text:
    THE STATE v. JOHN M. SPEYER, Appellant.
    Division Two,
    December 10, 1907.
    1. EVIDENCE: Other Crimes. Testimony of a witness as to what occurred between her and defendant prior to the time he killed his little son, indicating or insinuating that defendant had committed some unlawful act upon her, should be excluded; and if it is incompetent for her to testify as to such things, it is also incompetent for a police officer who arrested defendant or any other witness to testify to them.
    2. .: -: Waiver. But where defendant has made a voluntary written statement in which he refers to that wrongful act, and that statement is read by the State without objection, the judgment should not be reversed for the wrongful lugging in of the policeman’s testimony concerning the wrongful act of defendant towards the woman prior to the homicide of his little boy.
    3. -: Expert's Opinion: Insanity: Objection as to Form, Etc. The physician on cross-examination was asked this question: “If that man killed the boy because he feared that he was to be put in jail on a serious charge, and the boy would be neglected. and abused, and be killed him for that reason, would you regard that as an evidence that he did not know that it was wrong to kill him?” Reid, that it was not error to overrule objections to the question that it was not in proper form and that it was “not an examination of anything drawn out in chief.”
    4. ->: -: No Objection at Trial. An objection to certain questions propounded to the expert cannot be made for the first time in the motion for a new trial or in the appellate court.
    5. -: Letters to His Wife: Evidence of Abandonment. Where there was no evidence that could be called such that defendant had abandoned his wife, it was not error to exclude letters from him to her which intended to show that he had not abandoned her.
    6. -: Rebuttal: Insanity: . Former Testimony. Where the defense is insanity it is proper to permit the State, in rebuttal, to introduce in evidence the testimony of defendant on his former trials for the same offense.
    7. -: -: -: ->: No Objection. Where no objection was made at the time as to the mode of proving defendant’s testimony on the former trial, an objection made for the first time in the motion for new trial or on appeal that it was not shown that the testimony offered as that of defendant on the former trial was in fact his testimony, cannot be considered.
    8. -: Preserved by Bill of Exceptions. Section 3149, Revised Statutes 1899, providing that when evidence has been preserved by bill of exceptions in any case the same may thereafter be used in the same manner as if such testimony had been preserved in a deposition, has no application to a defendant in a criminal case, for the deposition of a defendant in a felony case is never taken.
    9. MURDER IN FIRST DEGREE: Deliberation. Both deliberation and premeditation are necessary constituents of murder in the first degree, and if either is absent no instruction for murder in that degree can be given. Deliberation is only prolonged premeditation. It means not only to think of beforehand (which may be but for an instant), but the inclination to do the act must be considered, weighed, pondered upon for such a length of time after the provocation is given as the jury may find was sufficient for the blood to cool. One “in a heat of passion” may premeditate without deliberating; while deliberation is only exercised in a cool state of the blood. Therefore, where the evidence shows that when defendant entered the tent and found his little boy asleep he had no thought of killing him, but that, all at once, realizing that he was a stranger in the city, and was about to be led away to jail charged with a heinous crime, and realizing his wife was far away and that the little fellow left alone would likely be mistreated, the thought struck him to kill the child and he jerked out his knife and did so, there was no deliberation, and an instruction for murder in the first degree should not have been given.
    10. -: ——: Instruction. An instruction for murder in the first degree which omits the elements of premeditation and deliberation, as an instruction given in this case does, is erroneous.
    11. -: Insanity: Admission of Charge. In no event does the defense of insanity admit the grade of the offense charged in the indictment or information. It admits nothing more than that defendant committed the act with which he is charged, but it does not admit that it was a crime.
    12. INTENTIONAL HOMICIDE. The intentional killing by defendant of his little boy, as the facts of this case show it to be, was either murder in the second degree, or manslaughter in the fourth degree under the statute which declares that an intentional killing without malice aforethought is manslaughter in that degree — or it was no crime at all, because of defendant’s insanity.
    13. -: Insanity. The evidence in this case is again held to establish that the act of defendant, in killing his little boy, under the circumstances, was that of an insane man, and surprise is expressed that he was convicted of any crime, and for that reason the verdict is not permitted to stand, but the case is remanded for a new trial.
    Appeal from Jackson Criminal Court.— Hon. Jolm A. Rich, Special Judge.
    Reversed and remanded.

      W. F. Riggs for appellant.

      Herbert S. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State.
    (1) The court did not err in admitting in evidence on rebuttal the testimony of defendant given on the two former trials. Kelley’s Crim. Law and Pkac., sec. 285; Underhill on Crim. Evid., sec. 131. (2) Appellant complains that the evidence did not justify the court in giving an instruction for murder in the first degree. The court did not err in giving such instruction. There was evidence tending to prove' that defendant killed his hoy to keep his wife from getting possession of him, and the child could not have given any provocation that would have reduced the grade of the crime. State v. Speyer, 182 Mo. 89. Besides, it has been declared the law in this State that the “plea of insanity, tendered by defendant, both by testimony and instructions, was in itself an admission that the act charged against him in the indictment was truly charged.” State v. Stubblefield, 157 Mo. 364; State v. Pagels, 92 Mo. 300; State v. Weis or, 117 Mo. 570; State v. Soper, 148 Mo. 217.
   BURGESS, J.

— This is the third appeal by defendant in this cause. On the first trial defendant was convicted of murder in the second degree, and, upon appeal, the judgment was reversed and the cause remanded. [State v. Speyer, 182 Mo. 77.] On the second trial defendant was convicted of murder in the first degree', and, upon appeal, the judgment was reversed and the cause remanded. [State v. Speyer, 194 Mo. 459.] Upon the third trial the defendant was again convicted of murder in the first degree, from which judgment, after unsuccessful motions for new trial and in arrest of judgment, he appeals.

The facts are fully aid fairly stated by Gantt, P. J., in 182 Mo. 77. If, however, it be thought necessary, other facts developed at this trial will be stated in the course, of the opinion.

On the second trial of this cause one Margaret Tennis^ a young girl upon whom defendant was charged with having made an assault, and for which he was under arrest at the time of the homicide, was permitted to testify over the objection of the defendant, and in passing upon the admissibility of her testimony this court said: “"We will say that any testimony by this witness as to what occurred between her and the defendant prior to the killing of Freddie Speyer has absolutely nothing to do with this case. The effect of such testimony can only have the tendency to unjustly prejudice the minds of the jury , against the defendant upon an issue not involved in the trial of this case, and upon its retrial all references of this witness having met the defendant prior to the time of the killing, and the length of time that she was with him, should be promptly excluded. While this witness, Marguerite Tennis, in her examination in chief, cross-examination and redirect examination, says but little which has any bearing upon the issues involved in this case, yet there is in her testimony some insinuations or statements from which the jury might draw inferences that the defendant had committed some unlawful act in respect to this witness, and it is not uncommon that a mere insinuation of the commission of a wrong is about as injurious as a positive and broad statement that the wrong was committed; therefore, it is highly important that no such testimony be permitted to go to the jury.” [194 Mo. l. c. 471.] This witness did not testify upon the last trial; but it is contended by defendant that this direction of the court was violated in numerous instances by the prosecuting attorney, and that the court erred in permitting John Martin, the police officer in whose custody defendant was at the time of the killing, to testify, over defendant’s objections, that upon the evening he placed defendant under arrest upon the charge of assaulting the girl, “there was a couple of ladies come up to me.” . . . “So, then I asked this little girl;” . . . “I asked this party ’[meaning the girl], if this was the man, and she said, ‘Yes.’ ” The defendant insists that, under the rule announced, the girl would not have been 'permitted to testify with reference to anything which might have occurred between her and defendant prior to the homicide, and that these remarks of the officer have reference to the same occurrence, and come under the ruling of this court on the last appeal. We are inclined to take the same view of the matter; but as the defendant himself, on July 24, 1902, in a voluntary written statement with reference to the homicide and the attending facts and circumstances, which statement was read in evidence by the State without objection, alluded to the same charge “as this woman had made against him, ” we do not think the judgment should be reversed on that ground. But we do not intend to be understood as holding that the facts and circumstances connected with said assault should'be admitted in evidence upon another trial, should such be had.

It is also claimed by defendant that the court erred in permitting the State to ask Dr. Glasscock, an expert witness, the following question: “Doctor, if that man killed the boy because he feared that he was to be put in jail on a serious charge, and the boy would be neglected and abused, and he killed him for that reason, would you regard that as an evidence that he did not know that it was wrong to kill him?” The only objections interposed by defendant to this question were that it was not in proper form, and that it was “not an examination of anything drawn out in chief.” It is clear that there was no error in overruling these objections, as they do not, under our rulings, really amount to such. Complaint is also made of the court’s action in permitting the State to ask these further questions of the same witness: “You do not know whether there was any trouble between him and his wife over the boy?” and, “Would the fact that he told the police officer that he and his wife had trouble ? ’ ’ etc. An examination of tlie record fails to show that defendant made any objection whatever to these questions, and an objection cannot be raised for the first time in the motion for a new trial or on appeal.

