author: FARIS, P. J.

text:
    MERAMEC SPRING PARK COMPANY, Appellant, v. THOMAS R. GIBSON.
    Division Two,
    July 5, 1916.
    1. CORPORATION: De Facto: Organization Never Perfected: Collateral Attack. Notwithstanding the articles of association of a corporation, recorded in its domiciliary county, were not filed with the Secretary of State and the company for that, reason never become a de jure corporation, and notwithstanding the fact that the articles do not set forth the term of the corporation’s existence and its life for that reason was limited to twenty years, if it held itself out to the world as a corporation and proceeded to act and hold property as a corporation, its existence as such cannot.be attacked in a collateral proceeding, such as a suit to determine the interest of the grantee in a tax deed made in pursuance to a suit for- taxes brought against the corporation two years after the twenty years’ period had expired. •
    2. -: Death by Statutory Limitation: Suit. A corporation whose existence has culminated by the expiration of its char- • ter life cannot be sued, for the statutory limitation ipso facto works its corporate. death, and all its property goes to its directors as trustees for the stockholders; and that is just as true of a de facto as of a de jure corporation.
    3. -: -: Suit For Taxes: Collateral Attack. A' corporation cannot be sued for taxes after its corporate death has been wrought by the efflux of time, or the expiration of the time for which according to its articles and the statute it had corporate life; and if after the,corporation’s death a suit is brought for taxes against land which the county records show belongs to it and in pursuance to a judgment rendered therein the land is sold, the deed is void, and the claimant of the land under a deed made by its directors after its charter existence had terminated, can, in a suit with the grantee in the tax deed td determine the title, show all those facts to defeat the grantee’s title.
    Appeal from Crawford Circuit Court. — Eon. R. A. Breuer, Judge.
    Reversed and remanded (with directions).'

      A. H. Harrison for appellant.
    (1) -By the general law in force at the time the Meramec Iron Company was incorporated it was provided that “every corporation, as snch has power: First, to have succession fey its corporate name, for the period limited in its charter, and when no period is limited, for twenty years.” G-. S. 1865, p. 362, sec. 1. And that “upon the dissolution of any corporation —the president and directors, or managers of the affairs of said corporation, at the time of its dissolution — shall fee trustees of such corporation, with full power to settle the affairs,” etc. Gr. S. 1865, p. 329, sec. 19. This feeing the law, which has been carried forward in evéry revision since that time down to the present, the Meramec Iron Company had been dissolved fey operation of law at the date of the institution of the suit against it for hack taxes in 1894, and no suit could fee maintained against it. The title to the land it formerly owned was in the surviving directors. Bradley v. Reppell, 133 Mo. 545; Richards v. Coal So ¡Mining Co., 221 Mo. 149; State ex rel.' v. Road Co., 207 Mo. 54; State ex rel. v. Road Co., 138 Mo. 332; Landis v. Saxton, 105 Mo.'486; Gr. S. 1865, p. 326, sec. 1 (now Sec. 2990, R. S. 1909); Q. S. 1865, p. 329, sec. 19 (now Sec. 2995, R. S. 1909) ; Aldridge v. Pardee, 60 S. W. 789. After a corporation becomes dissolved, it can neither sue, nor fee sued, unless the faculty of suing or being sued is prolonged fey statute for the purpose of winding up its affairs. 6 Thomp. Corp.', sec. 7360; Stiles v. Oil So Coal Co., 36 S. E. 986; Thornton v. Railroad, 123 Mass. 32. No judgment can fee rendered against a corporation after its dissolution. Thomp. Corp. (2 Ed.), see. 6564; Kinney v. Ice Cream Co., 57 N. Y. App. Div. 206; Pendleton v. Russell, .144 U. S. 640; 10 Cyc. 1323, sec. 8-A; Thornton v. Railroad, 123 Mass. 32; 10 Cyc. 1271; Scanlan v. Crenshaw, 5 Mo. App. 337; Fairchild v. Masonic Hall Assn., 71 Mo. 526; Cross-man v. Water Co., 150 Cal. 575; 5 Thompson on Corp., secs. 6721, 6722, 6723; Clark & Marshall on .Private Corporations, secs. ,322, 329; Angelí & Ames on Corporations, sec. 195; 2 Morawitz on Corporations, sec. 1031; 7 Am. & Eng.' Ency. Law, p. 854; Bank v. Colby, 21 Wall. 609; Mnmma v. Potomac Co., 8 Pet. 281; Sturges v. Vanderbilt, 73 N. Y. 383; Rogers v. Adriatic Co., 148 N. Y. 38. (2) There can be no serious doubt that such a void judgment can be collaterally impeached and its invalidity shown by anyone interested, such as one entitled either as a creditor or stockholder to participate in the assets of the corporation. Crossman v. Water Co., 150 Cal. 575.

      Frank H. Farris for respondent.
    (1) Aside from the objections made to the tax proceedings upon which respondent’s title rests, appellant raises the further issue that the corporation known as the Meramec Iron Company had become extinct and was dead as a matter of law, and that even though the proceedings in the .tax suit were regular and valid, no suit could be maintained against such corporation and no judgment rendered against it, any more than a suit could have been maintained and a judgment rendered against a dead person. Appellant bases this contention on the theory that it became a corporation de'jure under the statute of 1865 which provided that unless otherwise stated in the articles of incorporation the life of the corporation could run only twenty years, and that at the end of the twenty years said corporation became dissolved as a matter of fact and its franchises ceased and the title to its property vested in its board of directors as trustees. The appellant was not a corporation de jure but a corporation de facto. Gr. S. 1865, sec. 2, p. 327; State ex rel. v. Medical College, 59 Mo. App. 267; 3 Ruling Case Law, p. 48, sec. 48; 10 Cyc. 253; 2 Cook on Corp. (5 Ed.), pp. 637-1416; 7 R. G. L., sec. 49. (2) The existence of this corporation could not be attacked by any person other than the State; and the corporation itself cannot deny its existence at the time of the bringing of the tax suit and the rendition of the judgment against it, and the sale of the land under such judgment. In other words, the rightful existence of the corporation cannot be raised in a collateral proceeding. 10 Cyc. 256; 7 R. C. L., see. 49; Barbour v. Occidental Grove, 4 Mo. App. 434; Rutherford v. Williams, 62 Mo. 252; Stoutimore v. Clark, 70 Mo. 477; Stubacker Bros. v. Montgomery, 74 Mo. 103; Franklin Saving Inst. v. Board of Education, 75 Mo. 411; Catholic Church v. Tobin, 82 Mo. 424; Mining Co. v. Richards, 95 Mo. Ill; Coal Co. v. Bingham, 97 Mo. 213; Finch v. Ullman, 105 Mo. 263; Black v. Early, 208 Mo. 303. (3) The doctrine is universally settled that a corporation may exist de facto, when not de jure. It has an existence which is perfectly valid in so far as the rights of third persons are concerned, but' which, nevertheless, cannot be maintained against the "State. That is, it may exist so long as the State acquiesces and does not institute proceedings to oust it. 10 Cyc. 520; 7 R. C. L., sec. 48; Railroad v. Railroad, 2 L. R. A. (N. S.) 146;. State ex rel. v. Medical College, 59 Mo. App. 267,
   FARIS, P. J.

