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State v. Burgess.

and secrete with intent to embezzle and convert same to his own use," sufficiently charges the specific intent to fraudulently and feloniously embezzle and convert, since the word "embezzle" is a technical word and means a fraudulent appropriation to his own use or benefit of property or money entrusted to him by another. [Distinguishing State v. Pate, 268 Mo. 431, where the word "convert" standing alone is shown not to imply a criminal intent; and overruling State v. Schilb, 159 Mo. 130, and State v. Obuchon, 159 Mo. 256.]

3. EMBEZZLEMENT: Distinct Offenses: Conviction of Crime not Charged. Where the dendant was charged with the making away with and secreting certain money entrusted to him for investment, with intent to embezzle, and was tried for actual embezzlement, and by the jury was found guilty of larceny, and there was no submission of the offense charged, the verdict cannot stand. The offense charged and that submitted are entirely distinct. Under the statute, the act of embezzling and converting is one thing, and the act of making away with and secreting, with intent to embezzle, is another thing; and if the information charges the latter act, defendant cannot be convicted of the former.

4.

5.

: Instruction: Guilty of Larceny. Where a defendant is charged, under Sec. 4552, R. S. 1909, with having made away with and secreted, with intent to embezzle and convert to his own use, certain money, for which crime the statute says "he shall, upon conviction, be adjudged guilty of larceny," the instruction should not authorize the jury to find him guilty of larceny, but, when the facts warrant, should direct them to find him guilty of the offense charged in the information, and then, upon a verdict of guilty, the court should adjudge him guilty of larceny.

: Former Jeopardy. Evidence disclosing that defendant was found guilty of making away with and secreting, with intent to embezzle, $300 entrusted to him for investment in March, will not authorize a discharge upon a plea of former jeopardy when put upon trial for making away with and secreting with the intent to embezzle $450 entrusted to him by the same person for the same purpose in the previous December.

Appeal from Pemiscot Circuit Court.-Hon. W. S. C. Walker, Judge.

REVERSED AND REMANDED.

State v. Burgess.

Ward & Collins for appellant.

(1) The information in this case is fatally defective. The second subdivision of the statute does not denounce embezzlement, but the offense of making way with and secreting the property with intent to embezzle. State v. Lentz, 184 Mo. 237; State v. Larew, 191 Mo. 199. The gravamen of the offense herein is the intent to embezzle or convert to his own use, yet this information does not charge that this act of making way with and secreting the money was "with the felonious and fraudulent intent to embezzle and convert." It does say that making way with and secreting was fraudulent and felonious, but does not say with what intent it was done. Before the jury can find the specific intent as a fact there must be a charge in the information upon which to base it. State v. Lentz, 184 Mo. 287; State v. Gibson, 11 Mo. 99; State v. Cunningham, 154 Mo. 180; State v. Larew, 191 Mo. 199. (2) The information charges under the second subdivision of the statute, which is that Burgess made way with and secreted, with intent to embezzle and convert to his own use, while the instruction instructs under the first division of the statute, to-wit, that he did embezzle and convert to his own use. Sec. 4552, R. S. 1909; State v. Lentz, 184 Mo. 223; State v. Larew, 191 Mo. 192. "The defendant must be convicted on the charge in the information." State v. Crosswhite, 130 Mo. 358; State v. Casey, 207 Mo. 101; State v. Fink, 186 Mo. 50. (3) The verdict is not responsive to the instructions and was a verdict contrary to the instructions of the court, to-wit: (a) The information charged him with secreting the money as bailee with intent to embezzle. (b) Instructions authorized conviction, not for making way with and secreting with intent to embezzle, but embezzlement itself. (c) The verdict finds him guilty

State v. Burgess.

of larceny. State v. Burks, 159 Mo. 568; State v. Jones, 114 Mo. App. 343.

John T. Barker, Attorney-General, and Kenneth C. Sears for the State.