In the fourth and fifth assignments of error defendant complains of' the action of the court in sustaining an objection made by the State to the introduction in evidence by the defendant of certain letters which purported to have been written by defendant to his wife before the commission of the homicide. These are the same letters whose admissibility was, fully discussed by Judge Fox on the last appeal. The court held upon that appeal that the letters were properly excluded as being incompetent for the purpose of proving the affection of defendant for his child. The defendant now contends that although not admissible for that purpose, yet, as the State upon the last trial introduced some evidence tending to show that defendant had abandoned his wife, they were admissible for the purpose of showing that he had not done so. There was really no evidence that could be called such that defendant had abandoned his wife, such supposition having no further support than the testimony of the policeman, Martin, who testified that, in a conversation had with defendant in the jail where he was confined, the defendant told him that “at the time he killed his son he was all in the world he had. He said when he went in there his intention wasn’t to do anything, but there was a cloud came over him, and he was afraid he was going to be mobbed, and that his son was the only thing on earth for his, wife to get, and he said he didn’t want to leave the boy.” Being asked to tell the jury all that was said about the wife as near as he could recall it, witness said, “He simply made the remark that that was all on the earth he had, and his intention was to kill the boy and himself; in words, that is the way he put it. ’ ’ Being again asked to tell all that defendant said about his wife and the boy, witness replied, “Well, he said he had a great deal of trouble in life, and he was just getting on his feet, and this coming up he didn’t know what was going to be the outcome.” To say that by defendant’s statement to the policeman that “his son was the only thing on earth for his wife to get” he meant that he did not want his wife to have the boy for the reason that" he had separated from her is a bare and' unwarranted assumption; and how the further remark of the defendant, that he “had a great deal of trouble in life,” could be tortured into meaning that he had trouble with his wife and had separated from her, is beyond comprehension. It is clear, we think, from the evidence that the defendant’s greatest concern at the time he was placed under arrest upon the charge made by the girl was the welfare of his little son, whom he did not want to leave, in a large city, among strangers who might mistreat him, the child’s mother being many hundreds of miles away, and rather than be separated from him, under the circumstances as they appeared to his bewildered brain, he preferred taking his life as also his own; that he did not succeed in accomplishing his purpose to take his own life was only due to the quick action of the police officer who struck him with his club and took his knife away. There being no evidence that the defendant and his wife had had trouble, and had separated, his motive in killing the boy could not have been revenge upon the mother, but rather apprehension of ill-treatment of the boy by others. Besides, the case was submitted to the jury upon this latter theory. There was, therefore, no error in sustaining the objection to the letters being read in evidence.

It is also asserted that error was committed in admitting in evidence, on rebuttal, the testimony of defendant given upon the two former trials. This evidence it seems was introduced by tbe State to negative the defense of insanity. The objection interposed by defendant to its introduction was that it was “incompetent, immaterial and irrelevant, for the reason that it is not rebuttal. ’ ’ The law presumes that every man is sane, and defendant having interposed his insanity as a defense, the burden rested upon him to show by the" weight of the evidence that he was insane at the time of the homicide, and the defendant having introduced evidence to establish that defense, it was entirely proper for the State, in rebuttal, to introduce in evidence the testimony of the defendant on the former trials. [Underhill on Crim. Evidence, sec. 285.] In Com. v. Reynolds, 122 Mass. 454, it is held that statements made by a defendant while testifying at a former trial are competent either as admissions or for the purpose of contradicting him. They were voluntary statements explanatory of his connection with the transaction, and it was immaterial when or where they were made. To the same effect is State v. Oliver, 55 Kan. 711. There was no objection made at the time as to the mode of proving the defendant’s former testimony, nor was objection made to the reading of the testimony beyond the part identified by the stenographer, and it cannot be made for the first time in the motion for a new trial or upon appeal. As supporting his contention in this respect defendant relies on section 3149, Revised Statutes 1899, which provides that when evidence has been preserved by bill of exceptions in any case, the same may thereafter be used in the same manner as if such testimony had been preserved in a deposition. But that statute has no application to a defendant in any case, criminal or civil. The deposition of a defendant in a felony case is never taken,, because the law requires his presence during the entire trial. Even if the deposition of a party to a civil action be taken and filed in the case, and he be present at the trial, any statements made by bim affecting the merits may be shown against him by the adverse party, notwithstanding his presence. [Bank v. Nichols, 202 Mo. 309.] So, with respect to the defendant in a criminal case, any statements made by him as to the facts of of the case are admissible against him.

Defendant insists that the evidence did not justify the giving by the court of an instruction for murder in the first degree. As we 'have said, there was no evidence tending to prove that defendant killed his son to prevent his wife from getting possession of him, and the evidence relied upon by the State as tending to establish such fact falls far short of it. When the case was before us upon the first appeal, 182 Mo. 77, Gantt, P. J., speaking for the court, said:

‘ ‘ This record presents a case exceptional in all its features. A father is charged with the murder of his innocent, unoffending and sleeping child. That he cut the little boy’s throat with a knife is conceded. The evidence discloses that up to the fatal moment when he plunged the knife into the little one’s throat he had cherished the warmest affection for his child and had scrupulously cared for all his wants. There is not the slightest evidence of any criminal purpose in taking the child’s life beyond that which the law will presume from the act itself. The very enormity of the act suggests a doubt of the sanity of the defendant. The child himself did not and could not have been guilty of anything which the law would regard as a provocation either just or unlawful. The evidence tends to show that-the warmest affection existed between the father and the little one. We are compelled to look for an explanation of this most unnatural, deed in the circumstances detailed by the witnesses. The killing of the child is traoeahle to the circumstances surrounding the defendant at the time and just prior to the fatal act.
“The defendant was a skilled horseman and was giving exhibitions of his horsemanship for the Karnival Krew Company of Kansas City, by whom he was employed, and the little boy had become proficient in riding and accompanied his father, the mother and little sister remaining at home in New Orleans. Only a few minutes before the homicide occurred, two ladies with a little girl had appeared in front of the tent in which" defendant was to give an exhibition that night, and an officer, pointing to the little girl, inquired- of him if he knew her or had seen her, and defendant said that he had seen her around the tent, and had given her a dime to get her some-ice cream, whereupon one of the ladies began to upbraid him, and the other, the mother of the little girl, charged him with the ruin of her daughter and began to cry. A crowd commenced to collect and the officer told defendant he must take him to the station, to which defendant assented, but asked the privilege of getting his coat which was in the tent. As he went into the tent in charge of two policemen, there were threats of lynching or mobbing him heard by him. He went in, got his coat, and seer-in g his little boy asleep asked to be allowed to undress him, and when the officers learned that he had no one else to look after the child they consented. He began to undress the child, and had removed his sho.es and stockings; suddenly and before the officers could prevent it, he drew a knife and cut the child’s throat and then cut his own throat. The stroke killed the child but failed to kill the defendant. The explanation and the only explanation for this deed was that given by the defendant, namely, that knowing of the charge just made against him and believing he would be mobbed, and seeing the child before him and feeling that the little one would be • left alone and disgraced and perhaps mistreated on his, defendant’s, account, he madly determined to kill him rather than leave him to such a fate, and instantly executed the thought which he says oppressed and overcame him at that moment and that he was powerless to resist it. ’ ’

Later on, in the course of the same opinion, it is said:

“When we come to measure the conduct of defendant as a criminal act, we find all of the ordinary concomitants absent. We must discard at once all idea of malice in the popular sense of ill-will, hatred, or revenge, because the evidence demonstrates that up to the very moment of the unnatural deed he had displayed nothing but the natural affection of a father for a dutiful child. Likewise all semblance of provocation moving from the child is negatived. On the other hand, we find nothing in the facts which would permit us to ascribe the homicide to accident or misadventure, because all the testimony shows the deed was intentional. Those motives which ordinarily impel men to commit a crime of this character are not to be found in the case. We are, therefore, to test the defendant's homicidal act by old and settled principles of law, and apply them as best we can to these new and startling conditions.
“While it is a settled principle of criminal law ■ that without a criminal intent there can be no felony, it is equally well settled that a man is presumed to intend the natural, necessary and probable consequences of what he intentionally does. The act of the defendant, then,, in intentionally killing his child with a deadly weapon is presumptively murder, unless at the time he committed the act his reason and mental powers were so deficient that he had no conception of the right or wrong of the act he was about to. commit. ’ ’

Both deliberation and premeditation are necessary constituents of murder in the first degree, and while it devolves upon the State to prove both, they may be shown by either facts or circumstances. The purpose to kill may be formed the moment before it is executed as well as for an hour or a day, and still the act be premeditated. [State v. Dunn, 18 Mo. 419; State v. Jennings, 18 Mo. 435; State v. Starr, 38 Mo. 270; State v. Holme, 54 Mo. 153.] In the absence of either constituent there can be no murder in the first degree. The question, then, is, was there deliberation by defendant before killing his son? We think not. In State v. Kotovsky, 74 Mo. l. c. 249, it is said: “Deliberation is but prolonged premeditation. In other words, in law, deliberation is premeditation, in a cool state of the blood, or, where there has. been heat of passion, it is premeditation continued beyond the period within which there has been time for the blood to cool, in the given case. . . . Deliberation is also premeditation, but is something more. It is not only to think of beforehand, which may be but for an instant, but the inclination to do the act is considered, weighed, pondered upon, for such a length of time after a provocation is given as the jury may find was sufficient for the blood to cool. One in ‘a heat of passion’ may premeditate without deliberating. Deliberation is only exercised in a ‘cool state of the blood,’ while premeditation may be either in that state of the blood or in ‘heat of passion.’ ” [State v. Speyer, 182 Mo. 77.]