— This- is an action to determine interest in certain real estate situate in Crawford County. Upon trial defendant had judgment, and plaintiff has appealed.

The common source of title is the Meramec Iron Company. Defendant claims through mesne conveyances from a sheriff’s deed bottomed upon a judgment and sale for taxes in an action instituted by publication against the Maramec -Iron Company. The plaintiff claims through a conveyance made in 1902 by all of the surviving directors of the Maramec Iron Company (sic), which conveyance was made pursuant to a written request of all the stockholders of said last •named company. The Meramec Iron Company attempted to organize as a corporation under the provisions of chapter 62 of the General Statutes of 1865, on the 20th day of April, 1870. On said last mentioned date one William. Jones and five others signed and acknowledged articles of association of the said Meramec Iron Company, obviously with the intention of organizing the same as a private business corporation. These articles of association were duly filed and recorded in the office of the recorder of deeds of Phelps County, Missouri, on December 12, 1871, but no, copy thereof was ever filed in the office of the Secretary of Státe. In September, 1872, a meeting of the incorporators of said company was duly held pursuant to notice, at St. James, Missouri, which town was designated as the place of the principal office of the company. Other meetings of the stockholders of the Meramec Iron Company were held from time to time during the following twenty years at divers places, among others, at the Southern Hotel in St. Louis, pursuant to changes made and entered of record in the minutes of the company. ■ So far as the record before us discloses, the last meeting ever held by the board of directors of this company was held on the 14th day of October, 1891, in the city of St. Louis.

On the 2nd day of January, 1894, an action was begun in the circuit court of Crawford County by the collector of revenue, of that county against the Meramec Iron Company for taxes upon the land here in controversy. This action was commenced by filing, among other things, an affidavit for an order of'publication,, which order was duly made so far as concerns the point here, and duly published for a sufficient length of time. This order recited that the' Maramec Iron Company was defendant therein. It will be noted that the name “Meramec” is misspelled in said order and that no designation of said Meramec Iron Company as a corporation appears therein. The allegation of non-residence in this order of publication is, to-wit: “That the defendant is k non-resident' of the State of Missouri so that ordinary process of law cannot he served upon Mm or them as the case may be.” In due course, judgment by default was rendered against the Maramec Iron Company for the delinquent taxes for which the suit last above mentioned was instituted. Thereafter a sale of this land was had and thereat it was purchased by one M. A. Leftwich, who subsequently conveyed it to one A. H. Harrison (now, apparently attorney for appellant herein), who in turn conveyed it to defendant. Defendant subsequently conveyed it, hut later, and prior to this action, again purchased it and yet owned it at the time he was sued herein.

It is conceded that the surviving directors of the Maramec Iron Company who conveyed the land in controversy to the plaintiff, were- all of the surviving directors of the Meramec Iron Company. And since no point seems to he made upon this conveyance we need not set it forth (nor the facts concerning it) •more at length. In passing it may he stated that in the written request to the said surviving directors of. the Meramec Iron Company to convey the land in dispute to plaintiff here, the word Meramec, is spelled once as last above herein and once it is spelled Maramec. Also, it may he observed, that in'the deed of conveyance made pursuant to the above request by said surviving directors of the Meramec Iron Company, the word “Meramec” as it appears in the title, of said Iron Company, is spelled thirteen times Maramec and not once otherwise. Which fact, we predict, will prove unlucky for plaintiff if we shall come so far as to reach it in our discussion.

Upon a trial of the case before the court (at which trial no instructions were asked or given on either side), judgment was rendered for defendant, adjudging him to be the owner in fee of the land in dispute. Such judgment, inevitably, as a necessary incident, required a finding by the court that the sale of the land for taxes was in all things valid (as against a collateral áttack) and sufficient to divest title out of the Meramec Iron Company and to vest it, through mesne conveyances, in defendant. All other questions, seem to be conceded throughout the record; at least there is no controversy made in the briefs upon either side about them. t

To a determination of this question, in the light of the various attacks thereon, our discussion of the case will be directed. In the discussion of it, if other facts shall become necessary we shall state them.

I. Many novel and interesting questions are mooted in the briefs of learned counsel upon the record before us. Among these are: (a) Is Maramec Iron Company idem sonans with Meramec Iron Company? (b) Does an attempt to organize a corporation, which fails to create a de jure corporation for lack of following the law, have the effect to create a de facto corporation? (c) Is it necessary to sue such a body as a corporation? (d) Is service by publication upon such a (legally) abortive aggregation bad for that it follows the statute which prescribes the manner of service upon a nonresident individual, rather than that prescribing the manner of service by publication upon a de jure corporation? (e) Does such an abortive aggregation expire and become ipso facto dissolved by statutory limitation in twenty years (absent other time fixed in the articles of association) under the statute of 1865? [Sec. 1, p. 326, G. S. 1865.] (f) If it does so expire in whom does the title to its land vest? (g) Is such an aggregation dissolved and dead in the sense that after snch dissolution hy limitation it may not he sued for taxes in the quasi- name of the aggregation, in which name it carried its real estate upon the land records? In short, after expiration hy limitation is such an aggregation dissolved and dead within the purview of sections 11498 and 11499, Revised Statutes 1909, and of our ruling that a dead person cannot he sued for taxes, even though he be seemingly the record owner? [Sec. 11498, supra.]

It will be instantly appreciated that all of these questions are interesting; many of them are novel, and some of them are very close and difficult; largely because in any view which we may take, we must in our consideration thereof seem to beg many questions and assume as facts things.which are in reason contradictory antitheses of each other.

II. We take the last point first, and recur to some of the pertinent facts, which were that more than 21 years elapsed after the Meramec Iron Company filed its articles of association in the office of the recorder of deeds of Phelps County and after it held meetings. of its board of directors as a pseudo-legal corporation, till it was sued for taxes on January 2, 1894. These articles of association did not set forth the period during which the proposed corporation should exist, and it follows that under the statute then' (and now) (Sec. 2990, R. S. 1909) in force, its life as a corporation was limited to twenty years (Sec. 1, p. 326, G-. S. 1865), if we are permitted to apply the same rule, to a de facto corporation as we apply to a de jure corporation. This period of twenty years had expired somé two years before the suit for taxes was. begun against it. Learned counsel for respondent concedes, in making another point, that while the Meramec Iron Company was not organized as a corporation pursuant to the statutes then in force, and while its corporate existence would not have been proof against a direct attack by the State, nevertheless since it held itself out to the world as a corporation and proceeded to deal and act and hold property as a corporation, its existence as a corporation cannot he collaterally attacked. In this view we are forced to acquiesce. While confessedly, for lack of a charter issued by the Secretary of State, the Meramec Iron Company never became a private corporation de jure, yet by reason of the existence of statutes which permitted it to be organized, for user of the powers it assumed, by its taking part of the necessary steps to organize as a corporation, it became (at least) as to all persons attempting to attack it collaterally, a de facto corporation, and thus (in such case and against such persons) entitled to all the rights, privileges and liabilities of a corporation de jure.

