State v. Ross

279 S.W. 411, 312 Mo. 510, 1926 Mo. LEXIS 549

• Court: Supreme Court of Missouri
• Decided: January 6, 1926
• Status: Published

Opinion

WHITE, J.

The appeal is from a judgment in the Circuit Court of the City of St. Louis, upon conviction of embezzlement. It is charged that the defendant, while acting as Deputy Commissioner of Finance of the State of Missouri, in charge of the assets of the Night & Day Bank in the city of St. Louis, November 24, 1922, embezzled $3,342.47, which came into his hands.

The evidence shows that John C. Hughes was appointed Bank Commissioner of the State of Missouri, in 1921, and later, when the office of Commissioner of Finance was created, he was appointed to that position in July, 1922. As Commissioner of Finance, Hughes took charge of the Night & Day Bank of St. Louis in January, 1922. In May, 1922, he appointed defendant Ross Special Deputy Finance Commissioner, and placed him in charge of the assets of that bank and Ross remained so in charge continuously thereafter until the time of the alleged offense.

Hughes was, succeeded as Commissioner of Finance by Frank C. Millspaugh, who retained Ross as Deputy Commissioner.

The law firm of Case & Miller, of St. Louis, was employed by Hughes to act for the commissioner in collecting money due the Night & Day Bank, and served in that capacity while Ross was in charge of the bank. According to the testimony of Clarence T. Case, a member of the firm of Case & Miller, they sent to Ross a check for $3,342.-47. This check, payable to “D. W. Ross, Examiner in Charge,” was for the total proceeds of a large number of collections which those attorneys had made. November 24th, Ross cashed the checks and deposited the proceeds in the Liberty Central Trust Company. His deposit slip, in his own handwriting, and his account with the Liberty Central Trust Company, showed the deposit to his own individual account. Pie carried two accounts in that institution, one a personal account and one as “Special Deputy Commissioner of Finance in Charge of the Night & Day Bank.” The proceeds of the check never got into that official account.

After Millspaugh succeeded Hughes he found this deposit and asked Ross why he placed the check in his own personal account. Ross made no satisfactory explanation. At that time he was short four or five thousand dollars, but refused to admit that he was short the exact amount of that check.

This last statement of Millspaugh was stricken out on motion of defendant’s counsel, because not responsive to' the question asked witness, but a voluntary statement.

Several witnesses, some of whom worked with Eoss and knew his signature well', identified his handwriting in his indorsement of the check and his name on the deposit slip.

Defendant offered no evidence upon,the merits of the case. The jury, December 22, 1923, found him guilty of embezzlement as charged, and assessed his punishment at imprisonment in the penitentiary for five years.

I. The indictment contained two counts. Defendant was found guilty on the second count. He filed a motion to quash the indictment and assigns error to the action of the trial court in overruling the demurrer. The offense charged is defined by Section 3334, Eevised Statutes 19.19, and appellant claims that the indictment fails to charge an offense under that section, or any other section, because it does not allege that he converted the money which came into his possession “by virtue of the trust reposed in .him, ” as the language of the statute describes the offense. Embezzlement is purely a statutory crime, and in order to charge the offense an indictment must substantially follow the language of the statute, or set forth the facts which bring it within the terms of the statute. [State v. McWilliams, 267 Mo. 449; State v. Moreaux, 254 Mo. l. c. 405; State v. Harmon, 106 Mo. l. c. 655.]

Section 3334 reads:

“If any officer, appointed or elected by virtue of the Constitution of this State, or any law thereof, or any mortgagee, trustee, executor, etc., . . . shall convert to his own use, in any manner whatever, or shall use by way of investment in any kind of property or merchandise, or shall make way with or secrete any portion of the public moneys, or any moneys that may have come to him . . . by virtue of . . . his office or official position, or by virtue of the-trust reposed in Mm . . . such officer . . . shall, upon conviction, be punished for stealing property of the kind or the value of the article so embezzled, converted, taken or secreted.”

The statute was intended to apply to public officers, and to persons holding other positions of trust. It condomns the conversion in “any manner whatever” of the public moneys that may have come to such person by virtue of his official position, or moneys which may have come to him by virtue of any trust reposed in him. The disjunctive “or” makes it apply to varying- facts. It includes embezzlement by administrators, and other technical trustees; the clause referring to “the trust reposed in him” applies especially to those persons. The language which the appellant claims was left out was unnecessary in an indictment of a public officer, and would be superfluous if it were in the indictment.

The indictment charged that November 24th, Ross was the duly appointed and acting Special Deputy Commissioner of Finance, in charge of the affairs of the Night & Day Bank, and while acting as such “was then and there authorized to take, collect, receive, and have under his supervision, care and control, money and property, the property of the said Night & Day Bank of the City of St. Louis, Missouri, a corporation as aforesaid; that the said Donald W. Ross, as said Acting Agent and said Special Deputy Commissioner of Finance of the State of Missouri, as aforesaid, did then and there receive and take into his possession and have under his supervision, care and control as trustee for and on behalf of the said Night & Day Bank of the City of St. Louis, Missouri, a banking corporation as aforesaid, under and by virtue of his office and position as said Acting Agent and Special Deputy Commissioner of Finance, as aforesaid, $3,342.47,” and November 24,1922, converted same to his own use.