The evidence shows that at the time defendant entered the tent, found his little boy asleep and attempted to wake him, he had no thought of killing him; but that, all at once, the thought struck him to kill the child, and he jerked out his knife and did so’. If deliberation means prolonged premeditation, as before defined, it is clear that the killing was not deliberately done, and was not murder in the first degree. In State v. Curtis, 70 Mo. l. c. 599, it is said: “In State v. Wieners, 66 Mo. 20, it was said: ‘Premeditation and deliberation are not synonyms, and a homicide may be premeditated without being deliberately committed.’ It was further held in that case that ‘murder in the second degree is such a homicide as would have been murder in the first degree if committed deliberately. ’ If these views be correct it must necessarily follow that all intentional homicides committed with premeditation and malice, but without deliberation, must be murder in the second degree. The ■ word deliberation, as used in the statute, implies a cool state of the blood, and is intended to characterize what are ordinarily termed cold-blood murders; such as proceed from deep malignity of heart, or are prompted by motives of revenge or gain. These are classed as murders in the first degree. On the other hand, premeditation may exist in an excited state of mind, and if the passion or excitement of the mind be not provoked by what the law accepts as an adequate cause, so as to rebut the imputation of malice, an intentional killing under the influence of such a passion will be murder in the second degree.” The same rule is announced in State v. Ellis, 74 Mo. 207. If, then, as ruled in these cases, only such murders are deliberate as proceed from deep malignity of heart, or are prompted by motives of revenge or gain, no instruction for murder in the first degree should have been given in this case, for it is perfectly clear from the facts in evidence that no malignity existed in the heart of the defendant toward the child at the time he killed him and that the deed was not prompted by motives of revenge.

This court has never held that an instruction for murder in the second degree should not be given in this case, but, on the first appeal, condemned an instruction upon that degree which had been given, for the reason that it drew a distinction between defendant’s mental capacity to deliberate and his capacity to premeditate, and, in effect, told the jury that defendant might be so insane that he conld not be guilty of murder in the first degree, and yet sane enough to premeditate, and, therefore, might be guilty of murder in the second degree. The opinion, however, contained no intimation that a proper instruction for murder in the second degree should not be given.

But even if an instruction for murder in the first degree should have been given, the sixth instruction, upon that offense, is fatally defective. It tells the jury that “if they find and believe from the evidence that the defendant knew the right from the wrong of the particular act with which he stands charged, to-wit, the killing of Freddie Speyer, by cutting his throat with a pocket-knife, and if they further believe that he committed the act because he feared that he would be separated from his said child, Freddie Speyer, and that the child would fall into the hands of persons who would mistreat it, such reasons would not justify or excuse him in killing said child, and the jury will find the defendant guilty as charged in the information.” This and the first instruction given for the State each attempted to cover the whole case. The first was correct, but this was not, since it did not require the jury to find that the killing was done with deliberation and premeditation, thus ignoring entirely two necessary ingredients of the offense. It makes no reference to the first instruction, thus leaving the jury to conjecture which should guide them in their deliberations; and it is probable that the verdict was made upon this very instruction rather than the one which the court gave defining murder in the first degree. That it is erroneous is apparent at a glance, and, standing alone as it does, independent of the first instruction, it is no surprise that the defendant was found guilty of murder in the first degree. A similar instruction was condemned in State v. Lentz, 184 Mo. 223. It is, however. claimed by tbe State that, under the rulings of this court, the plea of insanity tendered by the defendant both by testimony and instructions was in itself an admission that the act charged against him in the information was truly charged. In support of this contention are cited the cases of State v. Pagels, 92 Mo. 300; State v. Welsor, 117 Mo. 570; State v. Soper, 148 Mo. 217; State v. Stubblefield, 157 Mo. 360. The three last-named cases simply follow the P'agels case, wherein it is said: “Indeed, the plea of insanity is of itself, and of necessity, a plea of confession and avoidance, the courts differing as to the quantum of evidence to sustain such plea. [1 Whart. Crim. Law (9 Ed.), sec. 61.] Such plea is but a bare denial of a part of the government’s case; it admits the act charged, but avers that there was no criminal intent accompanying the act, and, therefore, denies the crime charged. [2 Bish. Crim. Proc. (3 Ed.), sec. 669.]”

Under our code, a special plea of insanity is not required where insanity is relied upon as a defense, but may be shown on a plea of not guilty (People v. Olwell, 28 Cal. 456), or where the defendant declines to plead and the court orders the plea of not guilty to be entered for him. He may make as many defenses as he has under such circumstances; but in no event does the defense of insanity admit the grade of offense as charged in the indictment or information; nothing more than that he committed the act with which he is charged, but not that it was a crime. “Insanity is not an issue by itself, to be passed on separately from the other issues” (2 Bish. Crim. Proc. (3 Ed.), sec. 673), but, like any other issue, it is involved in the defense of not guilty, upon which the burden of proof is upon the State. Of course, if insanity is the only defense, the homicide is confessed, “but the guilt, the crime of that homicide is denied, and this is all that is denied; for it stands to reason that on no other ground could the plea of insanity have pretense of relevance in it.” [State v. Soper, 148 Mo. 217.] This is as far as our decisions on this subject go, with the exception of State v. Stubblefield, supra, in which it was inadvertently said that “the plea of insanity tendered by defendant, both by testimony and instructions, was in itself an admission that the act charged against him in the indictment ivas truly charged.” But that expression is somewhat qualified by the words, “the very plea of insanity admits -the doing of the act, but only denies its guilt because of such insanity. ’ ’ To the extent herein indicated we understand the decisions under consideration to go, and no further.

As the killing in this case was intentional, it is murder in the second degree, or manslaughter in the fourth degree, under section 1834, Revised Statutes 1899, which declares that an intentional killing, without malice aforethought, is manslaughter in that degree. [State v. Dierberger, 96 Mo. 666; State v. Edwards, 70 Mo. 480; State v. Curtis, 70 Mo. l. c. 600; State v. Watson, 95 Mo. 411.]

We cannot conclude this opinion without expressing our surprise at the conviction of defendant of any offense, under his defense of insanity and the evidence in support thereof, which shows, as we think, that he was insane at the time of the homicide. That his act in taking the life of his son, under the circumstances disclosed by the record, was that of an insane man hardly admits of a doubt. Yet, in the face of the facts as detailed, and the insane motives that prompted the deed, the defendant has by three different juries, composed of the best citizens of the county in which the offense was committed and the cause tried, been found guilty of murder. With due deference to the men who composed these juries, and especially the last one, we must say that we are not satisfied with their verdict, and feel constrained to say that we do not think it ought to he permitted to stand. In the former opinions of this court it is clearly intimated that the court was of the opinion that defendant was insane at the time of the homicide, hut deferred to the finding of the juries upon that question.

For these considerations the judgment is reversed and remanded.

All concur.


source: Caselaw Access Project

author: FOX, P. J.

license: Public Domain

text:
    THE STATE v. ANTON MISPAGEL, Appellant.
    Division Two,
    December 10, 1907.
    1. EMBEZZLEMENT: Money: Draft. A charge of embezzlement or larceny of money is not sustained by proof of the embezzlement or larceny of a hank draft or check.
    2. -■: -: -: Variance. The indictment charged defendant, who was the cashier of a hank in St. Charles, with embezzling four thousand dollars, lawful money of the United States. Held, that the charge was not sustained by proof that defendant, at a time when he had no money in the St. Charles hank, issued the draft of said hank for one thousand dollars, drawn on the American Exchange Bank of St. Louis, in the usual form of a hank draft, signed it as cashier, and sent it to" an investment company in St. Louis, which collected one thous- and dollars thereon, and placed six hundred dollars to the credit of defendant on his individual local account in St. Louis, and four hundred dollairs on his individual New York account. The charge that he had embezzled money was not sustained by proof that he had wrongfully issued- and appropriated to his own use the draft.
    3. -: Essence of Offense. Embezzlement is an offense against property and property rights, and the essence of the offense is the wrongful conversion of property; hence, a reasonably fair description of the property in the indictment or information is an essential averment, and the proof must sustain the averment. [Distinguishing State v. Meysenhurg, 171 Mo. 1.]
    4. -: Jeofails. The Statute of Jeofails affords no relief in a case where the information charges embezzlement of money and the proof shows the embezzlement of a hank draft or check.