Did' it so far expire by statutory limitation as that it could not he sued as a corporation twenty-two years after its attempted organization? We think that this question must he likewise answered in the affirmative. It has been held in this State under our statute (Sec. 19, p. 329, G. S. 1865) that after the expiration by statutory limitation of a corporation’s life, its property goes to its directors as trustees for the stockholders, and does not, as at common law, revert to the grantor. [Bradley v. Reppell, 133 Mo. l. c. 552; Richards v. Coal Co., 221 Mo. l. c. 158.] From this alone it follows on principle that the defunct corporation could not be sued after its dissolution and death by the expiration of its charter; in such wise, at least as to foreclose a lien against lands it no longer owned; hut which by operation of law had passed to its late directors as trustees for its shareholders. For the corporate entity is dead ipso facto (10 Cyc. 1271) when its statutory years are accomplished and its holdings of whatever sort, by force of the statute, pass to others. . [Sec. 19, p. 329, G. S. 1865; Bradley v. Reppell, 133 Mo. l. c. 552; McCoy v. Farmer, 65 Mo. 244.]

While thus on obvious principle it would appear to follow that no action can be maintained against a corporation after it expires by statutory limitation, and that a judgment against such defunct corporation is absolutely void, we have not in this State been able to find a case so holding in express terms. But in the Federal courts, and in other jurisdictions, as shown by the text-books and the cases themselves, this rule seems to be settled beyond dispute. In the case of Pendleton v. Russell, 144 U. S. l. c. 644, it was said:

“Looking at the judgment of the circuit court of the United States, we are satisfied that the ruling of the Court of Appeals was correct. That judgment purports to be against the insurance company, Put that, company, at. the time, had no legal existence. It had been dissolved and its franchises, rights and privileges declared forfeited by a decree of the Supreme .Court of New York, in a proceeding brought by the Attorney General of the State, in the name of the people, and a receiver appointed of the effects of the corporation. The judgment was therefore no more .valid against a non-existing corporation than it would have been if rendered for a like amount against a dead man. The receiver was not substituted in the place of the dissolved corporation; no process or citation was issued by that court to bring him before it, nor any proceeding taken for that purpose. Nor would such a proceeding have had any effect, for, the corporation having expired, the suit itself had abated. ’ ’

In the case of Crossman v. Vivienda Water Co., 150 Cal. l. c. 580, it was held: “It is settled beyond question that, except as otherwise provided by statute, the effect of the dissolution of a corporation is to termínate its existence as a legal entity, and render it incapable of suing or being sued as a corporate body or in its corporate name. It is dead, and can no more be proceeded against as an existing corporation than could 'a . natural person after Ms death. There is no one who can appear or act ’for it, and all actions pending against it are abated, and any judgment attempted to be given against it is void. As to this, all' the text-writers agree, and their statement is supported by an overwhelming weight of authority. [See 5 Thompson on Corporations, secs. 6721, 6722, 6723; 2 Clark &• Marshall on Private Corporations, secs. 322, 329; Angell & Ames on Corporations, sec. 195 ; 2 Morawetz on Corporations, sec. 1031; 10 Cyc. 1316; 7 Am. & Eng. Ency. of Law, p. 854; Pendleton v. Russell, 144 U. S. 640; National Bank v. Colby, 21 Wall. 609; Mumma v. Potomac Co., 8 Pet. 281; Sturges v. Vanderbilt, 73 N. Y. 384; Rodgers v. Adriatic F. Ins. Co., 148 N. Y. l. c. 38.] ”

Likewise it was so held m the late case of Venable Bros. v. Southern Granite Co., 135 Ga. 508, 32 L. R. A. (N. S.) 446. In an excellent note to the above case to be found in the citation last above, it is said: “The doctrine is well established that in the absence of statutory regulation, the expiration of corporate life hy. lapse of time or decree of dissolution works an abatement of pending actions at law or against it, the reason being that its existence as a legal entity is ended, and therefore a judgment subsequently rendered will be void.” [Nelson v. Hubbard, 96 Ala. 238; Wilcox v. Continental Life Ins. Co., 56 Conn. 468; Terry v. Bank, 66 Ga. 177; Eagle Chair Co. v. Kelsey, 23 Kan. 632; Bank v. Trimble, 6 B. Mon. 599; Musson v. Richardson, 11 Rob. (La.) 37; Read v. Bank, 23 Me. 318; Olds v. Trust Co., 185 Mass. 500; Torry v. Robertson, 24 Miss. 192; Greenbrier Lumber Co. v. Ward, 30 W. Va. 43; National Bank v. Colby, 21 Wall. 609; Pendleton v. Russell, snpra.] Nor is it in our view necessary to overrule the case of Board of Commrs. v. Shields, 62 Mo. 247, or St. Louis Gas Light Co. v. St. Louis, 84 Mo. 202. For in the instant cáse the Meramec Iron Company does not assert its continued existence, nor had it used its corporate offices for some three years before it was sued on the 2nd day of January, 1894. In the Shields case and in the Gas Light Co. case, supra, the pseudo-corporations were using their corporate powers and asserting their corporate existences, and the opposing parties had been dealing with them as corporations; while in the instant case the Meramec Iron Company tacitly concedes its death, as also expressly do its directors and shareholders. But it is plain and obvious that if the two cases last mentioned are opposed to the view that after the expiring of a corporation through statutory old age, a judgment against it is not void, then those cases are opposed, not only to the universal weight of authority, but to all reason and principle. Of course, if it be true as the cases hold, that a judgment which is rendered against a corporation after its dissolution by statutory expiration is void, it follows that such judgment being void may be attacked collaterally.

If it be urged that since in truth, for lack of compliance with section 2 of chapter 62 of the Revised Statutes of 1865, the Meramec Iron Company never became a de jure corporation, but became nevertheless by virtue of its efforts to follow the law, and of its use'r of corporate powers a de facto corporation, and that having become such de facto corporation it would continue by user to be a suable de facto corporation indefinitely, the answer is that a de facto corporation exists because (and only when) there is a law or statute permitting its incorporation for the purposes and with the powers assumed, but which law was not followed (though attempted so to be) in its organization. Therefore a de facto corporation, just as does a de jure corporation, ceases to exist as soon as the law which allows it to exist has failed. Here the law forbids either private or collateral attack, it is true, but if the Meramec Iron Company had been a de jure corporation it could not have existed longer than twenty years, because under the facts here there was no warrant of law for a longer life for this sort of corporation, and the moment its span .of life reached the statutory limit it would, ipso facto, have ceased to exist instantly. [10 Cyc. 1271.] Since, we repeat, no de facto corporation can exist,' except where there is law allowing a corporation to be formed and co use the powers of a corporation for the purposes set out in its articles of association, so no de facto corporation can continue to, exist even by continued user, after the term fixed by law as the period of its existence, has expired. For “the first requisite,” says Constantineau in his excellent work on the De Facto Doctrine, “to constitute a de facto corporation is the existence of a law authorizing the incorporation. When, therefore there is no law providing for the .organization of municipal corporations, there cannot be any such corporation either de facto or de jure.” [Constantineau on the De Facto Doctrine, sec. 50.] Elsewhere this author says that “the law recognizes no distinction between public and private corporations in the application of the de facto doctrine.” [Ibid., sec. 47.] Moreover, it is obvious that the view that by user and usurpation a corporation of whatever sort can be kept alive indefinitely, would have the effect to render nugatory and to practically emasculate all statutes providing for the. organization of private corporations. For such a view applied to the concrete facts here would be tantamount to saying: Observe the law, become a de jwre corporation and die of old age in twenty years; refuse to follow the law, become a de facto corporation and live forever.

