author: BURGESS, P. J.

text:
    THE STATE v. GORDON, Appellant.
    Division Two,
    May 22, 1906.
    1. JURISDICTION: Special Judge: Re-election: Nunc Pro Tunc Judgment: Signing Bill of Exceptions. A judge of another circuit who is called in to try a case does not lose jurisdiction of the case hy reason of the expiration of his term of office, where he is elected to succeed himself. And, therefore, such judge has authority to enter a mino pro tunc judgment and sentence as of the date of the verdict, though the general election intervened and he was re-elected between the date of the verdict and the date of the entry of the mine pro tunc judgment, and sentence; and he had authority, also, after his re-election, to grant an extension of time for the filing of the bill of exceptions, and to sign the bill.
    2. NUNC PRO TUNC ENTRY: After Case Appealed. The circuit court has authority, by nunc pro tunc entry, to correct its records as well after as before appeal taken.

      3. INFORMATION: Perjury. ■ An information charging perjury, which names the cause in which the alleged perjury was committed and the court in which the cause was being tried, which states the materiality of the issue so that the court can determine upon it, sets out the facts alleged to have been sworn to, negatives their truth, and properly assigns perjury on them— is sufficient.
    4. -: -: All Statements In One Count. Where all the false statements which defendant is charged with making relate to the same transaction, it is proper to set them all out in one count of the information.
    5. ’-: -: Two Informations: Motion to Quash: Presumption. Mere statements, in a motion to quash the information, that two informations were filed, both charging defendant with perjury, and that the one forming the basis of the prosecution was the first one filed, do not prove themselves. And in the absence of anything in the record to sustain this contention, the presumption will be indulged in favor of the correctness of the action of the trial court overruling the motion.
    6. CONTINUANCE: Motion for New Trial: Disqualifying Sheriff: Bill of Exceptions. Where the application for a continuance is not incorporated in the bill of exceptions, the assertion in the motion for new trial, that the court erred in overruling the application, does not preserve it for review. And for the same reason, the assignment that the court erred in overruling defendant’s motion to disqualify the sheriff and appoint another person to summon the special venire, can not be reviewed.
    7. PERJURY: Res Gestae. In a prosecution for perjury, the whole res gestae of the transaction, including declarations of the participants made at the time, may be adduced in evidence against the accused, to show that his testimony as to some of the particulars of the transaction was false.
    8. -: Instructions. Instructions in a perjury case, set out in, the statement, held to cover all the issues involved and to be very fair to defendant.
    9. INSTRUCTIONS: On All Law of Case. If defendant desires the court to give further instructions upon the issues in the case, he should request the court so to do, and call its attention to its failure so to do, at the time the instructions are given.
    10.JURISDICTION: Judge of Fifteenth Judicial Circuit: Criminal Case In Another Circuit. The judge of the Fifteenth Judicial Circuit has authority to try a criminal case in another circuit, although he has no criminal jurisdiction in his own circuit. [Following State v. McCarver, 194 Mo. 717.]

      11. PERJURY: Several Assignments: Proof of One: Instruction: Withdrawing Assignment. Where several assignments of perjury are laid, the charge will he sustained if any one of them be proved, if that by itself be sufficient to constitute an offense. And the fact that the court failed to instruct the jury that they should not take into consideration, in arriving at their verdict, a certain assignment of perjury against defendant, was in effect a withdrawal of that assignment from the consideration of the jury and an abandonment thereof by the State of which defendant has no right to complain.
    Appeal from St. Francois Circuit Court.—No». Samuel Davis, Special Judge.
    Affirmed.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The information, which was duly verified, is sufficient in form and substance. It is fully up to the requirements of the statute, and informations and indictment's similar to it have been approved. R. S. 1899, secs. 2033 and 2039; State v. Cave, 81 Mo. 450; State v. Huckeby, 87 Mo. 414. It was proper to name in one count all of the false statements with which defendant was charged, especially as all of said statements related to the one transaction. Cover v. Com. (Pa.), 8 Atl. 196; Elanscom v. State, 93 "Wis. 273. (2) This court cannot consider the question of the overruling of defendant’s application for a continuance, as said application is not contained in the bill of exceptions. State v. Gatlin, 170 Mo. 354. (3) No error was committed in sustaining the State’s motion for a special venire, a motion asking for same having been filed in time by the State. A special jury is provided for hy our statute, section 3791, and this court has construed the statute to give that right to the State, as well as to the defendant. State v. Faulkner, 175 Mo. 574; State v. Lehman, .175 Mo. 624. But even if error was committed, defendant cannot complain, as lie has not preserved the motion for a special venire in the bill of exceptions. A motion of that kind is not a part of the record proper, and the only way to make it a part is to have same embodied in the bill of exceptions. Every presumption will be indulged in support of the proceedings of a court of general jurisdiction; and defendant must show that error was committed. State v. Hunter, 171 Mo. 435. (4) The evidence introduced by the State detailing the conversations between the two Letts and McCarver, the threats of McCarver, etc., all made in the saloon in the absence of defendant, was introduced upon the theory that the same constituted a part of the res gestae, that the same was competent, in explanation of the conduct of McCarver, the conduct of the Letts, and that the same tended to corroborate or contradict the witnesses as to the presence or absence of a pistol in the hands of Leo Lett at said time. Heflin v. State, 88 Ga. 152; Maynard v. People, 135 111. 433; Martin v. State, 33 Tex. Crim. 319. (5) It has long been the settled law of Missouri that the appellant must object to the giving of the respondent’s instructions at the time they are given, and save his exceptions to the overruling of said objections. State v. Rambo, 95 Mo. 466; State v. Reed, 89 Mo. 168; State v. Day, 100 Mo. 242; State v. Craig, 79 Mo. App. 418; State v. Hayden, 61 Mo. App. 662; State v. McCarver, 194 Mo. 718. But even if this court cares to review the instructions, it will be seen that they correctly stated the law. State v. Blize, 111 Mo. 473; Wharton on Crim. Evidence, sec. 151; 2 Bishop’s New Crim. Proc., sec. 934. (6) Where there are several assignments of perjury in an indictment, proof of one is sufficient to sustain a conviction. State v. Blize, 111 Mo. 473; State v. Bordeaux, 93 N. C. 560; Wharton on Crim. Evidence, sec. 151; 2 Bishop’s New Crim. Proc., 934. (7) There was sufficient record to justify the trial court in making the order nunc pro tunc, sentencing the defendant. State v. Gartrell, 171 Mo. 504; Hayon v. Grocery Co., 88 Mo. App. 245; Belkin v. Rhodes, 76 Mo. 651; Witten v. Robinson, 31 Mo. App. 525; Sperling v. Stubblefield, 105 Mo. 489; State v. Holland, 160 Mo. 667.
   BURGESS, P. J.

The defendant was convicted in the circuit court of St. Francois county, and his punishment fixed at imprisonment in the penitentiary for the term of seven years, under an information filed by the prosecuting attorney of said county in the office of the clerk of said court, charging the defendant with the crime of perjury. In due time defendant filed motions for new trial and in arrest, which were overruled, and he appealed.