      5. ——: Draft. A draft drawn by the cashier of a hank upon another hank and sent by him to an investment company for investment and by it collected and the amount deposited to his credit, is not a part of the assets of the bank of which he was cashier, but simply the agency or means employed by him to get possession of money owing his employer, and is of no more significance than any other paper or instrument through which the same evil purpose is accomplished.
    6. -: —-: Conversion: Venue. Money collected on a draft, drawn by the cashier of a bank in St. Charles on a bank in St. Louis, by the agent of the cashier to whom it was sent, and there applied to the cashier’s personal account, was converted by the cashier in St. Louis through his authorized agent there. 'The cashier had authority to collect in the name of his bank any money to its credit in the St. Louis bank, and until collected the draft was a mere chose in action, and being such, the money collected thereon was not converted until collected. Nor does the fact that the cashier was not present in St. Louis when the draft was collected alter the case; nor does the further fact that he formed the purpose in St. Charles-to convert the money when he drew and sent the draft. The act of conversion was committed in St. Louis, by defendant, through his authorized agent to whom he sent the draft to be collected.
    7. -: -: -: Of Trust Fund. Our statute does not make a failure to account for a trust fund or a fund received by an agent or officer, ah offense. The essence of the offense of embezzlement is the wrongful conversion of the fund. Failure to- account for such fund may constitute very material evidence tending to establish conversion, yet failure to account for it does not constitute the offense of embezzlement.
    8. -: Venue. In Missouri there is no special statute fixing jurisdiction in embezzlement cases, and that being the case the jurisdiction exists in the county in which the crime is consummated or completed.
    9. -: -: Bank Draft: Conversion of Money. Defendant, cashier of a hank in St. Charles county, drew a draft upon a hank in St. Louis and sent it to his agent in St. Louis, who collected it, and deposited the amount to the defendant’s individual credit, and he was indicted in St. Charles county for embezzling money of the St. Charles bank. - Held, that the actual conversion of the money was committed through his agent in St. Louis, and every element of the offense, except the inferentially formed intent to convert the money to be obtained in St. Louis to defendant’s use, was present in St. Louis and none of them was present in S-t. Charles county, and the venue was in St. Louis, and a demurrer to the evidence at the trial in St. Charles county should have been sustained.

      Appeal from St. Charles Circuit Court. — Row. Jas. D. Barnett, Judge.
    Reversed and remanded.

      Thos. B. Harvey and William L. Mason for appellant.
    (1) The description of the property alleged in the information to have heen embezzled must be proved as laid. If the evidence showed that Mispagel embezzled anything, it was a draft, not money, as charged in the information. The variance is fatal. State v. Wissing, 187 Mo. 106; State v. Crosswhite, 130 Mo. 366; State v. Dodson, 72 Mo. 283; State v. Bacon, 170 Mo. 161; State v. Kroeger, 47 Mo. 530; State v. Schilb, 159 Mo. 142; Carr v. State, 104 Ala. 43; Lancaster v. State, 9 Tex. App. 393; Rex v. Kenna, L. R. 1 C. C. 113; Carter v. State, 53 Ga. 326 ; People v. Leipsic, 62 Pac. 311; Baker v. State, 31 Ohio S. 314; Goodhue v. People, 91 111. 37; State v. Hanley, 170 Conn. 265; State v. Burks, 159 Mo. 568; Weiner v. People, 186 111. 503; Block v. State, 44 Tex. 620; Hamilton v. State, 60 Ind. 153; Com. v. Weinfield, 45 Mass. 468; Com. v. Wood, 142 Mass. 459; Queen v. Croshy, 1 Cox C. C. 10; Com. v. O’Keefe, 121 Mass. 59; Com. v. Howe, 132 Mass. 258; Bork v. People, 91 N. Y. 5; Bishop on Statutory Crimes, sec. 346; McClain’s Cr. Law, sec. 652. (2) The ownership of the property alleged to have been embezzled must be proved as laid. If the American Exchange Bank, against which the draft was drawn, paid any money upon that draft, it paid its own money, not the money of the St. Charles Savings Bank. If a bank or any other person deposits money, checks or drafts, in another bank, such money, checks or drafts deposited become the property of the bank in which deposited. The relation of debtor and creditor is established between the depositor and depositary. Therefore, if any money was converted by Mispagel by means of tbe draft offered in evidence to prove the charge, it was not the money of the St. Charles Savings Bank as charged. Utley v. Hill, 155 Mo. 259; U. S. v. Burton, 196 U. S. 283; Rouguth v. People, 186 111. 97; State v. Morgan, 280 Ore. 578; State v. Cooper, 102 Iowa. 146. (3) If any money was appropriated to Mispagel’s use as the result of the draft offered in evidence, such money was not under his care or in his possession as charged in the information, but was in the possession and under the care of the American Exchange Bank. Therefore, since the proof must support the allegation of possession by the accused of the property charged to have been embezzled, the court should have directed an acquittal. R. S. 1899, sec. 1912; 15 Oye. Law“& P'roc., 526. (4) If, under the evidence, there was any embezzlement of draft or of money, that embezzlement occurred in St. Louis. If Mispagel sent the draft to St. Louis and it was there, upon his direction, placed to his credit, the embezzlement of the draft occurred in St. Louis, and if any money was paid on said draft it was paid and converted to his use in St. Louis. The venue, therefore, should have been laid in St. Louis. State v. Bacon, 170 Mo. 161; State v. Fraker, 148 Mo. 150; State v. Gritzner, 134 Mo. 527; State v. Lichliter, 95 Mo. 402; State v. Shaeffer, 89 Mo. 271; U. S. v. Burton, 196 U. S. 283; Bates v. State, 124 Wis. 612; People v. Graham, 47 L. R. A. 736.

      Herbert 8. Hadley, Attorney-General, N. T. Gentry, Assistant Attorney-General, and Theodore C. Bniere for the State.
    (1) The venue in this case was properly laid and proven in St. Charles county. State v. Meysenburg. 171 Mo. 1; State v. Shaeffer, 89 Mo. 271. (2) Appellant contends that the. embezzlement occurred in St. Louis, where the money was received by his brokers, and not in St. Charles, where he issued the draft, and sent it by mail to St. Louis, to his broker, and where defendant formed the criminal intent to embezzle the bank’s funds. As an authority for his position he cites cases in which the courts have passed on the question of jurisdiction in cases of receiving money under false pretenses. There is a broad distinction in cases of embezzlement and cases of obtaining money under false pretenses. In cases of receiving .money under false pretenses, the jurisdiction lies in the forum where the money was received. In this case the defendant testified he sent the money to St. Louis; by so doing he made the postal service his agent in abstracting the money; the crime was committed in St. Charles county, where the draft was drawn and issued, and where the criminal intent was formed, and where, defendant had to account to his employer. If this were otherwise, every defaulting cashier could deposit all the money of his employer in foreign lands and in foreign banks; abstract it to his. heart’s content by drawing it out on drafts drawn on the foreign depository and payable to himself, or to his agent or confederate; and when asked for an accounting at the forum of the bank’s place of business, and when he had to account to his employer, say, “It is true, I ought to have the money misappropriated, but I cannot be held to account for the money here. I.sent your money to a foreign land; it is true, I never went there myself, but I abstracted your money by means of a draft, payable to my agent or confederate in Europe, and where my said agent or confederate collected it, and you must go to Europe to hold me to account.” The appellant will find no authority where this contention is upheld. Defendant’s intent to embezzle was completed in St. Charles county. 2 Bish. Crim. Law, sec. 314; 1 lb. sec. 504 ; 2 Bish. New C'rim. Proc., sec. 326; State v. Hosher, 26 Wash. 643; State v. Bailey, 50 Oh. St. 644; Kossakowski v. People, 53 N. E. 115; McClain’s Crim. Law, 650. The authorities agree that if the transaction constituting the offense extended through different counties that in which the conversion took place has not the exclusive jurisdiction. • 1 Bishop on Crim. Proc., 61; 7 Ency. PI. & Prac., 412; State v. Herger, 106 Iowa 712; State v. Merwell, 113 Iowa 360. But where the transaction extended to different counties, the jurisdiction of the county in which its act of conversion occurred is not exclusive. 7 Ency. Plead. & Prac., 412; State v. Dennis, 80 Mo. 594; State v. Lichliter, 9'5 Mo. 402; State v. G-ritzner, 134 Mo. 512; Works on Jurisdiction, p. 470; 2 Bishop on Crim. Law, pp. 231 and 591; Kossakowski v. People, 53 N. E. 115; State v. Bailey, 50 Ohio St. 644; Cohn v. State, 20 Texas App. 244; Com. v. Parker, 165 Mass. 526; McClain on Crim. Law, 650. (3) Appellant contends that if anybody received any money as a result of the transaction, it was not the money of the St. Charles Savings Bank, and was never in Mispagel’s possession or under his care, and for that reason defendant was not guilty of embezzlement. It was the duty of Mispagel to take charge of all the bank’s funds. He was the custodian of the bank’s funds, and these funds were under his control, and he had to account for them at St. Charles. He embezzled those funds by depositing them with the St. Louis banks, and then fraudulently drew them out and misappropriated them to his own use, and by this means there was a shortage in the cash belonging to the St. Charles bank. To say that the money he thus embezzled was not the money of the St. Charles Savings Bank, but the money of the St. Louis bank, amounts to saying that the defendant, by the means employed, could abstract all the cash of the bank and appropriate the same to his own use, and when confronted with the charge of embezzling all of the cash of the bank, he would reply: “I deposited the money I embezzled in the St. Louis bank to the St. Charles Savings Bank’s credit; and when I embezzled the money, so placed to the bank’s credit, I did not embezzle the money of the St. Charles Savings Bank, for it did not belong to the St. Charles Savings Bank, but to the St. Louis bank, and I am no embezzler.” The technical cob-web spun by appellant would make every bank cashier embezzler immune from punishment. Defendant appointed his brokers to get the bank’s money for him by means of the draft issued, and this was a conversion of the money of the bank to his own use. State v. Woodward, 171 Mo. 503.
   FOX, P. J.