We conclude then that since the judgment for taxes was rendered against the Meramec Iron Company, which was organized as a corporation de facto under chapter 62 of the Revised Statutes of 1865, after said company had become dissolved by statutory efflux of time, such judgment was void and the subject of collateral attack,, and a sale for taxes of the land in controversy bottomed on said judgment did not pass title to the purchaser thereof. This view disposes of the case and renders unnecessary a consideration of the other interesting points mooted.

It follows that the judgment nisi was wrong, and that this case should be reversed and remanded with directions to enter judgment for plaintiff decreeing it to be the owner of said land and adjudging that defendant has no title or estate therein. Let this be done.

All concur, Revelle, J., in result.


source: Caselaw Access Project

author: REVELLE, J.

license: Public Domain

text:
    THE STATE v. W. J. BURGESS, Appellant.
    Division Two,
    July 5, 1916.
    1. INFORMATION: Embezzlement: Making Way With: Specific Intent. Under the second subdivision of Sec. 4552, R. S. 1909, it is necessary to allege that the prohibited act, namely, the making away with and secreting money placed in defendant’s hands as bailee, was done with the specific' intent to embezzle and convert to his own use; but to charge such intent, it is not necessary to use the words “felonious” or “fraudulent,” but apt. words of equivalent meaning will suffice.
    2. -: -: ——: With Intent to Embezzle. An information charging that defendant, being a bailee of $450 to be deposited to the credit of prosecutrix, “the said money, did then and there feloniously and fraudulently make away with 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. [Eistinguishing 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: Convictiop of Crime not Charged. Where, the d "endant 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. -: 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.
    5. -: 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 dischargo 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. 8. C. Walker, Judge.
    Reversed and remanded.

      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 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, 262 111. 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 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 “a 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. Háyden, 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 obtained. 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 mak- . ,, , -, mg 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.

It will be observed that the act of making way with and secreting is charged to have been fraudulently and feloniously done, but no where is it alleged that in so doing the defendant acted with a fraudulent or felonious intent to embezzle and convert, or with the intent to fraudulently and feloniously embezzle and convert. The information is bottomed on the second subdivision of section 4552, Revised Statutes 1909, which section is as follows:

“If any carrier, bailee or other person shall embezzle or convert to his own use, or make way with or secrete, with intent to embezzle or to convert to his own use, any money, goods, rights in action, property or valuable security or other effects which shall have been delivered to him, or shall have come into his possession or under his care as such bailee, although he shall not break any trunk, package, box or other thing in which he received them, he “shall, on conviction, be adjudged guilty of larceny and punished in the manner prescribed by law for stealing property of the nature or value of the articles so embezzled, taken or secreted.”

As heretofore held by this court (State v. Lentz, 184 Mo. 223; State v. Larew, 191 Mo. 192) this statute creates two distinct classes of offenses: (1) The offense of actual embezzlement or conversion; and (2), the offense of making away with and secreting property with the intent to embezzle or convert. Under the first subdivision it is unnecessary, in order to charge an offense, to allege more than the actual embezzlement and conversion of the property, no specific intent being coupled with the forbidden act. Under the second subdivision it is necessary, however, to allege that the prohibited act, that is, the making way with and secreting, was done with the specific intent expressed in the statute. [Cases supra.] There can be no doubt that, in order to sufficiently charge an offense under the second subdivision, the batent to embezzle and convert must be alleged, and, to charge sneh an intent, it is, necessary .to use such words as will show a felonious or other fraudulent intent to deprive.the owner of his property and to appropriate the same to the use of the defendant. For this purpose, however, it is immaterial whether the words “felonious” or “fraudulent” are used, provided apt synonyms' and words of equivalent meaning are employed. " [State v. Rader, 262 Mo. l. c. 134, and cases cited.]

The question then becomes, whether the phrase “with intent to embezzle and convert” sufficiently charge such a criminal intent. As heretofore pointed out in State v. Pate, post, p. 431, the term “convert,” when used alone, does not necessarily imply such a criminal intent, and, its use without other qualifying-words is ^insufficient to charge the fraudulent intent essential to the charge of embezzlement or fraudulent conversion. In 'that case it was pointed out that the term “convert” is not synonymous with “embezzle,” and that in order to make it so such qualifying terms as “felonious” or “fraudulent,” or others of similar import, must be used.

With the term “embezzle,” however, we are of a different opinion. Section 8057, Revised Statutes 1909, directs us 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 meaning according to their technical import. The term “embezzle” is a technical word, having a legal signification, and is defined as follows: “The fraudulent appropriation to his own »use or benefit of property or money entrusted to him by another.” [Black’s Law Diet., p. 418, and cases cited.] “Embezzlement is a fraudulent appropriation of another’s property by a person to whom it has been entrusted or into whose hands it has lawfully come. It differs from larceny in that the original taking of the property was lawful or with the consent of the owner, while in larceny the felonious intent must have existed at the time of the taking.” [15 Cyc. 488, and cases cited.] “Embezzlement is -an intentional 'and fraudulent appropriation of the goods of another by a person intrusted with the property of the same.” [2 Wharton’s.Crim. Law (11 Ed.), p. 1467, and cases cited.] See also numerous cases cited in Vol. 3, pp. 2350 to 2358; and Yol. 2 (2nd Series), pp. 244 to 253, Words and Phrases, wherein the term is uniformly defined as importing an appropriation or conversion with a fraudulent and criminal intent. The subject is not a new.one to this court, because in the case of Hanna v. Ins. Co., 241 Mo. l. c. 401, this court said: “ ‘Embezzlement is the fraudulent and felonious appropriation of another’s property by a person to whom it has been entrusted or into whose hands it. has lawfully come.’ [State v. Casey, 207 Mo. l. c. 11.]”

At common law the crime of embezzlement did not exist, it being regarded merely as a breach of trust or duty. The same is wholly statutory, and a sort of a statutory larceny committed by persons who have lawfully secured possession of the property, and who afterwards criminally appropriate the same to their own use.

The act not being a crime at common law, and having no criminal signification thereunder, we are not hampered in- giving it its proper technical meaning as we are with terms and offenses, of common law meaning, as, for instance, the case of larceny, with which this court was dealing in State v. Rader, 262 Mo. 117. This distinction has heretofore been pointed out by this court in State v. Baker, 264 Mo. 339, wherein the court said (l. c. 354):

“While instruction one mentioned above does not contain the words ‘feloniously,’ nor does it by any circumlocution define this term, yet neither does the statute which makes' the stealing of domestic fowls a felony, use the word ‘feloniously.’ This case therefore is clearly distinguishable from the case of State v. Rader, 262 Mo. 117, wherein out of deference to the definition of the ordinary crime of grand larceny as the Legislature had ordained it, the writer said that an instruction under the provisions of section 4535 ought either to contain the word ‘feloniously’ or define it with reference to the intent of the taking.”