The alleged false testimony was given at the trial in the circuit court of St. Francois county in the case of the State v. O. P. McCarver, then pending and being tried in said court before Judge Samuel Davis of the Fifteenth Judicial Circuit.

At the time the information was filed under which defendant was convicted, Hon. Robert A. Anthony was sole judge of the judicial circuit of which St. Francois county formed a part; and at the November term, 1904, of said circuit court, the defendant applied for and was granted a change of the venue of said cause on.account of the alleged prejudice of the Hon. Robert A. Anthony, the regular judge of that circuit, and he called -in the Hon. Samuel Davis, judge of the Fifteenth Judicial Circuit, to try the case.

Defendant thereafter applied for a continuance on account of the absence of two witnesses, but his application was refused. A trial was then had, resulting in a conviction of defendant, as before stated.

The facts are substantially as follows: On November 16,1903, the grand jury of St. Francois county preferred an indictment against said O. P. McCarver, charging him with murder in the first degree, in shooting to death, with a pistol, one Harry Lett, in said county, on the 14th day of November, 1903. McCarver applied for and was granted a change of venue from Hon. Robert A. Anthony, the regular judge of said circuit, on account of the alleged prejudice of said Judge Anthony against him, and Hon. Samuel Davis, judge of the Fifteenth Judicial Circuit, was called in by Judge Anthony to try said case. A trial of said McCarver was had at the February term, 1904, of the circuit court of that county, before Hon. Samuel Davis and a jury. The defendant, Gordon, appeared then and there as a witness, was duly sworn by the deputy clerk of said court, and testified at said trial that he was in the city of'Farmington on the night of the 14th of November, 1903, between nine and ten o’clock; that he was standing in front of the saloon run by Bentley & Ryan, in said city; that he saw Leo Lett meet Harry Lett near said saloon; that he heard Harry Lett ask Leo if he got it, and heard Leo Lett reply, “Yes, and a damn good one, too.” That he then heard them arrange to go into said saloon together and assault said McCarver, while he, and others, were standing at the bar drinking. That he (defendant Gordon) saw Leo Lett and Harry Lett go into said saloon; then saw them through the front glass windows as they walked to the other end of the bar. That he saw Harry Lett standing with his elbow on the bar, and his right hand in his pocket, and saw Leo Lett try to pass or slip a pistol to Harry Lett, just before McCarver fired his pistol. That the curtains of the front windows of said saloon were down, so that he (defendant) could easily see, and did see, the men inside at the time of this difficulty. This testimony of defendant was proved by one of the jurors who tried the McCarver case, and also by the notes of Mr. James J. 0 ’Connor, at that time the officiál stenographer of that court, and the one who took down the testimony at said McCarver trial. Defendant’s said testimony was given in St. Francois county, Missouri. The State’s evidence further tended to show that, at the time of and just prior to the shooting of Lett by McCarver, no one was standing on the sidewalk in front of Bentley & Ryan’s saloon; and that the defendant, Gordon, was not then in Farmington, but attended a shooting match at the home of James Field, some twenty or twenty-two miles from said city. That defendant went to the Field farm on horseback, reached there about two o’clock in the afternoon, fed the horse which he was riding, and stayed there with a number of other men the rest of the afternoon; that the defendant stayed there to supper, and also stayed all night with Mr. Field, remaining there till after breakfast the nest (Sunday) morning. The date of this shooting match was proved by several persons—one man who made a payment on a note on that day, another who sold and delivered some- hogs on that day, a third who received some interest on that day, a fourth who was clerk of a certain lodge that met that night, and a fifth who had just married on the Monday preceding, and went on that day with his bride to visit her father. The State’s evidence also tended to prove that the curtains to the front windows of Bentley & Ryan’s saloon worked upward from below, and that said curtains were up so high at the time of and for some time prior to the shooting, that it was impossible for a man to stand out on the sidewalk in front of said saloon and see over them into said saloon. The State’s evidence further tended to show that Leo Lett did not try to pass a pistol to Harry Lett just before McCarver fired, nor at any other time, and that Leo Lett never had a pistol on that occasion. That McCarver shot and killed Harry Lett in St. Francois county, Missouri.

The defendant’s evidence tended to prove that he wás in Farmington on November 14,1903; that he kept a horse there in a stable. That he used this horse to ride around the country, came and left town rather irregularly; but when he was in town, he stopped at a hotel over a saloon, which was opposite the Bentley & Ryan saloon. One of the witnesses who testified to seeing defendant on that day was a daughter of O. P. McCarver, and another was Jesse Biggs, now of Ohio. Several of defendant’s witnesses admitted that the curtains to the front window of that saloon were drawn nearly to the top at the time of the shooting, and they gave it as their opinion that a man could not stand on the ground or on the sidewalk and see over the top of said curtains. There was also some evidence tending to prove the defendant’s good reputation for truth and veracity. Defendant did not testify.

At the close of the evidence on the part of the State the defendant asked an instruction in the nature of a demurrer to the evidence, which was refused, and defendant saved an exception.

The court, at the close of all the evidence, and over the objections and exceptions of defendant, instructed the jury as follows:

“1. The jury are instructed that if you believe from the evidence that at any time within three years before the 11th day of March, 1904, the defendant, George Gordon, in the county of St. Francois and State of Missouri, was sworn as a witness in a trial in the circuit court of St. Francois county, Missouri, in which the State of Missouri was plaintiff and O. P. McCarver was defendant, in which said defendant, O. P. McCarver, was then and there being tried under an indictment charging him with murder in the first degree for the killing of one Harry Lett on the 14th day of November, 1903, at said county of St. Francois, aforesaid, and that this defendant, George Gordon, then and there willfully, corruptly and falsely testified before the court and jury in substance and to the effect that he, the said George Gordon, together with one Jesse Biggs, was iu the city of Farmington on the 14th day of November, 1903, and in company with said Jesse Biggs was standing in front of Bentley & Ryan’s saloon, and that he, the said George Gordon, together with Jesse Biggs, stood and looked in through the front windows of said saloon just before the fatal shot was fired by which 0. P. McCarver killed Harry Lett, and saw Leo Lett then and there attempt to hand or slip a revolver to Harry Lett, then in that event said testimony was material and pertinent to the issues in said cause, and if the jury believe from the evidence that said testimony was false and that said defendant, George Gordon, did not at said time stand and look through the front window of said Bentley & Ryan’s saloon and did not then and there see Leo Lett attempt to hand or slip a revolver to Harry Lett, and that said defendant, George Gordon, willfully and corruptly, that is to say, knowingly and intentionally, testified falsely to said facts, you will find him guilty and assess his punishment at imprisonment in the penitentiary for a term of not less than seven years.
‘ ‘ 2.. The court instructs the jury that you ought not to convict the defendant unless you believe beyond a reasonable doubt that the falsity of the statements made upon which by the information filed by the prosecuting attorney, under these instructions the charge against him is based, has been to your satisfaction fully established, either by the testimony of more than one credible witness, and you are the sole judges of such credibility, or by that of one such witness corroborated by other evidence in the case, which convinces your minds of the truth of the testimony of such single witness to the fact, and of such falsity of the statements of the defendant, and not then unless you further find from the evidence beyond a reasonable doubt the existence of all the other elements of the offense, and of the facts necessary to authorize the conviction of the defendant, as defined in the instruction given you.
“3. The jury are the sole judges of the weight of the evidence and of the credibility of the witnesses, and in determining what weight they will give and what' credibility they will attach to the testimony of the witnesses, they should take into consideration the manner of the witness on the stand, his or her interest, if any, in the result of the trial, the probability or improbability of his or her statements, together with all the other facts and circumstances shown in the evidence, and if you believe from the evidence that any witness has willfully, that is intentionally, sworn falsely to any material fact in issue, you are at liberty to disregard the whole or any part of said witness’s testimony.
“4. The information is a mere formal charge against the defendant and is no evidence of his guilt of the charge therein contained, and no juror should permit himself to be in any way biased or prejudiced against the defendant on account of the filing of the information against him.
“5. The law presumes the innocence and not the guilt of the defendant, and this .presumption of innocence attends the defendant throughout the trial and entitles the defendant to an acquittal unless the evidence in the case, when taken as a whole, -satisfies you of defendant’s guilt beyond a reasonable doubt, as defined in these instructions.
6. Before you can convict the defendant you must be satisfied of his guilt beyond a reasonable doubt.- Such doubt, to authorize an acquittal on the ground of reasonable doubt, must be a substantial doubt of the defendant’s guilt with a view to all of the evidence in the ease, and not a mere possibility of defendant’s innocence.
“7. The previous good character of the defendant, if proved to your reasonable satisfaction, is a fact in the case which you ought to consider in passing upon the question of his guilt or innocence of this charge, for the law presumes that a man whose character is good is less likely to commit a crime than one whose character is not good. But if all of the evidence in the case, including that which has been given touching the previous good character of the defendant, shows him to be guilty of the charge, then his previous good character cannot justify or excuse the commission of the offense.”

There are two preliminary questions presented by this record which it becomes necessary to dispose of before proceeding further in the discussion of the case: First, as to whether there was a judgment such as from which an appeal lies; second, as to whether a valid bill of exceptions was ever filed in the case.

With respect to the first proposition, it appears from the record that on the 24th day of November, 1904, the jury returned a verdict finding the defendant, Gordon, guilty of perjury as charged, and assessed his punishment at seven years in the penitentiary, but it does not appear from the record that judgment was rendered upon the verdict at the time, as required by section 2648, Eevised Statutes 1899, nor sentence passed upon the defendant, as required by section 2658 of said Eevised Statutes. But, thereafter, on the 21st day of February, 1906, at an adjourned term of the regular November term, 1905, of said circuit court of St. Francois county, Judge Davis, upon motion of the prosecuting attorney, with the consent of the presiding judge of said court, the Hon. Charles A. Killian, in the presence of and after due notice to the defendant, took the bench and caused to be entered upon the records of said court a nunc pro tunc entry of judgment and sentence of defendant as of November 25, 1904. The terms of office of both Judge Davis and Judge Anthony expired on the first Monday in January, 1905, but under the statute (sec. 8847, E. S. 1899), all officers elected or'appointed by the authority of the laws of this State hold their offices until their successors are elected or appointed, commissioned and qualified. Judge Davis was re-elected and succeeded himself, while Judge Killian succeeded Judge Anthony in that circuit. If the jurisdiction of Judge Davis over the case terminated with the expiration of the term of his office, on the first Monday in January, 1905, notwithstanding he was his own successor, he was without authority to make the said nunc fro tunc entry of judgment and to pass sentence upon defendant at that time, and there was no final judgment in this case from which an appeal would lie. Upon the other hand, if Judge Davis, after having heen called in to try the case, proceeded to do so and did in fact try it, he acquired exclusive jurisdiction thereof (sec. 2597, R. S. 1899), and the nunc fro tunc judgment is a final and valid judgment from which an appeal lies, unless his connection with and jurisdiction of the case terminated with the expiration of his term of office, as before stated. It may be conceded that if Judge Davis had not been re-elected at the regular election in November, 1904, he would have had no authority whatever to enter the nunc fro tunc judgment and to pass sentence upon defendant, as it was only in his capacity of judge of the circuit court of the Fifteenth Judicial Circuit that he had such authority; but as he continued, without intermission, to be judge of that circuit, and his present or succeeding term of office as judge of said circuit, for which he had been duly elected, commissioned and qualified, commenced immediately upon the expiration of the term during which he presided at the trial of said case, there was, therefore, no vacancy in said office, and we are of opinion that he retained jurisdiction of the case, and had power and authority to render said nunc fro tunc judgment and to pass sentence upon the defendant. This is' certainly the practical view of the situation, and does not in any way impinge upon the rights of the defendant.

Notwithstanding the case was pending in this court and the trial court had lost jurisdiction thereof at the time of said nunc fro tunc proceedings, still the trial court had not lost jurisdiction of its records, which it had authority to correct as well after as before the appeal, and make them conform to the truth as to what had occurred, or supply an omission in the records. [DeKalb County v. Hixon, 44 Mo. 341, and authorities cited; Jones v. St. Joseph Fire & M. Ins. Co., 55 Mo. 342; Gamble v. Daugherty, 71 Mo. 599.]

It appears from the record that at the time the motions for new trial and in arrest were overruled, during the November term, 1904, of said court, the defendant, by entry of record, was given until February 16, 1905, to file his bill of exceptions; that on February 8, 1905, by an order entered of record by direction of Judge Davis, filed February 9, 1905, defendant was granted an extension of time until, and including, March 16,1905, in which to file a bill of exceptions, and again, on the 6th day of March, 1905, the time in which to file said bill of exceptions was extended to, and including, the 15th day of April, 1905; said bill was signed by Judge Davis, and filed with the clerk of said circuit court on the 12th day of said month. It thus appears that of the several orders made by Judge Davis regarding the time within which the defendant should file his bill of exceptions, only one of these orders was made during the term of his office which expired on the first Monday in January, 1905, and all subsequent orders made by Judge Davis extending the time for filing said bill of exceptions were without authority, and the bill of no effect, unless for the reasons stated in the first paragraph of this opinion, he still retained jurisdiction of this ease, which we have already held he did. It is true that it is provided by section 731, Revised1 Statutes 1899, that “in any case where the judge who heard the cause shall go out of office before signing the bill of exceptions, such bill, if agreed to be true by the parties to the action, or their attorneys, or shown to the judge to be .correct, shall be signed by the succeeding or acting judge of the court where the case was heard;” but that section does not apply here, because Judge Davis did not go out of office, within the meaning of that section, but continued in office, and under such circumstances he alone had authority to sign the bill. If this be not true, then there is no valid bill of exceptions in this case.