Whatever trust was reposed in defendant is implied dn this description of his official character. While that allegation is not in the exact language of the statute, in describing the offense it sets forth all the facts to which the general terms of the statute apply. It was said in the case of State v. Larew, 191 Mo. l. c. 198: “It will thus he seen that the pleader has applied the statute to the concrete facts in the case and fully advised the defendant of the charge and accusation against him. ’ ’

It is further claimed that the use of the words “as trustee” in the indictment vitiates the indictment, because if defendant had charge of the money as an official of the State, he was not a trustee and could not have converted as trustee. The phrase “as trustee” is in the nature of a conclusion by the pleader from the facts stated. The facts alleged in the indictment show the character in which the defendant received the money and embezzled it. Any general conclusion by the pleader as to the legal effect of such facts would not control their import. We had occasion to say in the case of State v. Collins, 297 Mo. l. c. 267, that the instrument set out in the information must be given effect as it reads, and the conclusion of the pleader as to its legal effect was surplusage. That applies here. The indictment sets out the facts and the expression “as trustee,” the pleader’s conclusion, regarding the effect of such facts, is mere surplusage.

II. Before the trial, December 21, 1923, the defendant filed a plea of former conviction. This plea, set out that Ross was indicted and found guilty at the December term, 1923, of the Circuit Court of the City of St. Louis, on the charge of embezzling on the 28th day of November, 1922, $28,250. It is alleged that the offense charged there embraced the same offense described in the indictment in the present case. The record does not show whether at the time the defendant offered any evidence in support of that plea, but it shows that on December 21st the court overruled it and no objection was made.

The defendant then filed a plea of merger in which he alleged that he was indicted, tried and convicted of embezzling $28,250, on the 28th day of November, 1922, and that it was the same offense with which he was now charged. At the trial the defendant offered the files in the other case, it being the same case mentioned in the plea of former conviction, and the case of State v. Ross, ante, page 490. On objection of the State the evidence was excluded. The defendant then offered to prove that Ross was tried on the 4th and 5th days of December, 1923, in that case, and convicted, and his punishment assessed at five years’ imprisonment in the penitentiary, and the evidence was excluded.

The offense charged here, the embezzlement of $3,342.-47, was alleged to have been committed on the 24th day of November, 1922. The charge on which he was formerly convicted was the conversion of $28,250, on the 28th day of November, 1922. A different sum embezzled at a different time. The appellant did not offer 'to show that the sum charged in the present indictment was a part of the $28,250 charged in the other indictment. There was nothing to identify the check delivered to the plaintiff by the attorneys Miller & Case, or the proceeds of the check, in any way with the money involved in the indictment described in the other case. Therefore the evidence'was properly excluded.

III. Clarence T. Case, of the firm of Case & Miller, was introduced as a witness for the State, and testified-regarding the check which was signed by him and made payable to the defendant. He told of the collection and the remittance; and identified the check fendant objected and assigns- error here and the letter accompanying it. The do-to the action of the court in permitting Case to testify, on the ground that the knowledge he acquired of the mater was confidential, in that the relation of attorney and client existed between himself and Case.

Case & Miller were employed by Hughes, Finance Commissioner, and retained in the position by Millspaugh, Hughes’s successor. Their duty, on behalf of the commissioner in charge, was to collect debts due the Night & Day Bank. They were not in any sense personal at torneys for Ross. It may be said that they were attorneys for him in his official capacity, bnt not in his individual capacity, and the objects for which they were employed were to collect for the Department of Finance the money due the bank in charge of that department. They were not employed by, and owed no duty to, the individual Eoss.

In order that communications between attorney and client may be excluded on the ground that they are confidential, they must be in fact confidential. The rule dops •not extend to the protection of matter communicated unless it is the subject of confidential disclosure. [Standard Oil Co. v. Meyer Bros. Drug Co., 84 Mo. App. 80; Schaaf v. Fries, 77 Mo. App. 359.] Ross gave no confidential information to Case. Case was not consulted by Ross in any matter pertaining to his individual affairs, or in any matter that was personal. The proceeding by which Case & Miller collected and remitted to Ross was a public matter. It was not, in its nature, the private concern of Ross and the attorney. The Court)of Appeals in the case of State v. McChesney, 16 Mo. App. l. c. 268, thus states the principle which applies here:

“The rule exists for the protection of litigants, actual or intending, who find it necessary to make full and confidential revelations to counsel learned in the law, in order to assure ascertainment of their legal rights. It does not clearly appear that the defendant ever pretended to anything of this sort in his interviews with Mitchell. He professed to be talking, not for himself, but for the Brewers ’ Association. It may be claimed that a party who consults an attorney through an agent is entitled to the same protection against disclosures that would be assured to him if he consulted an attorney in person. But the Brewers’ Association here claimed no such protection, and the defendant could not claim it for them. ’ ’

That is. the situation here. Whatever Eoss had to say to these attorneys concerning the matter of collections was not on 1ns own behalf, but on behalf of the Finance Department and the Night & Day Bank, and that Department and the Night & Day Bank are not claiming the protection of confidential communications.