To the instant subject we can appropriately apply the words of Walker, J., in his separate opinion in State v. Rader, supra: “The use of the omitted words of which complaint is made, is not only redundant, but tautological.” They would add nothing whatever to the clearness or force of the charge, but, to the contrary would seem, when analyzed, rather to confuse. It would be the equivalent of charging that the defendant converted with a feloniously felonious, or fraudulently fraudulént, intent. We are not disposed to give countenance to such a doctrine, and, in our opinion, the allegation that he did the prohibited act with the intent to embezzle was a sufficient charge of a felonious or otherwise fraudulent intent.

We are not unmindful that this court in State v. Schilb, 159 Mo. 130, reversed a judgment because the court failed in its instruction to specifically require the jury to find that the conversion was accompanied by a felonious or fraudulent intent, and notwithstanding that the instruction used the words “embezzle” and “convert.” In that case, however, the phrase which is decisive with us was not considered or discussed, the court merely holding, upon the strength of the case of State v. Cunningham, 154 Mo. 161, that such an intent must be found by the jury before a conviction could be had.

In the case of State v. Cunningham, supra, the instruction did not use the term “embezzle,” but merely’the word “convert,” and in onr opinion it was correctly decided.

In State v. Obuchon, 159 Mo. 256, the court likewise criticised an instruction which omitted specific reference to a felonious or fraudulent intent. Our views are that in this case the instruction used terms which clearly required a finding of fraudulent intent, and that the same did not merit the criticism directed against it. To the extent that these two cases are in conflict with our present holding they should be and are overruled.

II. The judgment in this case, however, must be reversed and the cause remanded for other reasons. The record presents a most peculiar and remarkable condition. Defendant was charged with the doing of certain acts with intent to embezzle, and was tried for actual embezzlement, and by the jury found guilty of larceny, there being no submission of the offense charged, and no finding thereon by the jury.

For reasons which we cannot understand, thé court did not instruct upon the offense charged, but instructed on another, towit, actual conversion and embezzlement, and told the jury that if they found that the defendant had actually embezzled and converted the property they should find him guilty of larceny. The offense charged in the information, and the one submitted to the jury, are entirely separate and distinct, as heretofore pointed out. The information does not charge that he embezzled and converted the property, but merely that he did other things with the intent to so embezzle and convert. The Bill of Rights entitles a person to be informed of the nature and cause of the accusation against him, and he cannot be brought into court to answer one charge, and be convicted upon an entirely different one. By this section tbe Legislature has declared that the act of embezzling and converting is one thing, and the act of making away with and secreting with intent to embezzle and convert is another thing. The information did not warrant the submission of the offense defined by the instruction. [State v. Crosswhite, 130 Mo. l. c. 363; State v. Lentz, 184 Mo. 223; State v. Casey, 207 Mo. 1; State v. Miller, 255 Mo. 223.]

III. In pursuance of the instruction so given the jury returned a verdict finding the defendant “guilty of larceny as charged in the information.” The statute upon which the information is predicated provides, in this connection, that “he shall, on conviction, be adjudged guilty of larceny, and punished in the manner prescribed by law for stealing property of the nature or value of the articles so embezzled, taken or secreted.” It is our opinion that by this provision the Legislature did not intend to wipe out the distinction between larceny and the acts prohibited by this section.

We find that by section 4901, Revised Statutes 1909, it is expressly provided that if upon the trial of a person indicted for embezzlement, it is proved that he is guilty of larceny, he shall be found not guilty of embezzlement but guilty of larceny, and be punished as if he had been convicted upon an indictment for larceny; and if upon the trial of a person indicted for larceny it is proved that he is guilty of embezzlement, he shall be found not guilty of larceny but guilty of embezzlement; and punished as if convicted upon an indictment for embezzlement.

While it is true that section 4552, Revised Statutes 1909, provides that he shall be adjudged guilty of larceny, it further provides that he can be so adjudged only upon conviction. It does not prescribe that the jury shall find him guilty of larceny, but that after they have found him guilty of the act prohibited, he shall be adjudged guilty of larceny and punished accordingly.

In the case of State v. Broderick, 7 Mo. App. 19, the defendant was indicted for grand larceny, and on trial he was found not guilty of that offense, but guilty of embezzlement. It was there insisted that because the statute provided that in case of conviction of embezzlement the defendant should be adjudged guilty of larceny and the jury had expressly found him not guilty of larceny, the verdict could not stand. The court however disposed of that contention in .the following manner (l. c. 21):

“It is further contended that the instruction was wrong in telling the jury they might convict the defendant of embezzlement. The statute does not say that upon such facts the jury shall find the defendant guilty of larceny, as is now claimed. On the contrary, the defendant is, on conviction, to be adjudged guilty of larceny, and to be punished in the same manner as if he had stolen the articles which he has not stolen, but has embezzled. The instruction was correct and the verdict properly followed the evidence and the facts, as the statute clearly means it should and as a verdict ought. The judgment or sentence following is prescribed by the statute. Here the jury, in effect, acquitted the appellant of grand larceny and found him guilty of the other charge, embezzlement.”

We are of the opinion that in cases under this section the jury should not find the defendant guilty of larceny, but should find him guilty, when the facts warrant, of the offense created by the statute, and then, upon such verdict of guilty, the court should adjudge him guilty of larceny.

IV. It is also urged that defendant should be discharged because the facts which were testified to on behalf of the State in this case were likewise offered in evidence in the trial of another charge against defendant.

"We have carefully examined both the record and the plea,- and, without lengthening the opinion with a statement of the disclosures, it is our opinion that the defendant has not been in former jeopardy on this charge, and that upon the showing made he was not entitled to his discharge on that ground. The plea is also insufficient in both form and substance. [State v. Collins, 180 S. W. 866; Washington v. State, 32 S. W. 694; Crocker v. State, 47 Ga. 568; Kelley’s Crim. Law & Prac. (3 Ed.), sec. 235; Bishop’s Directions and Forms (2 Ed.), sec. 1043.] The State’s evidence, if believed, is amply sufficient to support a verdict of guilty, but because of errors heretofore mentioned the judgment is reversed and the cause remanded.

Walker, concurs; Faris, P. J., not sitting.


author: WALKER, J.

text:
    MARY E. LESLIE, Appellant, v. S. E. CARTER.
    Division Two,
    July 5, 1916.
    1. COSTS OF LITIGATION: Attorney' Fees: Independent Action. The successful plaintiff in a suit to set aside a deed for fraud and for an accounting, cannot maintain á subsequent independent action to recover the cost of litigation, including attorney’s fees, incurred in the necessary prosecution of that suit.
    2. -: - — ■: In Principal Suit: Res Adjudicata. If costs of litigation, including attorney’s fees, are recoverable by the successful litigant, a claim therefor should he made in the principal suit; otherwise, they are barred by the rule of res i ad judicata, for if recoverable for a- breach of duty or contract in issue in that case, it would be to split causes of action and multiply litigation to allow them to be recovered by a subsequent independent suit.
    S'. RE3 ADJUDICATA: Rule. All issues which might have been raised and determined in a given case, but were not, are as completely foreclosed as if they had been adjudicated and included in the verdict and judgment therein.
    Appeal from Jasper Circuit Court. — Hon. J. J). Perkins, Judge:
    Affirmed.