— Defendant was tried and convicted in the circuit court of St. 'Charles county, and was by said court sentenced to serve two years in the penitentiary on an information in this language:

Theodore C. Bruere, Prosecuting Attorney within and for the county of St. Charles, in the State of Missouri, upon his oath, informs the court that Anton F. Mispagel, late of the county of St. Charles aforesaid, on the 28th day of December, 1903, at the county of St. Charles aforesaid, and State aforesaid, being then and there an officer and agent, to-wit, the cashier of and for a certain incorporated company, to-wit, the St. Charles Savings Bank, and the said Anton F. Mispagel being then and there not a person under the age of sixteen years, did then and there by virtue of his said employment as such officer and agent as aforesaid of the said incorporated company, have; receive and take into his possession and under his care certain money to a large amount, to-wit, to the amount of four thousand dollars, lawful money of the United States and of the value of four thousand dollars, of the property and moneys belonging to the said incorporated company, and the said Anton F. Mispagel did afterwards, the said money then and there feloniously embezzle and fraudulently and feloniously convert the same to his own use, without the assent of his employer, the said incorporated company, the owner of the said money; and so the said Anton P. Mispagel did then and there, in manner and form aforesaid, the said money, of the property of the said incorporated company, feloniously steal, take and carry away and converted the same to his own use contrary to the form of the statute in such case made and provided and against the peace and dignity of the State. Theodore C. Bruere.”
“And Theodore O. Bruere, Prosecuting Attorney, within and for the county of St. Charles, in the State of Missouri, upon his oath, informs the court that Anton P. Mispagel, late of the county of St. Charles aforesaid, and State aforesaid, on the 28th day of December, 1903, at the county of St. Charles aforesaid, being then and there an officer, to-wit, the cashier of and for a certain incorporated company, to-wit, the St. Charles Savings Bank, and the said Anton-F. Mispagel being then and there not a person under the age of sixteen years, certain money to the amount and value of four thousand dollars, the same being then and there lawful money of the United States, but the description of which said money is to the Prosecuting Attorney unknown, and which said money was then and there the money and personal property of thei said St. Charles Savings Bank, a corporation, as aforesaid, did unlawfully, fraudulently and feloniously embezzle and convert to his own use, without the assent of the said incorporated company, his employer, which said money had then and there come into the possession and under the care of him, the said Anton P. Mispagel, by virtue of his said employment as such officer, as aforesaid, of said incorporated company, contrary to the form of the statute in such case made and provided and against the peace and disuity of the State. Theodore C. Bruere,
‘‘ Prosecuting Attorney. ’ ’

It appears that there were eleven other similar in-formations pending in that court against the defendant, and those with this one charged embezzlements in the aggregate sum of $77,752.37. There were also two indictments in the city of St. Louis, charging in each the embezzlement of $1,000. It also appears that the bank had demanded, of defendant and his bondsmen the payment of an alleged shortage of $90',326.15, and later in three separate suits had sued defendant and his bondsmen for the aggregate sum of $106,769'.52. The information hereinabove set out is known as Information No'. 10. To this information, defendant interposed the following motion:

“Comes now the defendant, by his attorneys, and moves the court to quash the information filed herein, because—
“1. The facts alleged therein constitute no offense.
“2. The allegations are duplicitous in alleging in the first count that the defendant was both an officer and an agent of the incorporated company, and in the second count that he was simply an officer of said incorporated company.
“3. Said information fails to identify the incorporated company by an allegation of the State or country by virtue of which it was incorporated, or by alleging the place of business of said incorporated company.
“4. Because at the time of filing the information and long time prior thereto and at the time of the alleged embezzlement, Theo. C. Bruere, the prosecuting attorney, was an officer, to-wit, a member of the board of directors of the St. Charles Savings Bank, and interested in the funds and properties thereof.”

On this motion it was admitted that the prosecuting attorney filing the information was a director and stockholder in the St. Charles Savings Bank during the years 1903, 1904, and 1905. The court overrule¿I the motion and this is assigned as. error.

• Thereupon, the defendant filed a motion to require the State to elect upon what transaction it would stand, in which motion is set out all the facts above stated as to the number of informations, the amount of the total alleged embezzlements, the amount of the claim or demand of shortage as made by the bank against defendant and his bondsmen, the amount sued for in the three several suits, and also further alleging that the demands aforesaid were in writing and covered a period of fourteen years, including numerous transactions, and items, and that no such sum as $4,000 appeared in said items. On this motion were offered in evidence the in-formations and indictments aforesaid, the itemized demand aforesaid, and the petitions in the three several suits. This motion was overruled, and the action of the court thereon assigned as error in the motion for a new trial.

To prove the alleged embezzlement of $4,000 named in the information, the State introduced drafts as follows: Draft for $500 drawn October 26, 190'3, in favor of Edwards & Sons, a brokerage firm in St. Louis, on the American Exchange Bank; draft for $800 drawn September 9', 1903, in favor of Edwards & Sons, on the American Exchange Bank; draft for $1,000 drawn February 12th, 1903, in favor of Edwards & Sons, on the Mechanics’ National Bank; draft for $200 drawn June 3,1903, in favor of Edwards & Sons, on the Mechanics ’ National Bank; draft for $1,000 drawn November 20,1902, in favor of the Orthwein Investment Company, a brokerage concern doing business in St. Louis, on the American Exchange Bank; draft for $500 drawn July 1,1902, in favor of the Orthwein Investment Company, on the Mechanics’ National Bank.

These were described by the prosecuting attorney in his opening statement to the jury, and it was further stated that he expected to show the embezzlement of the $4,000, by these said six drafts. When the first described draft was first offered in evidence the defendant again renewed his motion to require the State to elect upon what transaction it would proceed. This was overruled and defendant excepted. Upon the close of the evidence offered by the State, the defendant demurred in this language:

“Comes the defendant at the conclusion of the evidence on behalf of the plaintiff, and demurs to the same as insufficient to sustain the allegations of the information, and moves the court to instruct the jury to acquit, on the ground and for the reasons, as follows:
“1. The allegation is the embezzlement of money and the evidence tends to show the embezzlement, if any, of drafts or commercial paper.
“2. The allegation is embezzlement in the eounty of St. Charles, and the evidence shows that any conversion of drafts or money that did occur, occurred in the city of St. Louis.
“3. The money alleged to have been converted to his own use by the defendant, was in the city of St. Louis and not in the county of St. Charles.
“4. The money alleged to have been converted by defendant was not in his possession at all.
“5. The proof fails to show that defendant had in his possession any money whatsoever, at the times of drawing the drafts or at any other time, or that there was any money in his custody in the bank of which he was cashier or belonging to said bank.
* ‘ 6. The evidence is insufficient to show a primafacie case, and there is a fatal variance between the allegations of the information and the proof offered in support thereof.
“7. The evidence fails to show that such moneys as the St. Charles Savings Bank had in the St. Louis banks were not placed there and to the credit of the St. Charles Bank, by the defendant in sufficient amount to meet the drafts offered in evidence.
“8. The evidence fails to show the cash on hand in the St. Charles Savings Bank at the time of the drawing of the alleged drafts, or that the money to meet said drafts was not placed in said bank by defendant, and fails to show that the defendant did not give value for said drafts when drawn.
“9. The evidence fails to show the status of the account between the St. Charles Savings Bank and this defendant as its cashier at the times of drawing said drafts, and that at said times he as such cashier did not have a credit to his balance to justify him in drawing said drafts and converting them to his. own use.”

This demurrer was overruled and exceptions saved. The six drafts and other evidence having been introduced, the defendant thereupon moved the court to require the State to elect upon which of the said six transactions it would stand, which motion the court sustained, and the State elected to stand on the draft of November 20', 1902, numbered 97,985, drawn in favor of the Orthwein Investment Company for $1,000, and drawn on the American Exchange Bank of St. Louis, which draft was in the usual form of a bank draft and signed, “A. F. Mispagel, Cashier.” This election necessarily shortens a statement to be made from an exceedingly voluminous record. This draft was in defendant’s handwriting and signed by him. He sent it to the Orthwein Investment Company at St. Louis, which Company collected $1,000 thereon and placed $600 to the credit of defendant on his individual local account in St. Louis, and $400 to the credit of defendant on his individual New York account. Defendant was speculating in stocks and grain through this and other brokerage companies. The evidence shows that while this draft on its face was drawn in favor of the •Orthwein Investment Company, the defendant, on the stub kept in the draft book of the bank in St. Charles, had entered said draft as payable to one Dan Stevens. Stevens was the holder of a time deposit certificate given by the St. Charles Savings Bank, and on the day this draft was issued, defendant had an entry made on the books to the effect that $1,000 had been paid Stevens on his time certificate. No such payment had been made at that time as testified to by Stevens and in effect admitted by defendant. Stevens testified that he sent no money to the Orthwein Investment Company. By the payment of this draft the credit balance of the St. Charles Savings Bank with the American Exchange Bank was reduced by the amount of the draft. Defendant, on the day he issued said draft, gave the American Exchange Bank credit for the $1,000' on the books of the St. Charles Savings Bank, thus reducing the balance due from the American Exchange Bank to the St. Charles Savings Bank by the sum of one thous- and dollars.

By a mass of testimony defendant undertook to explain away tbe alleged shortage to the bank. He also undertook to explain away the single transaction finally involved in this case by reason of the election by tbe State. He claimed to have placed money in the vault of the bank sufficient to cover the transaction, although his personal account with the bank, as shown by the books, did not show it. Several errors as to the giving and refusal of instructions are urged; but with the views we entertain of the law of the case it is not essential that such instructions should be here reproduced. The trial court’s attention was directed to them in the motion for new trial and they are fully preserved in the record.