In the motion in arrest of judgment the point is made that the information is insufficient in that, as contended, it does not state facts sufficient to constitute an offense against the laws of Missouri. This assertion is clearly without merit. The information is in due form, and properly verified. It names the cause in which the alleged perjury was committed, and the court in which the cause was being tried; states the materiality of the issue so that the court could determine upon it; sets out the facts alleged to have been sworn to, negatives their truth, and properly assigns perjury on them; so that the information is in all respects sufficient. [Sec. 2039, R. S. 1899; State v. Cave, 81 Mo. 450; State v. Huckeby, 87 Mo. 414.]

It was proper to set forth in the same count in the information all of the false statements with which defendant was charged, as they all related to the same transaction. [Cover v. Com. (Pa.), 8 Atl. 196; Hanscom v. State, 93 Wis. 273.]

Defendant moved to quash the information upon the ground that two informations were filed against him, both charging him with perjury, and that the one forming the basis of this prosecution was the first one filed. But there is nothing in the record which tends to sustain this contention, and the mere statement in the motion falls far short of so doing. Under such circumstances the presumption must be indulged in favor of the correctness of the ruling of the court overruling the motion.

It is also asserted in the motion for new trial that the court erred in overruling defendant’s application for a continuance; but the application is not incorporated in the bill of exceptions, and, therefore, is not before us for review. [State v. Gatlin, 170 Mo. 354.]

The action of the court in ordering a special venire, on motion of the State, was in accordance with section 3791, Revised Statutes 1899, as well as the rulings of this court in State v. Faulkner, 175 Mo. 546, and State v. Lehman, 175 Mo. 619; hut even if error was committed, which we do not concede, defendant cannot complain, as the motion for a special venire is not embraced in the bill of exceptions, which it should be, in order to its review by this court.

The further assertion is made in the motion for new trial that the court committed error in overruling defendant’s motion to disqualify the sheriff and to appoint another person in his stead to summon the special venire; but the motion for a special venire is not incorporated in the bill of exceptions, and, for the reason given in the preceding paragraph, is not before us for review.

Another point made by defendant is that the court, over defendant’s objection, admitted improper, illegal, incompetent and irrelevant testimony on the part of the State; but it is not suggested or intimated what particular evidence was erroneously admitted, nor are we able to discover after an examination of the record. If the objection has reference to the evidence of what occurred in the saloon between the Letts and McCarver at the time of the killing of Harry Lett by McCarver, and we presume it has, such evidence was properly admitted as part of the res gestae. Heflin v. State, 88 Ga. 151, was a prosecution for perjury, and it was held in that case that the whole res gestae of a transaction, including declarations of the participants made at the time, may be adduced in evidence against the accused, to show that his testimony as to some of the particulars of the transaction was false. So in Martin v. State, 33 Tex. Crim. Rep. 317, defendant was charged with perjury before the grand jury, concerning the theft of property by two other parties, and it was held that the declaration of these other parties, confessing the theft and stating what they had done with the stolen property, though made in the absence of the defendant, was properly admitted as tending to prove the materiality and falsity of his statements.

The evidence referred to was properly admitted in this case because it tended to prove that Leo Lett had no pistol in his hands at the time of the -difficulty, while the testimony of the defendant was to the effect that he had at the time ,a pistol in his hands which he attempted to hand or slip to Harry Lett.

At the close of the evidence upon the part of the State the defendant asked an instruction in the nature of a demurrer to the evidence, which was refused, but no exception was taken at the time to the action of the court in refusing said instruction.

The only objection to the instructions given was upon the ground that said instructions did not properly declare “all the law in writing to the jury necessary for them to consider in arriving at their verdict;” but this objection does not seem to be well grounded. The instructions covered every issue involved in the case, and were very fair to the defendant. Nothing more could be hoped for or expected on his part. Besides, the court was not requested by defendant to further instruct upon the issues in the case; nor was the court’s attention called to its failure or omission to properly instruct at the time, if such were the fact. [State v. Cantlin, 118 Mo. 100, and subsequent cases.]

The point raised by the defendant in his plea to the jurisdiction of the Hon. Samuel Davis, judge of the Fifteenth Judicial Circuit, to try this case because he had no jurisdiction of criminal cases in said circuit, was expressly ruled adversely to this contention in the recent case of State v. McCarver, 194 Mo. 717.

While the point was not made at the time the instructions were given, and is not, therefore, before us for consideration, it is made in the motion for new trial and was argued orally on the hearing of the case in this court, that is to say, that “the court erred in failing to instruct the jury in writing that they should not take into consideration, in arriving at their verdict, the assignment of perjury against defendant wherein defendant swore that he overheard a conversation between Leo and Harry Lett before they entered the saloon of Bentley & Ryan on November 14, 1904.” There are several assignments of perjury in the information, each predicated upon material matters different from the other assignments, but it was not necessary to a conviction of defendant that the State should prove all or any more than one of the charges. Proof of either one of them, beyond a reasonable doubt, was sufficient. In State v. Blize, 111 Mo. l. c. 473, it is expressly held that, “where several distinct assignments of perjury are laid, the indictment will be sustained if any one of them be proved, if that by itself be sufficient to constitute an offense.” [Wharton on Criminal Evidence, see. 131; Bishop’s New Criminal Procedure, sec. 934.] The fact that the court failed to instruct the jury that they should not take into consideration, in arriving at their verdict, the assignment of perjury against defendant with respect to which it is alleged that defendant falsely testified that he overheard a conversation between Leo and Harry Lett before they entered the saloon of Bentley & Ryan on November 14, 1904, was in effect the withdrawal of that assignment from the consideration of the jury and the abandonment thereof by the State, of which defendant had no right to complain.

The evidence was somewhat conflicting, but its weight was for the consideration of the jury who found the defendant guilty as charged. The verdict was approved by the trial court, and there being nothing disclosed by the record which would justify interference by this court, the judgment is affirmed.

All concur.


source: Caselaw Access Project

author: FOX, J.

license: Public Domain

text:
    THE STATE v. SHOUR, Appellant.
    Division Two,
    May 22, 1906.
    1.EMBEZZLEMENT: By Secretary of Building and Loan Association: At Different Dates: One Conversion. Where defendant, as secretary of a building and loan association, was charged with embezzlement of one hundred dollars of the funds belonging to the association, it was not necessary that the evidence show that he embezzled the entire amount on the particular date specified in the information, but the charge was sustained by proof of the receipt by him, at different dates, of the amount alleged to have been embezzled, and one conversion of the whole.
    2. -: -: Secs. 1374 and 1912, R. S. 1899: Distinction. There is no contradiction or repugnancy between sections 1374 and 1912, Revised Statutes 1899. Their provisions are leveled against an essentially different class of wrongs committed by officers of a corporation or association. The former section is designed simply to regulate the conduct of the use and management of the funds belonging to the association, and does not embrace the element of a criminal intent. Under the latter section, a fraudulent intent to convert the funds belonging to the association is an essential element of the offense therein denounced. And an information charging embezzlement of the funds of a building and loan association by its secretary, is properly predicated upon section 1912.
    3. -: -: By Another With Defendant’s Consent: Instruction: Evidence. Where the evidence showed that but two persons had access to the funds of a building and loan association —defendant, who was its secretary, and his private clerk—the court properly instructed the jury that they should find defendant guilty of they believed that he, or another with his consent, fraudulently converted the money of the association to his own use, or to such other person’s use, etc. And this instruction simply stated the converse of another instruction given for defendant, which told the jury that they could not convict defendant if they found that some person other than defendant took the money without defendant’s consent.
    4. -: -: Instruction. An instruction, numbered 2, set out in the statement, held to properly state the law as to embezzlement of the funds of a building and loan association by the secretary of such association.