      Thomas Hackney and A. L. Thomas for appellant.
    The defendant being at the time the trusted agent of the plaintiff and having betrayed his trust as such agent, and wrongfully placed a cloud upon her title to' said real estate, she was entitled to recover and is now entitled to recover the reasonable and proper expenses incurred by her in the employment of attorneys in the trial court and in the Supreme Court, to which Byrd and Carter appealed. State ex rel. v. Tittman, 134 Mo. 162; MeGaw v. Acker, Merrall & Condit Co., 73 Atl. 731; Bank v. Williams, 62 Kan. 431; Chesebro v. Powers, 78 Mich. 472; Flack v. Neill, 22 Tex. 253; People’s B. &. S. Assn. v. Pickerel, 55 S. W. 194; Hadley v. Baxendale, 9 Exch. 341; Furstenberg v. Fawcett, 61 Md. 191; 1 Sutherland on .Damages (2 Éd.), 58; 8 Am. & Eng. Ency. Law (2 Ed.), 674; Arcambel v. Wiseman, 3 Dali. (U. S.) 306; Smith v. Corege, 53 Ark. 295; Eyerson v. Chapman, 66 Me. 557; Pond v. Harris, 113 Mass. 114; Fowler v. Owens, 39 Atl. 329. The defendant being the agent of the plaintiff in charge of her lands became responsible for all probable damages resulting to her from a breach of his trust as agent, and having involved her in litigation to recover from Byrd the title to her land, she is entitled to recover the necessary and reasonable expenses incurred by her in restoring to her the property fraudulently obtained by defendant and conveyed by him to Byrd. The fraudulent procuring of the title and the fraudulent conveyance to Byrd was a departure from his line of duty as her agent, and a suit brought to set aside the deed to Byrd to restore the property was'the natural and proximate consequence of defendant’s violation of his trust; and if it'was, are not the reasonable expenses incident to its successful prosecution proper items of recoverable damages?

      Gray & Gray for respondent.
    (1) The general rule is that counsel fees and expenses of litigation, in the class of cases made by appellant’s petition, cannot be recovered. 1 Sedgwick on Damages (8 Ed.), secs. 229-235; Brown v. Cape Girardeau, 90 Mo. 377; Albers v. Merchants’ Exchange, 138 Mo. 140; Pickle v. Pickle, 243 Mo. 665; Johnson v. United Bys.. Co., 247 Mo. 348; Hodkinson v. McNeal Mch. Co., 161 Mo. App. 87; Evans v. Ins. Co., 87 Kan. 641, 41 L. B. A. (N. S.) 1130; Thouron v. Skirvin, 122 S. W. 55; Jackson v. Poteet, 89 S. W. 980; Bull v. Keenan, 69 N. W. 433; Aldrich v. Maher, 153 111. App. 413; Knefel v. Ahen, 57 111. App. 568; Winkler v. Boeder, 8 Am. St. 155; Beggio v. Braggiotti, 7 Cush. 166; Munson v. Straits, 99 Fed. 787; Clausner v. Chapin, 168 S. W. 375; Day v. Woodworth, 54 U. S. 363; Warner v. Cole, 15 Mich. 264. It' will be noticed that appellant cites only one Missouri case, to-wit: State ex rel. v. Tittman, 134 Mo. 162. That case however is rendered valueless as an authority by the subsequent case of Albers v. Merchants’ Exchange, supra. Even if such damages were recoverable, they should have been asked for and recovered in the first suit. Summett v. Bealty & Brok. Co., 208 Mo. 511; St. Louis v. United Bys.^ 263 Mo. 387; Peacock v. Coltraine, 116 S. W. 389; Abbott ,v. Land & Water Co., 118 Pac. 425; Van Horn v. Treadwell, 130 Pac. 5; Bracken v. Trust Co., 167 N. V. 510; Township v. Wiggins, 120 N. W. 1032; Mun-son v. Straits, 99 Fed. 787, 100 Fed. 1005; Lowell v. House of Good Shepherd,. 44 Pac. 253; Suisun Lbr. Co. v. School District, 127 Pac. 349; Marvin v. Prentiss, 94 N. V. 295; Cook v. Printing Co., 227 Mo. 524; Panoulias v. Equipment Co., 198 Fed. 493.,
   WALKER, J.

— This is an action to recover the expenses of litigation, including attorneys’ fees, alleged to have been incurred by the plaintiff in a former proceeding against the defendant to set aside a deed for fraud, and for an accounting. • In the latter action, brought, as was the one at bar, in the circuit court of Jasper County, plaintiff had judgment, and upon an appeal to this court the same was affirmed except as to a correction in the allowance of interest. [240 Mo. 552.]

Defendant demurred to the petition filed in the suit at bar and from the judgment sustaining this de'inurrer plaintiff appeals. The amount sued for fixes the jurisdiction of this court.

The grounds on which the sufficiency of the petition was challenged were: (1) that the damages sued for, to-wit, the expenses in preparing for trial and attorneys’ fees, were not recoverable in an action of this nature; and (2) if recoverable they should have been included in the original suit.

I. The weight of authority here and elsewhere is against the right of recovery in actions of this character. Here taxable costs are fixed by statute and do not embrace expenses of litigation, including attorneys’ fees. The exceptions to this rule created by statute or established by the usage of the courts and familiar to every lawyer, are fully stated by Lamm, J., in Johnson v. United Railways, 247 Mo. l. c. 348, and need not be set ont here or further adverted to except to say that expenses of the character here sued for are not included therein. Color for the claim here made is sought in the ruling of this court in State ex rel. v. Tittmann, 134 Mo. l. c. 170, an action to recover damages for the breach of a curator’s bond in which it was held, more by implication than a direct ruling, that “counsel fees and other expenses of prior litigation were recoverable as damages.” Subsequently this court, in Albers v. Merchants’ Exchange, 138 Mo. 140, thus distinguished the Tittman case:

“The obligation to pay the attorneys’ fee in the case did not arise out of the fact that, the ward was successful in his suit against his curator, but the liability was determined by the terms of the curator’s bond, which, it was properly held, stood good as an indemnity against all the natural and proximate consequences of a breach of the duty which the curator owed the ward.”

In the Albers case the plaintiff was attempting to recover attorney’s fees alleged to have been paid by him in resisting the effort of the Merchants ’ Exchange to remove him therefrom as a member. The conclusion of the court in that case was that costs of the character there sued for could not be classified as damages and were therefore not recoverable. The court in so ruling declares that “the law of this State, in .denying a party the fight to recover from his adversary the expenses of litigation other than statutory taxable costs is in harmony with the law of our sister states.”

In the discussion of this case Judge Gantt, speaking for the court, says arguendo:

‘ ‘ Did the circuit court err in holding that plaintiff was not entitled to recover back this fee because there was no evidence that the directors were actuated by malice in suspending plaintiff from membership, and that, in the absence of malice, the attorney’s fee could not form an element of his damages?”