This is a sufficient statement to indicate what this case is and the nature and character of the testimony upon which it was submitted to the jury. At the clo_se of the evidence the court instructed the jury in accordanee with its views applicable to the testimony developed at the trial and the canse was then submitted to the jury upon the evidence adduced and the instructions of the court, and as before stated they returned a verdict finding the defendant guilty and assessing his punishment at imprisonment in the penitentiary for two years. Timely motions for new trial and in arrest of judgment were filed and by the court overruled. Sentence was pronounced and judgment entered in conformity to the verdict and from this judgment the defendant prosecuted this appeal and the record is now before ns for consideration.

OPINION.

The record before us presents a number of very important legal propositions. Some of them are exceedingly close and are entitled to be classed among the many complicated legal propositions with which courts are frequently confronted. We take it that it is not out of place to say, at the very inception of the consideration of this cause, that counsel representing the State, as well as those representing the appellant, have materially aided us in our efforts in- seeking a correct solution of the questions presented to our consideration by a clear and able presentation of them in their respective briefs.

I.

It is contended by learned counsel for appellant that the evidence fails to establish the material allegations in the information. In other words, it is insisted that the charge- in the information of embezzlement of money is not sustained by the proof, which shows that he converted to his own use in St. Charles county a draft. Upon this proposition we take it that the rule is well settled that in an information for embezzlement, like an information for larceny, the property embezzled must be described and the proof must be in substantial accord with such description. Embezzlement is. an offense against property and property rights, and the correct value and description in charging such offense are essential and material averments. In treating this subject, McLain, in his work on Criminal Law, vol. 1, sec. 652, thus states the rule: “As a general proposition the money or property should be described with the same certainty as in an indictment for larceny, and if there has been a change in form of the property between the time of receipt and time of embezzlement, it should be described as of the form at the time of embezzlement.”

After a careful consideration of the adjudicated cases in which this question was in judgment before the appellate courts, as well as the text-writers treating of this subject, we are lead to the conclusion that a charge of embezzlement or larceny of money is not sustained by proof of the embezzlement or larceny of a draft or check. Mr. Bishop, in his work on Statutory Crimes (3 Ed.), sec. 346, states the rules of law applicable to this subject in the following language: “The word ‘money’ means, in these statutes, only what is legal tender. It was even adjudged in Texas to extend simply to metallic coin, and not to include our national greenbacks. Therefore, it does not comprehend bank-bills, though they pass current, or United States treasury warrants, or county claims, or orders of a railroad company on its treasurer, or mere promissory notes, or bills of exchange, or bank checks, or ordinarily anything which is a mere representation of money.”

In Carr v. State, 104 Ala. l. c. 56, which was a case of embezzlement, the court, in discussing the propositions now before us, said: “Each count of the complaint charges the defendant with having received, in one form or another, money from Mrs. Rice. On one aspect of the evidence, he received only a check from her directly or indirectly. Obviously a check is not money, and obviously also unless he did receive money of hers, the court should have acquitted him. Charge 20 asked by the defendants asserts this, and should have been given.” Charge 20, referred to in the Alabama case just cited, which the court said should have been given, told the jury that “a check is not money, and if you believe from the evidence that the defendant received from Mrs. Rice no money, then you must find him not guilty. ’ ’ A similar ruling was made by the appellate court of Texas. In Lancaster v. State, 9 Tex. App. 393, the defendant Lancaster was charged with the larceny of one hundred and forty-two dollars, current money of the United States. The proof adduced upon that charge was that he received from the prosecuting witness checks on a bank, drawn by the prosecuting witness and payable to defendant, aggregating $138, and $3 in cash. The court, in discussing the legal propositions disclosed upon that state of facts, said: “We are of opinion that proof of having obtained checks' or orders on a bank for money will not support an allegation charging the theft of lawful money of the United States. There was proof of the receipt of three dollars in money, it is true, but this proof alone would not support a conviction for felony.”

So in the case of Commonwealth v. Wood, 142 Mass. 459. The indictment in that case charged that by false pretenses the prosecuting witness was induced to part with and deliver to the defendant $556.50 in money. It was expressly held that the charge was not sustained by proof of the delivery of a check or draft. The same court, in Commonwealth v. Howe, 132 Mass. l. c. 258, in discussing the proposition now under consideration, said: “The third count charges that the defendant obtained by false pretenses the sum of one thousand dollars from one Bailey; and the proof was, that Bailey paid and delivered to the defendant ‘the sum of seven hundred and sixty dollars, and that in the form of a certificate of deposit of a bhnk in Philadelphia.’ It is objected that this was a variance; and this objection must prevail. We must assume that defendant obtained from Bailey a certificate of deposit of a bank in Philadelphia, for the sum named. The variation in amount is immaterial; but an averment of obtaining a sum of money by false pretenses is not supported by proof of obtaining a certificate of deposit of a bank.”

In Goodhue v. People, 94 Ill. l. c. 47, the indictment charged the embezzlement of money, and the proof adduced upon the trial established the embezzlement of county warrants or orders. It was held by the Supreme Court of that State that the charge was not sustained by such proof.

The doctrine announced in the authorities heretofore cited finds full support in numerous other cases. [People v. Leipsic (Cal.), 62 Pac. 311; Block v. State, 44 Texas 620; Hamilton v. State, 60 Ind. 193; Com. v. Merrifield, 45 Mass. 468.]

This precise question has never been passed upon by the Supreme Court of this State. In State v. Dodson, 72 Mo. 283, where the charge was the embezzlement of three-horses, it was held improper to admit evidence showing the embezzlement of the proceeds of such horses. In State v. Crosswhite, 130 Mo. l. c. 366, the charge was the embezzlement of potatoes. It was held that evidence of the embezzlement of the- proceeds and an instruction thereon were improper. In State v. Schilb, 159 Mo. l. c. 142, the charge was embezzling money. It was held that such charge- was not sustained by proof of the embezzlement of a cow and calf. Now, while it must be frankly conceded that these cases are not applicable to the proposition now under discussion and are of little value in the solution of the propositions now being considered, however, they are important as showing the tendency of this court to sustain the general doctrine that in cases of embezzlement and offenses against property there must be a reasonably fair description of the property and that upon the trial the proof must conform to such description.

In the case of State v. Wissing, 187 Mo. l. c. 106, it was urged by the appellant that an instruction was erroneous because it assumed that the charge of embezzlement of money was satisfied by the proof of embezzlement of checks. Judge Burgess, who wrote the opinion in that case, did not discuss the proposition for the reason, doubtless, that there was no necessity for such a discussion. He clearly pointed out that the evidence in that case sustained the charge of the embezzlement of money by abundant proof which established beyond question that money in fact had been embezzled; therefore, it was simply held that there was no error in the instruction, because the proof shows that in fact money had been embezzled.

Applying the rules of law as heretofore indicated in the authorities cited, we are of the opinion, even conceding that the draft, as identified in this case, was one which could be made the subject of embezzlement, still the proof of the conversion of such draft does not sustain the charge in the information that the defendant converted to his own use one thousand dollars in money, of the property of the bank of which he was cashier. Tn other words, where an indictment or information charges the embezzlement or stealing of money, it is not sustained by proof of embezzlement or stealing of a check, draft, bond or other property. The proof must be in substantial accord with the charge in the information.

The conclusion reached upon this proposition is in no way in conflict with the doctrine announced in. State v. Meysenburg, 171 Mo. 1. The offense in that case was statutory bribery, and the essence of the offense was the corrupt agreement, not the character of the property -which passed by reason of the corrupt agreement. In the case at bar the. very essence of the offense is the conversion of property, hence a reasonably fair description of the property is an essential averment in the indictment or information, and the proof must sustain the averment, and the, Statute of Jeofails can in no way relieve the necessity of such essential requirement.

Aside from all this, the draft as designated and identified by the proof in this case did not in fact constitute any part of the assets of the St. Charles Savings Bank. It was entirely unlike drafts, checks and bonds which are frequently deposited in banks and become a part of their assets. Under the facts of this case it was not entitled, in the ordinary sense and understanding in commercial usage, to be classified as a piece of commercial paper constituting a part of the assets of the bank. As applied to this case it was simply the agency and means employed by the defendant to get possession of money which was owing his employer, and was of no more significance than any other instrument in the form of a receipt or in any other form by which the same evil purpose could have been accomplished.

Under the facts in this case it is clear that the St. Charles Savings Bank had no specific money in the American Exchange Bank, but it was simply a creditor of the American Exchange Bank, and had a chose in action as against such bank. In other words, the simple relation of creditor and debtor existed, and if the defendant, instead of using this so-called draft, had used an ordinary receipt and either presented it in person or through his agent, and by this means obtained the thousand dollars, the offense would have been the same. It is clear that the defendant, as cashier of the St. Charles Savings Bank, had authority to collect indebtedness due such bank and when this one thous- and dollars was paid to his authorized agent in the city of St. Louis, or if paid to the defendant himself in the city of St. Louis, such money, when so paid, was the property of the St. Charles Savings Bank. Under the facts of this case such property was received by defendant through his agent in the city of St. Louis, and it appearing from the evidence adduced that defendant’s agent made application of such money under the directions of the defendant, to the satisfaction of his (defendant’s) individual account, it must be held that the conversion of this money occurred in the city of St. Louis through the authorized agent of the defendant.