      5. -: -: Information: Verdict. Where the information contained but one count, and properly charged the offense of embezzlement of the funds of a building and loan association by its secretary, a verdict was proper which found the defendant “guilty as charged in the information.”
    6. EVIDENCE: Of Attorney in the Case. No error was committed in permitting an attorney for the prosecution to testify that a certain book had been in his possession and had been mislaid or lost and could not be found after diligent search, the purpose of such testimony being merely to lay a foundation for the introduction of secondary evidence.
    7. VENUE: How Proved: Evidence. It is not necessary that the venue of a crime be proved by direct and positive evidence. It is sufficient if it can be reasonably inferred from the facts and circumstances proved. And where, in the prosecution of the secretary of a building and loan association for embezzleing the funds of the association, the evidence showed that defendant resided in the county where the information alleged the crime to have been committed, that the business of the association was transacted in that county, and that various payments of money made to defendant for which he failed to account, were paid to him in that county, the jury were warranted in finding that the offense was committed in such county.
    8. EMBEZZLEMENT: By Secretary of Building and Loan Association: Sufficiency of Evidence. Evidence held sufficient to support the verdict finding defendant—the secretary of a building and loan association—guilty of embezzling funds belonging to such association.
    Appeal from Livingston Circuit Court.—Hon. J. W. Alexander, Judge.
    Affirmed.

      L. A. Chapman and Scott J. Miller for appellant.
    (1) Defendant was charged with taking a specific amount upon a specific day from an incorporated company, being charged under the general embezzlement act. It should not have been permissible to offer evidence of smaller amounts for any other reason than to characterize the taking of the specific amount set forth in the information. (2) Defendant, by the information, was charged with being a secretary of a building and loan association; he could not be prosecuted under the special statute of embezzlement, but must be prosecuted under the special statute controlling building and loan associations, which provides ample punishment. Sec 1374, R. S. 1899. (3) Instruction No. 2 is specifically condemned in the case of State v. Harmon, 106 Mo. 637. (4) The verdict does not respond to the charge in the indictment. (5) The court erred in permitting Davis’s testimony, he being an attorney in the case in connection with the prosecuting witness. The court should have instructed on all grades of crime, and instructions should have been given permitting the jury to find defendant guilty of a misdemeanor under the law. Sec. 1374, R. S. 1899. (6) There is no venue proved.

      Herbert 8. Hadley, Attorney-General, and Rush C. Lake, Assistant Attorney-General, for the state; B. B. GUI & Son, and J. M. Davis & 8ons o'f counsel.
    (1) This prosecution being for embezzlement and defendant being in the continuous receipt of money belonging to the corporation, of which he was an officer, the State was entitled to show all items of defalcation occurring during the time covered by the Statute of Limitations and should not have been confined to the date and amounts set forth in the information. State v. Pratt, 98 Mo. 491; State v. Noland, 111 Mo. 501; State v. Wise, 186 Mo. 48; State v. Wissing, 187 Mo. 96. (2) Section 1374, Revised Statutes 1899, does not repeal by implication section 1912, Revised Statutes 1899, and does not provide a penalty for an officer of a corporation who, with a fraudulent intent, converts to his own use the funds of the corporation, but only provides a penalty against one who shall “use or dispose of,” etc., without a fraudulent intent. Each section provides a punishment for a different offense. State v. Clarkson, 59 Mo. 152; State v. Noland, 111 Mo. 501. Section 1371 and section 1912 can be read together without contradiction or repugnancy, and when this can be done, they should be read together and effect given to both. State ex rel. v. Spencer, 161 Mo. 51. (3) Defendant having asked his instruction 7, by which the jury were told that if some person, other than defendant, took the money of the association without his knowledge and consent, they should find the defendant not guilty, the State was then entitled to the converse of this proposition, i. e., that if another took it with his knowledge and consent and with the necessary fraudulent intention on the part of defendant, they should find him guilty. State v. Rutherford, 152 Mo. 121. (1) Instruction 2, given at the request of the State, is an exact counterpart of instruction 2 in State v. Lipscomb, 160 Mo. 133. (5) There was but one count in the information. It charged the defendant with embezzlement. The verdict of the jury found the deféndant guilty as charged in the information and assessed his punishment. This was sufficient. State v. Ray, 53 Mo: 315; State v. Noland, 111 Mo. 173; State v. Cook, 58 Mo. 515; State v. Walker, 21 Mo. App. 680.
   FOX, J.

This cause is here upon appeal by the defendant from a judgment of conviction in the Livingston Circuit Court at its May term, 1905, upon an information filed by the prosecuting attorney charging the defendant with the embezzlement of money belonging to the Farmer’s Loan and Building Association, a corporation incorporated under the laws of the State of Missouri in 1887, and doing business in Chillicothe, Livingston county, Missouri, at the time of the trial. This prosecution and judgment is predicated upon the following information by the prosecuting attorney; omitting formal parts, it is as follows:

“Comes now Frank S. Miller, prosecuting attorney within and for the county of Livingston, State of Missouri, and informs the court on his official oath that A. P. Shour, on or about the 29th day of December, 1903, at the said county of Livingston, State of Missouri, being then and there an officer, to-wit, secretary of the Farmer’s Loan and Building Association, a corporation duly incorporated, organized and having an office in the city of Chillicothe,' Missouri, and doing business under and by virtue of the laws of the State of Missouri, the said A. P. Shour not being then and there a person under the age of sixteen years, did then and there by virtue of such office as secretary aforesaid, have, receive and take into possession and under his care a certain sum of money, to-wit, one hundred dollars lawful money of the United States of the value of one hundred dollars, which said money and property then and there belonged to and was the property and money of the Farmer’s Loan and Building Association, and the said A. P. Shour, the said money and property, did then and there unlawfully, fraudulently and feloniously embezzle and convert to his own use without the assent of the said Farmers’ Loan and Building Association, the owner of the said money and property aforesaid, and the said A. P. Shour, the money and property aforesaid, in the manner and by the means aforesaid, did unlawfully, fraudulently and feloniously steal, take and carry away, against the peace and dignity of the State. ’ ’

The testimony upon the trial on the part of the State developed substantially about this state of facts: That it was the duty of the secretary, made so by the constitution of the association, to receive the monthly dues of the stockholders on their shares of stock and all other money paid to the association and pay the same over to the treasurer of the association. It had, however, been the custom of the association, through its board of directors, for a long time prior and at the time of the filing of the information in this case, to require the secretary to deposit the money collected by him from all sources in the bank with which the association kept its bank account to the credit of the Farmers’ Loan and Building Association. When the money of the association was deposited with the bank it could only be paid out by order of the board of directors by a warrant drawn on the treasurer, signed by the president of the board and attested by the secretary. Under this method no officer of the association except the secretary received, collected or handled the money, belonging to the company, prior to its being deposited in the bank. The defendant had in the office for a number of years, and at the time he was charged with embezzlement, a lady who acted as his private clerk. This clerk had authority from the defendant to sign his name to receipts for money on the stockholders ’ pass books for monthly dues paid by them to the secretary; also to endorse checks made payable to the order of the defendant as secretary. This clerk assisted the defendant in keeping the books of the association and in making out monthly reports to the board of directors. These reports were made monthly and purported to contain a statement of all moneys collected and paid out during the current month. . The clerk also assisted in making out the semiannual sworn statement required by the law ,to be made to the State Supervisor of Building and Loan Associations.