(1) The information should be held to be sufficient. Kelley, Criminal Law & Practice (3 Ed.), sec. 677; People v. Garcia, 25 Cal. 531. With a statutory crime, ordinarily it is sufficient for the information to contain the statutory elements. State v. Adams, 108 Mo. 211; State v. Moreaux, 254 Mo. 405. (2) The verdict was unfortunate in its form. State v. Broderick, 7 Mo. App. 21. But if the phrase "of larceny” be rejected as surplusage and a meaningless contradiction, a perfect verdict is left. State v. McGee, 55 S. C. 252; Johnson v. State, 63 So. (Miss.) 339; People v. Baer, 262 Ill. 155; McDaniel v. State, 64 So. (Ala.) 641.

REVELLE, J.-On the 8th day of June, 1915, the prosecuting attorney of Pemiscot County, Missouri, filed in the circuit court of that county a duly verified information charging that the defendant fraudulently and feloniously made away with and secreted certain property of one S. G. Hayden, with intent to embezzle and convert same to his own use. Upon trial he was found "guilty of larceny as charged in the information," and his punishment assessed at imprisonment in the penitentiary for a term of three

years.

On the part of the State the evidence tends to prove that in December, 1912, and in accordance with defendant's request that she permit him to handle her money for her, the prosecutrix, Mrs. Susan Hayden, delivered to defendant the sum of $450, to be by him deposited by her in an alleged institution which he represented existed, and which he stated would

State v. Burgess.

pay her interest at the rate of ten per cent per annum; that defendant had been the prosecutrix's physician for about six years, and that he represented that he would send the money to St. Louis to be invested in the concern in which he had invested his money, and that same could be withdrawn at the pleasure of the prosecutrix. The name of the alleged institution was not given, the defendant representing, however, that it was "à State affair" and perfectly safe, but of such a private nature that it was not allowed to give out much information. Some time after delivery of the money to defendant he told prosecutrix that a receipt therefor had been received by him. Later, it appeared that the alleged receipt purported to be a certificate of deposit, dated at St. Louis, Missouri, December 28th, and certifying that Susan Hayden had deposited with the Trimutual Association of St. Louis, Missouri, $450, same appearing to be signed by F. A. Wright and James D. Givens, President; and on the back of which was the following endorsement: "This certificate is guaranteed for full face value by me or my estate. W. J. Burgess, M. D." Until June 15th the defendant himself paid to Mrs. Hayden the interest on this sum, she denying that the Trimutual Association had ever sent her a check or made payment to her for interest. Demand was made for the principal sum upon defendant, but he refused to comply. J. S. Gossum, as attorney for Mrs. Hayden, made a trip to St. Louis in an effort to secure information concerning the Trimutual Association or Givens and Wright, whose signatures purported to be on the alleged certificate of deposit. He, with the aid of an assistant circuit attorney of St. Louis, examined the city directory and inquired at the Mercantile Trust Company, and the Dunn and Bradstreet reporting agencies, but no information of the association or of Givens or Wright could be ob

State v. Burgess.

tained. The defendant also refused to give to Mr. Gossum any information relating to these matters.

The State offered some evidence for the purpose of showing that the purported certificate of deposit which was delivered to Mrs. Hayden was prepared at the defendant's instance. and in his office.

The evidence also discloses that at a different time the defendant secured two other sums of money from the prosecutrix, one amounting to $300, delivered to him in March, 1913, and for this transaction the defendant was also prosecuted and tried at another time and found guilty. It was upon this showing, that defendant based his claim to a discharge because of former jeopardy.

The defendant offered a number of witnesses who testified to his good reputation.

I. It is strenuously insisted that the information in this case is insufficient, in that it does not specifically charge that the secreting and makInformation. ing way with the property was done with a felonious or otherwise fraudulent intent. The information, omitting formal parts, is as follows:

"One W. J. Burgess, became and was the bailee of four hundred and fifty dollars, good and lawful money of the United States, the personal property of Mrs. S. G. Hayden, then and there being and of the value of four hundred and fifty dollars, which said money was delivered to the said W. J. Burgess as bailee for depositing to the credit of the said S. G. Hayden, and being so the bailee thereof, the said W. J. Burgess, the said money, did then and there fraudulently and feloniously make way with and secrete with intent to embezzle and convert same to his own use; and so the said W. J. Burgess the said four hundred and fifty dollars, in manner and form aforesaid feloniously did steal, take and carry away.

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