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State v. Pate.

7. EVIDENCE: Conclusions from Admissions. A witness should not be permitted to state his inferences and conclusions as to what defendant meant by statements and admissions made to him.

Appeal from Shannon Circuit Court.-Hon. W. N. Evans, Judge.

REVERSED AND REMANDED.

L. B. Shuck and Sebree & Orr for appellant.

(1) The evidence on the part of the State is insufficient to support a verdict of guilty under a charge of embezzlement of money. There is no evidence that defendant embezzled the sum charged, or any sum at any time. State v. Mispagel, 207 Mo. 557; State v. Martin, 230 Mo. 680; Hanna v. Insurance Co., 241 Mo. 400; State v. Moreaux, 254 Mo. 398; State v. Castleton, 255 Mo. 201; State v. Hamilton, 263 Mo. 300. (2) Instruction No. 2 given on behalf of the State is erroneous, in that it omits the necessary elements of the offense of embezzlement. It fails to require the jury to find that the defendant with a felonious or fraudulent intent converted the money of the bank to his own use, and such requirement is not contained in any other instruction given. State v. Cunningham, 154 Mo. 161; State v. Schilb, 159 Mo. 130; State v. Obuchon, 159 Mo. 256; State v. Rigall, 169 Mo. 659; State v. Lentz, 184 Mo. 223; State v. White, 237 Mo. 208. (3) The court committed error to the prejudice of the defendant by refusing instruction No. 1 requested by the defendant. Because the State was permitted to read to the jury several depositors' accounts, showing false entries in red, indicating that those accounts were overdrawn. And defendant's contention was throughout, that these did not furnish proof of the charge of embezzlement of money. See cases under point one. (4) The court also committed error in refusing instruction No. 2 asked by the defendant, because it correctly states the

268 Mo.-28

State v. Pate.

law, and it was necessary that the jury be cautioned against erroneous views from the reception of these book accounts. If these accounts were competent for any purpose they were competent to show (1) that on the dates named in the information defendant received money of the value of $30 or more or (2) to show intent in connection with other proof of taking money. But these accounts did not contain a single date which corresponded with dates charged. There was no evidence to show the corpus of the crime charged and hence these accounts were not even evidence of intent. (5) The court erred in admitting the testimony of Hal Woodside relative to the conversation with defendant about the accounts of Robert Boram, what he inferred, and what was meant in reading from his notes.

John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.

Instruction No. 2 is a proper instruction. This instruction follows the statute, Sec. 4550, R. S. 1909. It is true, as contended by the appellant, that at common law there was no crime known as embezzlement, and it must necessarily follow that a complete description of such crime is set forth by the statute. The court will notice that the statute is in the disjunctive, and that if any officer, agent, clerk, servant, or collector of any company shall embezzle, there has been a crime committed, or if he shall convert to his own use, as set forth in the above instruction, a crime has been committed, or if he shall take, make way with or secrete with the intent to embezzle or convert to his own use, separate crimes have been committed, if the disjunctive is noticed. The statute does add the words, "without the assent of his master or employer," and the words "without the assent of such bank" are to be found in this instruction.

State v. Pate.

REVELLE, J.-After due preliminary proceedings the prosecuting attorney of Shannon County filed in the circuit court of that county his duly verified information, consisting of fifteen counts, and charging the defendant in certain counts thereof with embezzlement from the Bank of Birchtree, and in others with falsifying the records of said bank with intent to defraud. The counts as to the falsification of the records were dismissed, and defendant was tried on those charging embezzlement. He was convicted on the third count, which charged the embezzlement of $600 on the 19th day of June, 1911, and his punishment was fixed at imprisonment in the penitentiary for a term of two years.

Because of the numerous counts the evidence extends over rather broad fields, and on the part of the State discloses that during the years 1911-12 defendant was cashier of the Birchtree State Bank, which was organized sometime in the year 1905. On August 28, 1913, the State Bank Examiner, in the course of his duties, made an examination of the bank, which disclosed irregularities and discrepancies and a financial impairment of $14,000. This shortage, or at least a portion thereof, had been covered up and concealed by means of false entries, which defendant admitted he had made upon the books of the bank. This was done by failing to credit to the account of the depositors the correct amount which he deposited, the same being transferred and credited upon the books to the account of the defendant. In some instances no record was made of the deposit, but the money was directly appropriated by the defendant to his own use. In numerous cases the books disclosed that certain patrons and depositors of the bank were overdrawn in their accounts, when in truth and fact the bank was indebted to them, and, instead of the books disclosing a shortage in their account, they should have shown a

State v. Pate.

credit, ranging in various sums. For instance, and according to the admissions of the defendant, the sum of $465.45 had been "switched" from the account of Andrew Asp to the account of the defendant; the account of the Birchtree School District showed an overdraft of $54.51, and defendant admitted that he had taken $600 from this account; the bank's records disclosed an overdraft of Robert Boram in the sum of $724.12, and defendant admitted that he himself was responsible for $380 of the alleged overdraft; from the account of W. N. Bradford, Pate had transferred to his own account $485.49; and from the account of Mary E. Stewart the sum of $600. These are but instances of the course and system of the defendant, and are sufficient for the purposes of this review.

Upon being confronted with the disclosures which the official examination made, the defendant at first insisted that the bank examiner was mistaken, and that the discrepancies and differences appearing between the entries on the books and the true facts could be consistently explained. Later, however, he admitted substantially that the books were incorrect and that he had transferred to his own account and had used the money of the various persons who had made deposits with the bank, and further that if allowed time he would pay to the bank the amount of his shortage.

On the part of the defendant the evidence tended to show that he bore a good reputation in the community in which he then lived and had lived at former times. He himself testified and denied that he had ever converted to his own use any of the money belonging to the bank.

Such other facts as are deemed important will be referred to in the opinion.

State v. Pate.

I. The assignment first invoking our attention is that instruction No. 2 is erroneous, in that it does not require the jury to find that defendant feloniously or fraudulently converted the money without the assent of the owner. The instruction, omitting parts

Instruction:
Criminal
Intent.

immaterial here, reads:

"And while acting as such cashier did then and there unlawfully convert to his own use any of such money belonging to such bank in any sum to the amount of thirty dollars or more without the assent of such bank, then you shall find defendant guilty," etc.

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It will be noticed that the instruction does not use the term "embezzle,' nor does it require that the act of conversion be felonious or fraudulent, or be done with a felonious or otherwise fraudulent intent. Since the statute upon which the indictment is predicated does not couple with the prohibited act any specific intent, but makes the commission of the act itself the offense (State v. Lentz, 184 Mo. 223; State v. Larew, 191 Mo. 192), it was unnecessary that the instruction purporting to cover the offense specifically mention the element of intent, provided its terms were otherwise sufficient to include, in a general way, all the elements essential to a commission of the act forbidden. We do not mean by this that a felonious or otherwise fraudulent intent is not a necessary element of the offense, but that in the general instruction it need not be specifically mentioned, provided the instruction properly covers the prohibited act itself, but to do this, that is, to cover the offense of criminal conversion such terms must be used as will include the element of criminal intent, and forbid a conviction in its absence.

The instruction under consideration merely requires the jury to find that the defendant unlawfully converted the property without the assent of the

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