The board furnished the secretary an office and paid him an annual salary of $250. There was in the office of the secretary a large safe belonging to the association. This safe had a combination lock and on the inside was a drawer with a lock. The defendant, alone, knew the combination and carried the key to the inside drawer. In this safe the books and papers of the association were kept. The method of receiving money from stockholders for monthly dues and from other sources was practically as follows: When a stockholder brought in his pass book to pay his dues, either the defendant or his clerk would receive the money and write in the pass book the amount paid opposite the month or months paid for and opposite this credit the name of the secretary. If the stockholder did not have his book and desired to pay his monthly dues the clerk or the defendant would give a receipt to the party paying for the amount paid. The money thus received from day to day was supposed to be put in the inside drawer of the safe by the one who received it, if the safe was unlocked. In the evening of each day, if there had been any considerable amount of money paid in, it was supposed to be taken to the bank and deposited to the credit of the association. If the money received during the day was not charged against the secretary on the cash book for any reason, then a slip was supposed to be made stating the amount paid, by whom, on what account, and date. If the amount' evidenced by these slips was not entered on the cash book during the day, then the clerk, if the safe was unlocked, would put the slips in the small drawer in the safe and they would remain there until the amounts were charged to the secretary bn the cash book when they were destroyed. If one of these slips was lost or destroyed before the amount was charged to the secretary on the book of first entry, the cash book, then the association received no credit for that amount, nor was the secretary charged with the money. And the only evidence that this particular amount had been paid to the secretary or his clerk was the stockholders’ pass book, who had paid the money. The defendant made the monthly statements to the board of directors. This was done by getting the amount on deposit in the bank on the evening of the day the report was to be made, taking the amounts received and paid out as entered on the cash book up to the date the report was to be made and the money in the safe and the amounts evidenced by any slips in the drawer, if these amounts had not already been charged to the secretary on the cash book. The secretary credited himself for the money paid out in Ms report, and the difference between the amount of Money paid out and the amount received would be the amount the secretary was supposed to account to the association for the current month. These monthly reports were signed by the secretary and read by him to the board of directors at the regular monthly meetings. Some few months before the defendant was arrested, the board appointed a special committee to go over the books and accounts, of the secretary. This committee reported back to the board about the 14th day of December, 1903, and showed a large discrepancy in the accounts of defendant with association and showed his books many hundred dollars out of balance. The defendant, upon being confronted with the report of this committee, claimed to the board of directors that it was an error in the auditmg coMmittee, claiming that the auditmg committee did not understand his books; that the report was not correct and if given time by the board he would explain the matter to the satisfaction of the board. The board gave him time, but he failed to make any explanation. When his attention was again called to the matter by the board, he excused himself by claimmg to be sick and stated that he would not be satisfied until an expert was sent by the State Building and Loan Supervisor to go over the books. The board of directors caused this to be done, and Mr. L. U. Crawford went over the books and accounts and pass books of the stockholders and reported a shortage in the secretary’s accounts of $9,113.15 between January, 1899, and January 20, 1904, of which $6,268.93 was during the period of time beginning on the 1st day of July, 1901, and ends on the 20th day of January, 1904, when defendant ceased to be the secretary. The transaction known in the evidence as the W. B. Leach matter occurred about two weeks after the report of the auditing committee, December 29, 1903. At this date Mr. Leach surrendered his shares of stock and took up two notes he owed the association. In this transaction the defendant failed to charge himself or account for $100 of the money, being the principal of one of the notes paid by Leach, and which he received from Mr. Leach.

Under the by-laws of the association, it was the duty of the defendant, as secretary, at each monthly meeting of the board of directors to make to the board a report, in writing, showing receipts and expenditures, and when notes had been paid to so state in his report, giving their number and name of payer. At the next meeting of the board, after the Leach transaction, defendant was present at the meeting of the board of directors in person and made and read the report of the secretary of the board. This meeting was held five days after the note was paid, i. e., on January 4, 1904. In that report defendant reported that Leach had paid one of his notes, the one the amount of which he accounted for, but all reference to the note of $100 was omitted from, that report. Defendant testified that he received this $100, but that it was paid to him by Leach in the .office of the association, defendant’s office, in Chillicothe, and that, while he had received it, he had not accounted for the same to the association. The cash showed that defendant was first charged with the $100, but that it had afterwards been erased and not included in the footings of the cash book. These entries in the cash book were not made by the defendant but by his private secretary or clerk.

The pass books of numerous stockholders were in evidence showing the defendant’s receipts, in his own handwriting, for money paid him, varying from $1 up. These various amounts were shown to have been paid to him within three years prior to the 3rd day of June, 1904. The evidence tended to show that these various items had not been accounted for by the secretary to the association. The witness, DeWitt, resided at Humphrey, Missouri. He had, in letters addressed to defendant at Chillicothe, in September and October, 1903, remitted to defendant, as secretary, dues to the association for J. M. Stringer, a stockholder in the association, two checks, each for $32.70. These, the evidence showed, were received and cashed at Chillicothe, bnt defendant had not accounted to the association therefor. Dr. Henderson, the president of the association, had paid defendant, in Chillicothe, Missouri, in person, a check for $70 for dues from one Prank Missman, a stockholder. This money defendant testified was paid to him and that he had not accounted to the association therefor. The evidence showed the receipt of the money in Chillicothe, the cashing of the check there, and his failure then to account for or pay over the same to the association.

The books and the reports made by the secretary were offered in evidence by the State and showed many erasures and interlineations. The defendant was an expert book-keeper, was thoroughly familiar with the books of the association and with every detail of its business, and had had many years experience in keeping books of account and public records.

Defendant was tried on an amended information, the original being filed June 3, 1904, the amended one on September 26,1904, which is herein set forth. The testimony for the State covered a period of three years —between the 1st day of July, 1901, and the 20th day of January, 1904, when defendant’s connection with the association ceased. The evidence' tended to show that the defendant, between these dates, had collected money amounting to several thousand dollars belonging to the corporation and had failed to account for it as secretary of this association.

