evidence and as a whole.
Defendant identified three bank drafts and his testimony as a whole indicates each represented remittances by him to the client in 1942. The court admitted two of the drafts in evidence but excluded the other. A general charge of error is made on the exclusion of the one draft, but nothing specific is developed. A sufficient reason for its exclusion is that it, differing from the other two, had not been connected with any transaction between defendant and the client at the time of the offer.
Another general assignment (in fact most of defendant's points are couched in language too general) relates to the admission of testimony given by a witness whose name was endorsed during the progress of the trial because, as asserted, the court permitted the endorsement for a limited purpose. The point in the brief departs from that mentioned in the motion for new trial. Be that as it may, our reference to the record discloses that the court did not impose limitations upon the scope of the witness' testimony and, further, that the prosecutor disclosed his intention to inquire concerning the matter mentioned in the defendant's brief. The record refutes the contention.
The judgment is affirmed. Westhues and Barrett, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.