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State v. Pate.

owner. The term "convert" does not imply any criminal intent. It is defined in Black's Law Dictionary, p. 267, as follows: "An unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of the owner's rights." It is said that every unauthorized taking of personal property, and all intermeddling with it, beyond the extent of authority conferred, in case a limited authority has been given, with intent to so apply and dispose of it as to alter the condition or interfere with the owner's dominion, is a conversion. [Laverty v. Snethen, 68 N. Y. 522; Field v. Sibley, 77 N. Y. Supp. 252; Watt v. Potter, 29 Fed. Cases, 438; Railroad v. Lawson, 88 Ky. 496; Abrahams v. Southwestern R. R. Bank, 1 S. C. 441.] A wrongful intent is not an essential element of a conversion. It is enough that the rightful owner has been deprived of his property by some unauthorized act by another assuming dominion or control over it. [Klein v. Cohen, 127 N. Y. Supp. 1. c. 174, 142 App. Div. 500; Ferrera v. Parke, 23 Pac. 1. c. 885; Pease v. Smith, 61 N. Y. 477; Trust Co. v. Tod, 170 N. Y. 233; Mohr v. Langan, 162 Mo. 474; Velzian v. Lewis, 16 Pac. 631.]

There can be conversions under such circumstances as to not constitute a crime, and the term "unlawful," as used in the instruction, does not add to its meaning. In fact, most acts of conversion (equitable conversion excepted) are unlawful, because in violation of civil rights of others, although many of them are committed under an honest belief of right, and with no criminal intent. Such are not criminal, and yet this instruction. makes no distinction.

We are enjoined by section 8057, Revised Statutes 1909, to give to words and phrases their plain or ordinary and usual sense, and with technical phrases having a peculiar and appropriate meaning in law to give

State v. Pate.

meaning according to their technical import. The term "embezzle" is not synonymous with the term "convert," but is synonymous with the term "fraudulently convert." [Spalding v. People, 172 Ill. 40; Metropolitan Life Ins. Co. v. Miller, 71 S. W. 921; Teston v. State, 39 So. 787.]

As heretofore stated, this instruction does not use the terms "embezzle" or "fraudulently convert,' but merely the words "unlawfully convert." Had it used the word "embezzle" in connection with the word "convert," it is our opinion that it would have been sufficient, particularly had such words been defined in other appropriate instructions. [State v. Burgess, ante, p. 407.] This subject has received the attention of this court on former occasions, and in State v. Cunningham, 154 Mo. 1. c. 178-9, it was said:

"A much more serious question is with respect to the failure of the instruction to tell the jury that in order to convict the defendant they must believe from the evidence that he converted the money to his own use without the assent of McLemore with a felonious or fraudulent intent to deprive him thereof. The State, however, contends that the only intent required by the statute is that the defendant should have intended to convert the money to his own use without the assent of his principal, and that if he unlawfully did so he is guilty under the statute. There was no such crime as embezzlement at common law; it is purely a statutory offense, and as to such offense, it is said, "There must be an evil intent, though the statute is silent on the subject.' [Bishop's Criminal Law (6 Ed.), sec. 345.] So in 10 Am. & Eng. Ency. Law (2 Ed.), 996, it is said: 'To constitute embezzlement, it is necessary that there shall be a criminal intent. Most of the statutes, by the use of various terms, expressly require this. Even when they do not, the necessity for such an intent is to be implied. There must be, as in larceny, a fraudulent intent to deprive

State v. Pate.

the owner of his property and appropriate the same.' [Eilers v. State, 34 Tex. Crim. 344.] The word unlawfully where used in the instruction does not supply the word felonious, or the words fraudulently, etc., for while defendant may have unlawfully converted the money to his own use, it does not necessarily follow that he did so with a felonious or fraudulent intent, and unless he did so with such intent he is not guilty of embezzlement, although the statute does not in express terms require that there shall be a criminal intent. [State v. Reilly, 4 Mo. App. 392.] Many things are unlawfully done which are not crimes, because the criminal intent is wanting."