The testimony on the part of the defendant tended to show that the private clerk or secretary, Miss Weston, had access to the funds of the building and loan asr sociation, as well as the , defendant; however, Miss Weston testified that she did not convert or take any part of the funds of the association and that she accounted for and turned over to defendant all that she received. The defendant testified in his own behalf, but his testimony fails to make a satisfactory explanation of the discrepancies in the books which were directly under his control and supervision, and his testimony in substance amounts to a denial of the conversion or taking of any of the money of the association. He simply states that he turned it over to the bank.

At the close of the evidence the court fully instructed the jury upon every phase of this case to which the testimony was applicable. It is not essential that we here reproduce all the instructions given in the cause, but mil only insert those that are challenged and assigned as error in the brief of counsel, which embrace only instructions 1 and 2 given for the State, which are as follows:

“1. The court instructs the jury that if they believe and find from the evidence beyond a reasonable doubt that the Farmers ’ Loan and Building Association was, prior to June 3,1904, an incorporated association doing business in the State of Missouri, and that the defendant was its secretary; that there came into his possession or under his care and control, by virtue of his office as such secretary, money belonging to the said association, and that at any time within three years prior to June 3, 1904, in the county of Livingston, State of Missouri, the said defendant, while over the age of sixteen years, did then and there, by virtue of his office as said secretary of said association, have, receive and take into his possession or under his care and control, money belonging to the said Farmers’ Loan and Building Association, and that the defendant, or another with his knowledge and consent, did then and there fraudulently convert to his own or such other person’s use, thirty dollars, or more, of the said money belonging to the said Farmers’ Loan and Building Association, which came into his care and under his control by virtue of his being the secretary of said Farmers’ Loan and Building Association, with the fraudulent intention then and there on the part of the defendant to convert the said money to his own or such other person’s use without the assent of the said Farmer’st Loan and Building Association, you should find the defendant guilty of embezzlement, as he stands charged in the information, and assess his punishment at imprisonment in the penitentiary for a term of not less than two or more than five years.
2. The court instructs the jury that it is not necessary in this case, in order to find the defendant guilty of embezzlement of thirty dollars or more, for .the State to prove that the amount of thirty dollars was taken at the same time or on the same day. Therefore, if the jury believe from the evidence that the defendant formed the design to embezzle and convert money of the said Farmers’ Loan and Building Association and that, in the pursuance of such formed design, he did, within three years next before the filing of the information, fraudulently embezzle and convert to his own use money belonging to the said Farmers’ Loan and Building Association, to the amount of thirty dollars or more, then that is sufficient.”

The court submitted the cause upon the instructions and evidence and the jury returned a verdict of guilty, assessing the defendant’s punishment at imprisonment in the penitentiary for a term of two years. Motions for new trial and in arrest of judgment were duly filed and by the court overruled, and judgment in accordance with the verdict was entered of record by the court. From this judgment the defendant in proper time and due form prosecuted his appeal to this court and the record is now before us for consideration.

OPINION.

The record in this cause presents numerous complaints of error on the part of the trial court in its disposition of this case. We will give the assignments of error in the order indicated by the brief of counsel such attention and consideration as their importance merits and demands.

I. It is insisted by appellant that he is charged in the information with embezzlement of a specific sum of money upon a certain day from an incorporated company; hénce the court committed error in permitting the State to show all the transactions of the defendant as secretary of the loan association and the receipt of different smaller amounts than that charged at various times during the period of three years prior to the filing of the information.

The rule of law as applicable to this proposition is no longer an open question in this State; it is clearly and correctly stated in the case of State v. Pratt, 98 Mo. l. c. 491, in which it was held that “where the offense of embezzlement is committed by a trusted servant, agent, clerk, etc., and where, as here, the abstraction occurred daily or whenever cupidity prompts, it is an impossible thing to describe the identical money taken or the precise date upon which it was taken; and it was this impossibility which occasioned the enactment of section 1817, supra [now sec. 2531, R. S. 1899], which was borrowed from an Einglish statute, and for a similar reason, section 1821, Revised Statutes 1879 [now sec. 2535, R. S. 1899] was passed.” The law as announced in that case has met the approval of t jis court in the recent cases of State v. Wise, 186 Mo. 42; State v. Wissing, 187 Mo. 96. The testimony in the Wise case tended to prove the receipt by defendant of money at different dates, which amount aggregated the sum charged to have been embezzled in the information. It was expressly ruled in that case that the defendant, who was the secretary of a benevolent organization, notwithstanding he had received the amounts of money at different dates during his term of office, was in default for the whole sum, and that the substantive charge of embezzlement was supported by proof of tbe receipt at different dates of the amount he was charged to have embezzled and one conversion of the whole. In the Wissing case it was said by this court that “where there is but one count in an information, the charge being that defendant within three years next preceding the filing of the information embezzled a certain sum of money of the Crocker-Wheeler Company, a corporation, etc., the charge is sustained by proving the embezzlement by him of any such sum or portion thereof, as set forth in the instructions, within the time limited by statute.” It follows from the law as announced in these cases that there was no error in the admission of the testimony complained of by the appellant in his first contention.

II. It is earnestly urged by counsel for appellant that if the defendant was guilty of any offense it was a misdemeanor as provided by section 1374, Revised Statutes 1899, and that that section provides the only punishment for the crime of which defendant is charged in the information.

Section 1374 may be found under article 10 of the revision of 1899, entitled “Mutual Saving Fund, Building and Loan Associations.” It provides: “Any officer, director, trustee, attorney, agent or servant of any association, heretofore or hereafter to be incorporated, who shall use or dispose of any part of the moneys, property, assets or funds of such association, or assign, transfer, cancel, deliver up or acknowledge satisfaction of any bond, mortgage or other written instrument belonging to such association, unless duly authorized, or otherwise than in the regular and legitimate business of the corporation, or who shall be guilty of any fraud in the performance of his duties, shall be liable civilly to the corporation, and also to any other party injured, to the extent of the damage thereby caused, and shall also be deemed guilty of a misdemeanor.”

The information and judgment in this cause is predicated upon section 1912, Revised Statutes 1899, which provides that “if any agent, clerk, apprentice, servant or collector of any private person, or of any copartnership, except persons so employed under the age of sixteen years, or if any officer, agent, clerk, servant or collector of any incorporated company, or any person employed in any such capacity, shall embezzle or convert to his own use, or shall take, make way with or secrete, with intent to embezzle or convert to his own use, without the assent of the master or employer, any money, goods, rights in action, or valuable security or effects whatever, belonging to any other person, which shall have come into his possession or under his care by virtue of such employment or office, he shall, upon conviction, be punished in the manner prescribed by law for stealing property of the kind or the value of the article so embezzled, taken or secreted.”