This language, as was said in Winstead v. Hulme, 32 Kan. 568, might seem to imply that if it had been shown that malice or oppression had mingled in the controversy, then such costs as • are under consideration might be recovered. It is evident, however, from the entire opinion that what the court meant was that if the evidence disclosed that the original action was prompted by malice or oppression punitive damages might be recovered and that the amount shown to have been expended by the prevailing party in the litigation could be taken into consideration in fixing the whole amount of the judgment. The court’s language sustains our conclusion. We have reference to its declaration “that in the absence of malice attorney’s fees will not form an element of plaintiff’s damages.” Why an element if it constitutes the basis of the plaintiff’s right of action? But it does not, and being only an element thereof it may- simply be taken into account in the presence of malice, in determining the total amount of plaintiff’s damages in the event of his recovery. Construed otherwise the conclusion reached in the Albers case would not be consonant, as the court declares it- to be, with the strong current of authority elsewhere.-

The rule announced in the Albers case has been affirmed in principle in Pickel v. Pickel, 243 Mo. l. c. 665, the court holding that a fee would not be allowed to plaintiff’s attorney as a part of the decree in a suit to set aside a fraudulent transfer of corporate stock. And in Johnson v. United Railways, 247 Mo. l. c. 348, involving the liability of a corporation for rights of action existing against another corporation which had transferred its franchise and assets to the former, the court held that a claim for attorneys’ fees for prosecuting to final judgments this class of claims against the transferee company would not be allowed, the application therefor being held to be without any authority.

Courts of last resort in many other jurisdictions are not less emphatic in declaring the existence of the rule. In fact many of them not only hold that expenses of litigation, including attorneys’ fees, will not be recognized as forming the bases of independent actions, but that they will not be allowed in the principal suit as an element of damages even where punitive or exemplary damages are allowable. Nor is it material as to the character of the action, whether it be ex contractu or ex delicto; the application of the rule is the same and nothing except costs ordinarily taxable can be allowed or recovered. [Day v. Wood-worth, 54 U. S. 363; Railroad v. Citizens Traction and Power Co., 16 N. M. 163; Earl v. Tupper, 45 Vt. 275; Fairbanks v. Witter, 18 Wis. 287; Winkler v. Roeder, 23 Neb. 706, 8 Am. St. Rep. 155; Bull v. Keenan, 100 Iowa, 144; Landa v. Obert, 45 Tex. 539; Evans v. Ins. Co., 87 Kan. 641, 41 L. R. A. (N. S.) 1130.]

II. Moreover, if the damages here sued for were recoverable, a claim therefor should have been included in the principal suit. The splitting of causes of actions tends to unnecessarily burden the courts and increases the cost of litigation. If, therefore, plaintiff’s right of action be conceded, there was nothing in the nature of her claim not reasonably ascertainable at the time of the trial of the principal suit and under proper pleadings the entire matter could have been determined. As we said in St. Louis v. United Railways, 263 Mo. 387, l. c. 423, “ ‘the doctrine as now recognized directly forbids the retrial of an issue, and necessarily involves the bar of a suit brought on a cause of action which should have formed the basis of a prior suit and been tried therein. And this bar is held to apply even where the subsequent suit is for a claim or relief arising out of the same cause of action, and not asked in the former suit.’ ”

Plaintiff’s claim as asserted here, if recoverable, belonged to and arose out of her original cause of action, and by a reasonable exercise of her rights it could have been made a part of same. This not having been done the rule of. res ad judicata will apply with as much force as if the matters now sought to be adjudicated had been put in issue. [Summet v. Realty & Brokerage Co., 208 Mo. l. c. 511; Cook v. Globe Ptg. Co., 227 Mo. l. c. 524.]

In Van Horne v. Treadwell, 164 Cal. 620, the plaintiff had instituted a former suit to recover pledged stock claimed to have been fraudulently appropriated by the defendant, and obtained a decree. He afterwards instituted a separate suit for expenses and attorneys ’ fees incurred in the former proceeding. The Supreme Court of California denied him the right to maintain the second suit on the ground that it was res adjudicata, holding that the plaintiff could not split his demand for relief so as to entitle him to recover a part of same in one action and the remainder in another; that the demand for the repayment of the expenses of the suit, including attorneys’ fees, if a proper element of damages at all, was such as flowed from the single wrongful act of withholding the delivery of the stock.

In Abbott v. The 76 L. & W. Co., 161 Cal. 42, it was sought to recover damages plaintiff claimed to have sustained by reason of a former suit. The court denied the plaintiff the right to maintain the second suit saying, in- effect, that under elementary principles he was bound to obtain all his relief in one action and could not recover part in one and part in another. Resorting as he did to an action in equity, the court had power to give him all the relief he was entitled to, and his subsequent action on the same contract was therefore barred. This is the necessary result of the application of the well settled principle that an entire claim arising either upon contract or in tort cannot be divided up and made the subject of several suits. In such a ease it is not ground for a second action that the party may not be able to actually prove in the first case all the items of the demand or that all of the damages may not then have been actually suffered. He is bound to prove in the first action, not only such damage as has been actually suffered, but also such prospective damages by reason of the breach as he may be legally entitled to; for the judgment he recovers will be a conclusive adjudication as to the total damages on account of the breach. A like doctrine is announced in Bracken v. Trust Co., 167 N. Y. 510; Head v. Meloney, 111 Pa. St. 99; Marvin v. Prentice, 94 N. Y. 295; and Lovell v. House of the Good Shepherd, 14 Wash. 211.

Except to show that the doctrine of res adjudicata is everywhere uniformly applied, the citation of authorities from other jurisdictions would have been unnecessary, because its application here has been settled beyond question, if not before, certainly in the cases of Spratt v. Early, 199 Mo. 491; Summet v. R. & B. Co. and St. Louis v. United Railways Co., supra; in each of which it is emphatically held that all of the issues which might have been raised and determined in a given ease, but were not, are as completely barred as if they had been adjudicated and included in the verdict.

Plaintiff’s petition showed on its face that she was not entitled to recover. The demurrer was therefore properly sustained, which results in an affirmance of the judgment. It is so ordered.

All concur.


author: ROY, C. PEE CURIAM.

text:
    SAM B. STROTHER, Administrator of Estate of HOMER MARTIN, Plaintiff in Error, v. MISSOURI, KANSAS & TEXAS RAILROAD COMPANY.
    Division Two,
    July 5, 1916.
    WRIT OF ERROR: From Order Sustaining New Trial. The propriety of the trial court’s aetioi- in sustaining a motion for a new trial crnnot be listed under a writ of error, and any error committed by the trial court in sustaining the motion cannot be reviewed by writ of error. Section 2054, R. S. 1909, provides for a writ of error only on flnai judgment, and section 2038 applies only in case of appeals.
    Error to Jackson Circnit Court. — Hon. William O. Thomas, Judge.
    Writ quashed.

      J. W. Jamison and Hadley, Cooper, Neel & Wright for defendant in error.
    A writ of error will not lie from an error sustaining a motion for new trial, as is sought in this case, hence the writ should be quashed. R. S. 1909, sec. 2054; Emerson v. Harriett, 11 Mo. 413; Padgett v. Smith, 205 Mo. 122; Kroeger, v. Dash, 82 Mo. App. 333.