In State v. Bacon, 170 Mo. 161, the defendant was entrusted with a pension check for $36 in Douglas county, which he was authorized to take from that county to Norwood in Wright county and cash and return with the money to Cheuey, the owner of the check, in Douglas county. An information was filed against the defendant in Douglas county charging him with embezzlement of- the check and upon- that charge he was tried and acquitted in the circuit court of Douglas county. He had collected the amount of money due upon the check in Wright county and converted the same to his own use, and an information was filed against him in Wright county charging him with the embezzlement of the money so converted. To the information filed in Wright county the defendant filed a plea of autrefois acquit, in which he alleged that he had been tried and acquitted of the same offense in Douglas county. It was held in that case, Judge Burgess speaking for the court, that the defendant was properly convicted of the crime in Wright county and properly acquitted of the charge in Douglas county. In that case, in view of the embezzlement of the money in Wright county, collected upon the pension check which was entrusted to the,defendant in Douglas county, it would not be a violent indulgence of inference, in view of his subsequent acts, that when he was entrusted with the check in Douglas county he then and there formed the intent of collecting the money in Wright county and embezzling it. However, as before stated, Judge Burgess held, and correctly so, that the conviction was proper in Wright county where the conversion actually took place.

In the case at bar it makes no difference, so far as the commission of the offense of emhezzlement is concerned, that the defendant was not present in person in the city of St. Louis. As cashier he had the authority to collect the chose in action held by the St. Charles Savings Bank against the American Exchange Bank, and- whether the money was collected hy his agent in the city of St. Louis and there applied to the defendant’s personal account, thereby converting the money to defendant’s use under the defendant’s directions, or whether he had gone in person and collected such money in the said city of St. Louis and converted the same to his own use, in the same manner as was done by his agent, by applying it to the satisfaction of his own individual account, the offense would have been the same, and the conversion of the money would have occurred in the city of St. Louis.

In State v. Bailey, 50 Ohio St. l. c. 647, the court, in discussing the proposition now under consideration, said: “That the presence of the offender within the county, where a crime is committed, is not always necessary to give jurisdiction, is a settled principle,” citing, in support of the doctrine, Norris v. State, 25 Ohio St. 217. The Norris case, cited above, was one involving the obtaining of property under false pretenses. The defendant in that case resided in Springfield, Clark county, Ohio. The company with which the defendant did business was resident in Akron, Summit county, the same State. The false pretenses by which the defendant obtained tbe property were embraced in a letter written by the defendant at Springfield to tbe company at Akron, and in tbe letter be directed them to ship tbe goods by freight. In compliance with tbe request of tbe defendant contained in sncb letter tbe company delivered tbe goods to tbe railroad company, and upon such state of facts tbe court held that such railroad company was tbe agent of tbe defendant to receive tbe goods, and that tbe crime was completed’ and committed in Summit county and not in Clark county, where tbe defendant resided, and this doctrine was announced notwithstanding tbe fact that defendant bad not been in Summit county. This case of Norris v. State has been expressly approved by this court in two cases, State v. Shaeffer, 89 Mo. 271, and State v. Lichliter, 95 Mo. l. c. 408.

Mr. Works, in bis treatise on Courts and' Their Jurisdiction, page 470, thus states tbe proposition: “Nor is it necessary that the party committing tbe offense should, at tbe time of tbe commission of it, be actually within tbe State. Por example, a party in one State may, through innocent agents, commit an offense against tbe laws of another State, and within its borders, and thus render himself amenable to prosecution in tbe latter State.”

II.

Having reached tbe conclusion as heretofore indicated, that tbe actual conversion, of tbe money charged in tbe information as shown by tbe evidence in this case, occurred in the city of St. Louis, and thatvsuch act of conversion was done in said city by and through the defendant’s authorized agent, we are next confronted with tbe exceedingly interesting as well as important proposition in this case as to where the venue of tire commission of tbe offense by the defendant should be laid. Tbe record sharply presents tbe question as to whether the embezzlement of the money as charged in the information should have been charged to have occurred in the city of St. Louis'or in St. Charles county. Defendant’s place of employment was in St. Charles county and it must be conceded that it can be reasonably inferred that the criminal intent was formed in St. Charles county, but the criminal act of conversion was in the city of St. Louis. Ordinarily the venue would be in the city of St. Louis. To illustrate: If I form an intent while in Cole county to steal a horse, which I know I can find in Callaway county, and pursuant to that intent cross the river, and actually steal the horse,' the crime is complete in Callaway county, and that is the only jurisdiction for prosecution, unless I take the stolen animal to some other county, where, by force of our statute, I may be prosecuted elsewhere.

The learned Attorney-General .representing the State insists that in the case at bar there are two jurisdictions and the State may elect, as it has in this case. It is manifest that the defendant, Mispagel, did not convert any money of the St. Charles Savings Bank which he had in his possession in St. Charles county. Directing our attention to the proposition urged by the State that in this case there was jurisdiction either in the county of St. Charles or in the city of St. Louis, we will say at the very inception of the consideration of that question that the evidence shows the existence of the relation of bank and cashier, and the by-laws, which were introduced in evidence, gave the cashier of this bank, who was the defendant, the right to exercise certain powers and imposed upon him certain duties which are ordinarily performed by cashiers of banks, without specifically mentioning what the powers or duties are. The defendant had to account for the moneys and other property received by him belonging to the bank, and presumably at the place of business of said bank, and it is urged by the State that, having formed the intent in St. Charles county, and having to account for the money to his employers in said county, this conferred jurisdiction upon the circuit court of St. Charles county, notwithstanding the fact that the actual money was both received and converted in the city of St. Louis, and we frankly confess that this contention is not wholly without some weight. It must, however, be observed that our statute does not make a failure to account for a trust fund, or a fund received by an agent or officer, an offense, but the essence of the offense is the wrongful conversion of the fund, and while failure to account for such fund may constitute very material evidence tending to establish the act of conversion, yet the failure to account by no means constitutes the offense of embezzlement of the fund.

In Works on Courts and Their Jurisdiction, page 471, it is announced that the general rule is that where no statute on the subject prevails, the jurisdiction exists where the crime is consummated or completed. In this State we have no special statute fixing jurisdiction in embezzlement cases. “At common law an indictment can be found in that county only in which the crime has been committed.” [12 Cye. 229.] In the same volume and on the same page of the Cyclopedia above cited, the American rule as applicable to this subject is thus stated: “In the United States most of the State constitutions and declarations of rights expressly provide in substance that all criminal prosecutions shall be brought to trial in the county in which the crime shall have been committed. These provisions are strictly construed in favor of the accused, and with a recognition of the principles of the common law, and the Legislature cannot authorize a trial in any other county. ’ ’

This court has announced in no uncertain or doubtful terms the rule that the Legislature cannot under our statute arbitrarily place the jurisdiction of a criminal cause in a county other than the county in which the offense was committed, and it has been expressly ruled by this court that where the lawmaking power undertakes to indicate and enforce such laws it is the province of the court to declare them unconstitutional. and void. [State v. Smiley, 98 Mo. l. c. 607-608, and cases cited; State v. Hatch, 91 Mo. 568; State v. Anderson, 191 Mo. 134.]

The case of State v. Hatch, above cited, furnishes express authority upon the proposition now before us. The charge involved in that case was one of embezzlement and the provisions of section 1698-, Revised Statutes 1879, were invoked in aid of the proposition that the jurisdiction of said cause was in the circuit court of the city of St. Louis. This section provided: “Where there is a matter of doubt, in the opinion of the court, in which of two or more counties the offense was committed, the court of either in which the indictment was found shall have jurisdiction of the offense.” It was held in that case that there was no jurisdiction in the city of St. Louis and section 1698, Revised Statutes 1879, was declared void. It was urged in that case by the distinguished counsel, Attorney-General Boone, representing the State, citing many of the English cases which are embraced in eases- now cited by the State in the case at bar, that the embezzlement was in fact committed in St. Louis, and the jurisdiction was there irrespective of this statute. The opinion in the Hatch case does not fully state the facts, at least it is not very explicit upon the facts; so, making an independent examination, we have examined the original record with a view of ascertaining the facts in judgment in that case. We find them about as follows: Hatch was the general collecting agent for J. E. Hayner & Company of St. Louis, which firm was selling mowers and reapers throughout the State. He resided at Sedalia. By his contract he was to receive a salary and expenses. He was to report collections and make settlements in St. Louis; when he collected he should remit at once and his salary and expenses were to he paid or remitted to him. He collected the sum of six thousand dollars or more belonging to his firm in Pettis and other western counties in Missouri. After so doing he was in St. Louis, drew a hundred dollars of two hundred and eighty dollars then due on salary and expenses, over the protests of his employer, assuring them that he had made no collections not reported. As a fact he had prior to this denial collected over six thousand dollars and had appropriated it at different times in Sedalia and other places to his. own use in grain speculations. The indictment was in several different counts covering each collection and also in one omnibus count charging the entire sum. There was no question under the evidence but what the defendant had to account for his collections in St. Louis either by remittance and report, or in person. This was his contract and the foregoing as recited were substantially the facts of that case. Sherwood, J., speaking for tbe entire court, said: “The evidence shows very clearly and conclusively that the offense was not committed in the city of St. Louis.”