If Ross had consulted these attorneys regarding the proposed use of the money remitted to him, his disclosures could not have received the protection of confidential communications, because the rule does not extend to communications made in contemplation of a violation of the criminal law. [State v. Faulkner, 175 Mo. l. c. 594; Hamil & Co. v. England, 50 Mo. App. 346; Carney v. United Rys. Co., 226 S. W. l. c. 312.] A person cannot seek legal advice about how to commit a crime and on a trial refuse to divulge the conversation on the ground that it was confidential.

IV. Appellant asserts that his demurrer at the close of the State’s case should have been sustained because there was no proof that the Night & Day Bank was incorporated as alleged in the indictment. No ^y^g alleged that the Night & Day Bank was incorporated, .the State should have proved it in order to show that the money embezzled was legally in the custody of the defendant. A banking corporation was one of the institutions of whose property the Commissioner of Finance must take possession under Section 11700, Revised Statutes 1919.

The defendant is hardly in position to make that point now because the evidence that the Finance Commissioner took charge of the Night & Day Bank and its assets was offered and admitted without objection, all the parties assuming that it was an institution of which the statute authorized the Finance Commissioner to take charge under certain conditions, and that the proof supported the allegations of the indictment. There was no objection on the ground that the evidence was not admissible until the incorporation of the bank should be proved as alleged, nor that the proof was at variance with the averments. If such objection had been promptly made, the State would liave had an opportunity to. supply the omission.

The statute, Section 3334, describes the offense as one where the official shall convert to his own use, etc., “any moneys that may come to him by virtue of his official position. ”

Sections 11700 provides the conditions under which the Finance Commissioner may take charge of the effects of a bank whether it be a private bank or a corporation. And he is authorized under Section 11713 to do such acts and make such expenditures as are necessary to conserve its assets. It was not contended at the trial that the Night & Day Bank of which he took charge was not an institution that came within the terms of those sections, as alleged.

In this connection there was an instruction which required the jury to find that the Night & Day Bank wa's a corporation, and appellant claims error because there was no evidence of such incorporation to authorize that inState to prove more than necessary, understruetion. That instruction required the take an undue burden, and defendant has no right to complain. It was not necessary to make proof as we have seen, because the fact was assumed.

There was no variance or failure of proof in this respect. It is not claimed that the money embezzled belonged to a different institution from the one which the indictment alleged as the owner. Of course, if the State had not proved that the money embezzled was the money it to be, there would have been a variance. But of the institution which the indictment averred the allegation was that the defendant embezzled the money of the Night & Day Bank, and the proof showed it. The only difference between the pleading and the proof of which the defendant complains, is not in the identity of the institution, but in the language describing it. That is, the Night & Day Bank was alleged to possess a corporate character which the proof failed to show, a feature wholly immaterial so far as the crime is concerned&emdash;a mere insufficiency in the descriptio personae, although the description was sufficient to identify the institution. Under Section 3907, Revised Statutes 1919, such, a variance in the description of the individual owner of the money was not material unless the trial judge found it so. [State v. Dworkin, 307 Mo. 497.]

It is further claimed by the appellant that the money in question was not in fact the money of the Night & Day Bank after it got into the custody of the State. Appellant in making that argument, fails to say whose money it was. The assets which the Bank Commissioner took in °karSe did not belong to the State of Missouri, Ror the Finance Department, nor to the depositors and creditors of the bank until it was disbursed to them. It belonged to the bank. The bank was not dissolved. Its corporate entity remained and the property which it had possessed was held in trust by an arm of the State for the purpose of distribution to persons who might thereafter establish claims to it, so that. it was in fact the money of the Night & Day Bank.

V. A variance is claimed between the pleading and the proof because the proof shows that there was an embezzlement of the check for $3,342.27, and not an embezzlement of the money, the proceeds of the check. Proof of the embezzlement óf a check will not sustain a charge of the embezzlement of the money. [State v. Castleton, 255 Mo. l. c. 210.] The appellant cites in this connection the case of State v. Fischer, 249 S. W. l. c. 48, 49. In that case we pointed out that if the defendant had no authority to collect the check, when he collected it he embezzled the check and not the proceeds of the check. But if he had authority to collect the check and collected it and converted the money to his own use, he embezzled the money. In this case the check was made payable to Ross, as Deputy Finance Commissioner. He had a right to collect it in his official capacity and his collection of the money on the check was no crime. The conversion occurred when he obtained the money, diverted it from its proper channel, and applied it to his own use. Therefore, he embezzled the money and not the check.

It is a plain ease, the defendant’s gnilt was established by sufficient proof, and we find no error in the record.

The judgment accordingly is affirmed.

All concur.