      Yates & Mastin and George B. Strother for plaintiff in error.
    1 Black, Judgments, sec. 21, says: “Where a controversy between two parties is ended so far as the court before which it is pending can end it, the judgment is then final, regardless of the mere matter of form.” The lower court incorrectly and informally sustained a motion for a new trial (probably) instead of arrest of judgment non-obstante veredicto;
      yet the effect of doing so was just as effective as if the latter had been done because it was on the ground that the peremptory instruction should have been sustained, which if done would have completely ended plaintiff’s case in the lower court so that under the above quotation from Black, the finality is there although the form is not. Black further in sections 41, 43, says: .“A final judgment or decree is one which determines the substantive merits of the controversy— all the equities in the case. . . . But it is none the less final, if after settling the equities, it leaves the necessity for some further action or direction of the court in the execution of the decree as it stands.” The decisions in Missouri largely lean the other way, although Bank v. Riley, 8 Mo. App. 544, and St. Louis & San Francisco Ry. Company v. Evans, 85 Mo. 323, hold substantially to the Black doctrine, which seems to be the general doctrine throughout the United States. In the St. Louis & San Francisco case, supra, there was an order to turn over some fifty odd thousand dollars; while ordinarily an order to turn money over is not a final judgment, the court there held, after the exhaustive review of cases, that this in substance was a finality, although there were orders necessary to be made later on in the case. In addition to these authorities' counsel on behalf of the defendant have appeared to the merits, and as far as it goes have given the court jurisdiction by waiving the technical points and virtually inviting and asking the court to pass on the merits.
   ROY, C.

— Homer S. Martin recovered judgment against the defendant in error for $14,000 as damages for personal injuries. A motion for a new trial on the part of the defendant was sustained. From -the order sustaining that motion the plaintiff came to this court on a writ of error. Since the writ issued the plaintiff died and the cause has been revived in the name of his administrator.

Defendant in error makes the point that the propriety of the trial court’s action in sustaining a motion for a new trial cannot he tested under a writ of error. We think the point well taken. Section 2054, Eevised Statutes 1909, provides for a writ of error only on a final judgment. Section 2038 gives the right to appeal from an order granting a new trial from an interlocutory judgment in an action of partition and in other cases there mentioned. Those sections were construed in Kroeger v. Dash, 82 Mo. App. 332, in a short hut sound opinion, holding that a writ of error cannot be brought on an order granting a new trial for the reason that such order is not a final judgment. That opinion was cited with approval by this court in Padgett v. Smith, 205 Mo. 122.

The writ of error issued herein is quashed.

Williams, C., concurs.

PEE CURIAM.

— The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All the judges concur.


text:
    THE STATE v. E. T. PATE, Appellant.
    Division Two,
    July 5, 1916.
    1. EMBEZZLEMENT:- Instruction: Unlawful Conve*sion: Criminal Intent. It is not necessary, in a prosecution for embezzlement, that the instruction purporting to cover the offense specifically mention the element of intent, provided its terms are otherwise sufficient to include in a general way all the elements essential to a commission of the act forbidden; but an instruction which merely requires the jury to find that defendant “did unlawfully convert” to his own use certain money is not sufficient to authorize a verdict of guilty, since the term “convert” does not imply criminal intent, and the term “unlawfully” does not add to its meaning.
    2. -: Convers’on: Defined. Every unauthorized taking of personal property, and all intermeddling with it, beyond the extent of the 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; and (except equitable conversion) most acts of conversion are unlawful. So that there may be an unlawful conversion which does not amount to embezzlement, because no criminal intent is present.
    3. -: -: Designed to Cover Whole Cas;: Error Cured by Defendant’s. An instruction for the State in a prosecution for embezzlement designed to cover the whole case which is erroneous because it omits the element of criminal intent, is not cured by one given for defendant.
    4. -: From Bank: Crediting Deposits to Self. When money is deposited in a bank and is mingled with its general funds it becomes the property of the bank, and thereby the relation of debtor and creditor arises between the bank and the depositor; and when the cashier without authority increases the overdrafts of a depositor or appropriates money which has been deposited by others by crediting it, not to them, but to himself, his acts constitute embezzlement of money belonging to the bank, and not that of private individuals.
    5. -: -: Evidence: Switching Credits. Evidence that the cashier of a bank “switched” and transferred money from the account of an individual deposite - to his own account is competent as evidence of embezzlement from the bank, since it tends to disclose the methods and means by which he endeavored to cover and conceal his acts of conversion, and likewise competent as tending to show the fraudulent and felonious intent necessary to a commission of embezzlement from the bank.
    6. -: -: Overdrafts: Instruction: Comment on Evidence. An instruction offered by defendant, a cashier, declaring that the charge of embezzlement of the bank’s money could not be sustained by proof that individual accounts had been falsified by false entries showing overdrafts against individual depositors, should be refused, because they single out certain isolated facts and give them undue prominence. ■ Besides, such facts are material and competent' as tending to establish criminal intent.

      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. V.' 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 askéd by the defendant, because it correctly states the 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, whát 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.
   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 hank 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 hank, 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 hooks 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 hooks to the account of the defendant. In some instances no record was made of the deposit, hut the money was directly appropriated by the defendant to his own use. In numerous cases the hooks disclosed that certain patrons and depositors of the hank were overdrawn in their accounts, when in truth and fact the bank was indebted to them, and, instead of the hooks disclosing a shortage in their account, they should have shown a 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 hut 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 hooks 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 hank 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 he referred to in the opinion.

I. The assignment first invoking onr 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 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.

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 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 casé 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. l. c. 174, 142 App. Div. 500; Ferrera v. Parke, 23 Pac. l. 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 ■ %ot 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 vet 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 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. l. 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 McLemoré 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 crimp 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 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. l. 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 his control what one must intend to do with property-taken to commit larceny of it, he embezzles if, 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. l. 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. l. 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, 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 from the account of an individual depositor to his own account was competent, as disclosing the means and method to which he resorted in endeavoring to conceal and cover his acts of conversion. They were likewise competent as showing the fraudulent and felonious intent necessary to a commission of the alleged crime.

The instructions offered by defendant, and refused by the court, declaring that the charge of embezzlement could not be sustained by proof that individual accounts had been falsified by entries showing overdrafts, were properly refused, because they single out certain isolated facts and give them undue prominence. These facts, as heretofore pointed out, were material and competent as tending to establish certain elements of the offense, and the instruction requested would have been calculated to confuse rather than to aid. This is particularly true in the instant ease, because of what seems to have been defendant’s theory that he did not embezzle from the bank, but, if at all, from the accounts of the depositors, and that the evidence on the whole tended to show only a falsification of the records, when, as above stated, it tended to show the offense charged.

Objections are also made to certain testimony given by the bank examiner, it being said that he was permitted to state as facts his own inferences and conclusions as to what defendant meant when he made certain statements in his presence. Upon a retrial of this cause the State should he permitted to detail in evidence the statements made by defendant in the nature of material admissions and confessions, but the witnesses should state only what he said, and not be permitted to testify to their own opinions, inferences and conclusions.

Because of the error in instruction No. 2 the judgment is reversed and the cause remanded.

All concur.