In State v. Fraker, 148 Mo. l. c. 160, this court, in discussing the correct rule as applicable to the question now under consideration, said: “When, as here, a crime consisting of a series of acts, part done in one county and part done in another, it is dispunishable at common law in either, unless enough be done in one county to amount to a completed and punishable criminal act,” citing 1 Bishop’s New C'r. Pine., sections 54, 55 and cases cited, “and this rule holds in the absence of statutory enactment to the contrary.”

Applying the rules as announced in the case last cited we are lead to inquire what element of the offense in the case at bar is wanting in order to constitute a complete offense in the city of St. Louis. The relationship of the parties, that of banker and cashier, existed in the city of St. Louis as well as in St. Charles county. The receipt of the money, as well as the conversion of it, was in the city of St. Louis, and not in St. Charles county. The conversion itself furnishes the most satisfactory evidence of the intent to convert and consummate the crime, and there is an entire absence of any fact tending to show that the employer consented to the conversion of this money which was received and converted in the city of St. Louis; hence, we have every element of this statutory crime present in the act committed by the defendant in the city of St. Louis.

In Michigan there is practically the same constitutional guarantee that we have in this State as to the place of trial of an individual charged with the commission of a criminal offense. In that State the lawmaking power enacted a statute which authorized a prosecution for embezzlement in certain cases in the county where the complainant’s principal place of business was located. A man by the name of Hill was arrested. on complaint of one Taylor on a warrant issued for embezzlement. Following this, Hill instituted his suit against Taylor for false imprisonment, and in the case of Hill v. Taylor, 50 Mich. 549, Judge Campbell, in discussing- the law applicable to the subject now in hand, said: “Hill prosecuted Taylor for false imprisonment in being concerned in an unlawful arrest, and obtained a judgment against him for damages, which is brought up on writ of error. The proceeding under which he claims to have been arrested was on a complaint made before a justice of the peace in Washtenaw, for an alleged embezzlement in Wayne county. This action was based on section 7605 of the Compiled Laws which authorizes embezzlement by various public agents, or by private agents under instructions or agreements as to the disposal of property, to be prosecuted in the county where the complainant’s principal place of business may be. Although there are some cases where by the rules of law that might be deemed the locus delicti, it cannot be seriously claimed that the prosecution can be had in a county where the crime was not actually or in contemplation of law perpetrated. The constitutional guaranty upon this subject is too plain to be controverted. [Swart v. Kimball, 43 Mich. 443.] And the warrant in this case was on its face invalid as. issued for an offense beyond the jurisdiction of the justice who issued it.”

In the case of Swart v. Kimball, cited by Judge Campbell in the foregoing quotation, the opinion was written by Judge Cooley, in which he held a statute possessing some of the features of the one treated of by Judge Campbell to be void as being violative of the Constitution.

Judge Black, in State v. Smiley, 98 Mo. l. c. 607, in discussing this question, thus stated the rule applicable to it. He said: “Now under the Constitution of 1875, the indictment for a felony must be found by a grand jury of the county where the offense was committed. It was so ruled, after mature deliberation, in Ex parte Slater, 72 Mo. 102, and that case has been followed in subsequent cases. [State v. McGraw, 87 Mo. 161, and State v. Briscoe, 80 Mo. 644.] It follows that the clause of section 1536, R. S. 1879, just quoted, is void, because in conflict with the Constitution of 1875, and it matters not that it might have been upheld under the Constitution of 1865. The indictment is worthless, for the Madison Circuit Court had no jurisdiction of the offense.”

We find in volume 7 Ency. Plead. & Prac., p. 412, the general rule, is stated thus: ‘ ‘ The defendant cannot be prosecuted for embezzlement in a county where the crime was not actually or in contemplation of law perpetrated. Where the entire transaction constituting the embezzlement occurred in one county only, the venue, as a matter of course, should be laid in that county. ’ ’

Our attention is directed by the Attorney-Gf-eneral to Bishop’s New Criminal Procedure, vol. 1, sec. 61, in which the author in the text says: “Embezzlement may, in various circumstances, be deemed committed in any one of several counties, at the election of the prosecuting power.” Upon an examination of Mr. Bishop upon that subject it will be noted that in the foot note the authorities were cited, upon which doubtless the learned author based the rule as heretofore announced. We find that the cases noted are English cases and some cases from the State of Texas. The Texas cases are not in point and furnish no authority for the application of the rule in the administration of the laws in this State, for the reason that in Texas there is a statute in reference to embezzlement similar to- our statute respecting the asportation of stolen property, which is that the offense of larceny may be charged in any county where the stolen property may be taken. Our attention is also directed to cases from Iowa, Washington, Texas, Massachusetts, Ohio and Illinois. It is sufficient to say as to the authorities that Iowa, Massachusetts and Washington have statutes more or less like the Texas statute as above referred to. In the Illinois case of Kossakowski v. People, 53 N. E. 115, the conclusion was announced before the question now under consideration was reached, hence there was no decision of that question. The Ohio case, 50 Ohio St. 644, seems to be in point and no statute is discussed.

We have indicated our views upon the propositions disclosed by the record before us. We frankly confess that the question is a very important one and by no means one in which the reason and logic are all on one side; but we have carefully analyzed the authorities upon the propositions presented and have indicated the result of our review of such authorities. With all of the elements of the offense present in the city of St. Louis and none of them present in St. Charles county, except the inferentially formed intent to convert the money to be obtained in St. Louis, we feel constrained to hold that the crime charged in this information, as shown by the proof disclosed in the record, was committed in the city of St. Louis and not in St. Charles county.

Entertaining the views to which we have herein given expression, it results in the conclusion that the defendant’s demurrer to the testimony should have been sustained. This conclusion having been reached renders unnecessary the discussion of other questions presented to our consideration by learned counsel for appellant.

The judgment in this cause is reversed and the cause remanded to the end that the trial court may dispose of it in accordance with the views herein expressed:

All concur.


author: BURGESS, J.

text:
    THE STATE v. EVERETT BRAGG, Appellant.
    Division Two,
    December 10, 1907.
    1. BILL OF EXCEPTIONS: Time for Filing. When the time for filing a bill of exceptions in a criminal case has expired, the court or judge is without authority to extend the time, and a bill filed within the time fixed by a void order cannot be considered on appeal.
    2. -: -: On First Day of Term. Where the time for filing the bill of exceptions was extended to the first day of the October term, and the court met on that day, and, without doing anything further, adjourned to the next day, and on that day extended the time to the January term, and at that term to the May term, a bill of exceptions approved and filed during the May term cannot be considered on appeal. Appellant should either have filed his bill before the first day of the October term, ar obtained an order before that day extending the time, and having done neither the court thereafter had no authority to extend the time within which he could file his bill.
    Appeal from Adair Circuit Court. — Hon. Nat. M. Shelton, Judge.
    Afrirmed.

      H. F. Millan for appellant.
    Defendant filed his hill of exceptions as soon as the stenographer would make his record. Both court and counsel intended the record of extensions of time to he regular, hut it seems the Attorney-General’s abstract of record shows it was missed one day. Notwithstanding this, if upon the record or if upon a review of the record proper, the case can be reversed, it ought to be done.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    Defendant, having failed to file the bill within the time required, can not have the errors, alleged to have occurred during the progress of the trial, reviewed by this court. State v. Eaton, 191 Mo. 151; State v. Thompson, 149 Mo. 439; State v. Britt, 117 Mo. 584. Even though the parties believed that the bill was filed in time, if the time had, in fact, expired, the bill will not be considered. State v. Outberth, 203 Mo. 579.
   BURGESS, J.

— On the 28th day of July, 1904, at the May adjourned term of the circuit court of Adair .county, the defendant was convicted of seducing one Ethel May Sewell under promise of marriage, and his punishment fixed at six months in the county jail and a fine of one thousand dollars, under an information filed by the prosecuting attorney of said county charging him with said offense. In due time defendant filed motions for a new trial and in arrest, which were overruled, and he appeals.

After several extensions by the court of the time given defendant within which to file his bill of exceptions, the time was again, on the first day of the May term, 1905> of said court, extended to the first day of the October term following. It appears from the record that the court met on said first day of the October term, and, without doing anything further, adjourned until the next day, upon which day, which was the second day of the term, the court extended the time for filing the bill of exceptions to the January term, 1906', and afterwards, at said January term, again extended the time until and during the following May term, during which term the bill of exceptions was filed by defendant and signed by the trial judge.

The State insists that, as defendant failed to file his bill of exceptions on or before the first day of the October term, 1905, of said court, or to have the time in which to do so extended by the court on said day, the court had no authority thereafter to extend the time, that its order so doing was null and void, and that defendant, for that reason, cannot have the errors alleged to have occurred during the trial reviewed on this appeal.

It has uniformly been held by this court that when the time for filing the bill of exceptions in a criminal case has expired, the court or judge is without authority to extend the time, and a bill of exceptions filed during the time fixed by a void order cannot be considered on appeal, [State v. Cutberth, 203 Mo. 579; State v. Paul, 203 Mo. 681,] In State v. Eaton, 191 Mo. 151, it is ruled that when a bill of exceptions does not appear to have been filed within the time allowed, nor an order made within that time by the court or judge extending the same, there is nothing before us for review except the record proper. In this case the court made an order extending the time for filing the bill to the first day of the October term, 1905, bnt the bill was not filed on that day, nor was the time for filing same extended npon that day. The consequence is that there is nothing before this court for review except the record proper. The information is in due form, the record in all material respects free from error, and the judgment is, therefore, affirmed.

All concur.