And in State v. Schilb, 159 Mo. 1. c. 140, the court said:

"The State's fourth and fifth instructions are challenged upon the ground that they omit to require the jury to find any fraudulent intent on the part of defendant in converting either the money or property of Harris to his own use. It is well settled that no one can be convicted of felony in this State in the absence of an intent to do a criminal act (State v. Noland, 111 Mo. 473; State v. Cunningham, 154 Mo. 161), but such intent in case of embezzlement may be inferred from a felonious or fraudulent conversion. In 2 Bishop's New Criminal Law, secs. 372, 373, 379, it is said: "The gist of common-law larceny is the felonious "taking" of what is another's, with the simultaneous intent in the taker of misappropriating it; but in the statutory embezzlement there is no felonious taking, for the thing comes to the servant by delivery, either from the master or a third person, so that the question now is, by what act, after it is received, does the servant commit the embezzlement? The rule of law appears only indistinctly in the books. Still, we may infer from the authorities, and from the reasons inherent in the question, that if the servant intentionally does with the property under

State v. Pate.

his control what one must intend to do with property taken to commit larceny of it, he embezzles it, while nothing less is sufficient; or, assuming the needful criminal intent to exist, he must and need only do what in our civil jurisprudence is termed "conversion," defined to be any dealing with the thing which, impliedly or by its terms, excludes the owner's dominion. To illustrate: if the servant instead of delivering the property to his master or another, as required by his duty, pledges it for his own debt, or runs away with it, or neglects or refuses to account for it, or otherwise wrongfully diverts its course towards its destination to make it his own, he embezzles it. The felonious or otherwise fraudulent intent is an essential element, yet if a man commits the act of embezzlement the presumption is that he means to embezzle.' [Spalding v. People, 172 Ill. 1. c. 55.]

"For these reasons the instructions are erroneous and should not have been given as they were."

These cases are cited in State v. Rigall, 169 Mo. 659, and the doctrine therein announced again approved and applied. As early as Witt v. State, 9 Mo. 1. c. 673, SCOTT, J., said:

"It will thus be seen from what has been observed, that there cannot be a larceny without a felonious intent. That the taking the personal goods of another without this intent, may be a trespass, but it cannot amount to larceny. The prisoner, then, might have done every act supposed by the instruction of the court without being guilty of a felony. The instruction defined a trespass, and not a larceny, and it was error to have told the jury that the commission of the acts mentioned in it, rendered the prisoner guilty of larceny."

Because of the failure to include the element of criminal intent the court in the case just quoted from declared that the instruction defined trespass, but not larceny, and so with the instruction in the instant case,

State v. Pate.

we may say that it defines a civil conversion, as distinguished from a criminal or fraudulent conversion. The only distinction between trespass and conversion is that trespass is a mere seizure or unlawful handling of the property, while conversion is characterized by usurpation of ownership.

It is urged, however, by the State that the error in instruction number 2, is cured by instruction number 6, but to this we do not agree. In the first place, it will be observed that instruction number 2, purports to cover the entire case, and with such an instruction this court holds, not only in criminal but civil cases as well, that it must include all of the essential elements. It is, of course, different with instructions dealing only with some particular element or phase of a case. An examination of instruction number 6, discloses that it was not intended to aid or supplement instruction number 2, and that it relates only to a matter which the court declares constitutes no defense to the charge. It is our opinion that it in no manner explains or supplies the defects in instruction number 2.

II. Defendant next insists that the evidence in this case is insufficient to sustain the verdict, but we do not deem it necessary to burden the opinion with any lengthy discussion of that question, as the testimony relative to his acts in connection with the money which had been deposited not only by Robert Boram and A. J. Lang, but also by others, is sufficient to establish the case against him. These acts did not constitute an embezzlement of money belonging to the individual depositors, but money of the bank, because it is well-settled that when money is deposited in a bank and is mingled with its general funds it becomes the property of the bank, the transaction creating the relation of debtor and creditor. The evidence of his "switching" and transferring money

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