Upon this proposition, will say that we are unable to give our assent to the contention of the appellant that section 1374 defines the only offense and provides the only punishment for the embezzlement of funds by an officer of a building and loan association. A careful analysis of the provisions of the two sections, 1374 and 1912, makes it manifest that they are leveled at separate and distinct classes of criminal wrongs committed by an officer of such association. It is apparent that section 1374 is simply designed to regulate the conduct of the officers in the use and management of the funds belonging to the association; in other words, that the funds belonging to the association shall be used or disposed of only for the purposes contemplated by the constitution and by-laws of the association, and if the officer undertakes to divert the money from its proper channel and uses or disposes of it in any manner not duly authorized, or otherwise than in the regular and legitimate business of the corporation or association, he shall be deemed guilty of a misdemeanor. It is clear that the essential elements of the offenses created by sections 1912 and 1374 are entirely different.

Under section 1912 one of the essential elements of the offense is the fraudulent intent, and it is necessary to show a conversion of the fund belonging to the corporation and at the time of such conversion the fraudulent or unlawful intention of the officer in charge of such fund to convert the same to his own use. Under section 1374 no such criminal intention is an essential element in the commission of the offense provided by that section. Under section 1374 the officer may use or dispose of some of the money of the association and yet there may be an entire absence of that unlawful and fraudulent or criminal intent necessary to constitute embe'zzlement under the provisions of section 1912. Section 1374 by no means undertakes to punish an officer or trustee or agent of the building and loan association for the commission of the crime of embezzlement, but simply undertakes to regulate the conduct of the officers in respect- to the assets of the association, and to prevent what has been too much of a common practice of officers using a trust fund, not with that criminal intent of permanently converting it to their own use, but simply to meet some' immediate emergency, and with a full intention, at the time of using it, of replacing it.

Counsel for appellant, in support of the contention so earnestly urged upon this proposition, direct our attention to the case of State v. Bittinger, 55 Mo. 596. That case is clearly distinguishable from the contention as urged by counsel for appellant in respect to section 1374. The prosecution in that case originated under an act of the General Assembly of the State of Missouri entitled, “An Act to Establish an Insane Asylum in the Northwest or Southwest portion of the State, to be called the Northwest or Southwest Insane Asylum,” approved March, 1872. It must be noted that that case had special reference to the establishment of an insane asylum in a certain portion of the State, and it undertook in the same act by section 25 to protect all donations and appropriations for such asylum by providing a remedy against any person who refused after demand to pay over or deliver to the commissioners or managers of such asylum any money, property or thing belonging thereto, then makes it a misdemeanor for any person to convert to his own use any of the funds or property belonging to such asylum. It must not be overlooked that this legislation was especially directed to a particular asylum, and having created the asylum and having pointed out the particular rights to which it was entitled, and specially providing remedies for the enforcement of such rights, it is manifest that the court in that case was clearly right in holding that, for the enforcement and protection of the rights provided by the statute, in which remedies were specially provided, those remedies designated by the statute must be pursued to the exclusion of all others. Now, on the other hand, take section 1374, which counsel for appellant contend is the only provision upon which this prosecution can rest, and it is manifest that such section is not directed to any special or particular building and loan association in this State, but is found under article 10, which is a general provision for the incorporation of Mutual Saving Fund, Building and Loan Associations, and is applicable to each and every association in the various counties in this State which may be incorporated under such article. It has no special application (similar to the law establishing the asylum referred to in the Bittinger case), to any particular association but was simply a provision made, as heretofore stated, for the regulation of the conduct of the officers in the management of the assets of such associations.

It is fundamental that, if two statutes can be read together without contradiction, repugnancy, absurdity or unreasonableness, it should be so done and effect given to both. [State ex rel. v. Spencer, 164 Mo. l. c. 54, and cases cited; State v. Green, 87 Mo. l. c. 587; State v. Noland, 111 Mo. l. c. 484.]

There is no contradiction, repugnancy, absurdity, nor is there any unreasonableness in section 1912 and section 1374 standing together. Their provisions are leveled against essentially a different class of wrongs committed by officers of a corporation or an association ; hence, it must be held that a prosecution for embezzlement against a secretary of a building and loan association can be predicated upon the provisions of section 1912.

III. It is next insisted that the trial court erroneously declared the law by its instruction No. 1 given for the State. This instruction is reproduced in full in the statement of this cause and the challenge to its correctness is directed solely to that part of the.instruction which says, “and that defendant, or another with his knowledge and consent, did then and there fraudulently convert to his own or such other person’s use, thirty dollars, or more, of the said money belonging to the said Farmers’Loan and Building Association, which came into his care and under his control by virtue of his being the secretary of said Farmers’ Loan and Building Association, with the fraudulent intention then and there on the part of the defendant to convert the said money to his own or such other person’s use without the assent of the said Farmers ’ Loan and Building Association. ’ ’ There was no error in giving this instruction. ' It was evidently intended to simply state the converse of the proposition announced in defendant’s instruction No. 7, where the jury were told that “if they found from the evidence that some person other than the defendant took the money of the association charged to the defendant, without his knowledge and consent, then you cannot find the defendant guilty of embezzling such money or funds.”

The testimony in this case indicates that but two persons had access to the funds of this association, one the defendant, the other his private clerk. It certainly would be a humiliating confession upon our criminal jurisprudence if the defendant in this case permitted his clerk or some other person, with his knowledge and consent, to convert this money to such other person’s use, with the fraudulent intention' on the part of the defendant that it should be converted and that the association should be deprived thereof, that he could not be convicted of the offense of embezzlement. It was for the purpose of meeting just such cases that the lawmakers of this State enacted section 2364, Revised Statutes 1899, which provides: “Every person who shall be a principal in the second degree in the commission of any felony, or who shall be an accessory to any murder or other felony before the fact, shall, upon conviction, be adjudged guilty of the offense in the same degree, and may be charged, tried, convicted and punished in the same manner, as a principal in the first degree. ’ ’

In the case of Mills v. State, 53 Neb. l. c. 271, it was expressly ruled by the Supreme Court of Nebraska, upon a charge of embezzlement, “that in proof of these charges it might be shown that the money was also converted to the use of another party, would not be repugnant. It might be to the use or benefit of the person holding the office, and also to the benefit of another. In this there would be no inconsistency. It would be but one manner of the commission of the offense.” To the same effect is Eggleston v. State, 129 Ala. 80, where it was said by that court that “if, after acquiring the possession of the money as the agent of its owner for the purpose of changing it or having it changed, he conceived the fraudulent intent to convert it to his own use or to the use of another, or he fraudulently secreted it with intent to convert it to his own use or to the use of another, he was guilty of embezzlement.” In State v. Rowe, 104 Iowa 323, the Supreme Court of that State ruled that a statute which made provisions similar to-section 2364, Revised Statutes 1899, in effect provides that one who aids or abets another to commit embezzlement is himself guilty of embezzlement and shall be punished accordingly.

The defendant in this case was the secretary of the building and loan association, and by virtue of his office had charge and supervision of the books and all funds paid to said association, and if some other person converted any portion of the money or property of such association, and the defendant then and there consented to such unlawful and fraudulent conversion, we are unable to conceive under what principle of law he can escape being guilty of embezzlement. He had charge of the funds, and if he consented or authorized anyone else to unlawfully convert such funds, the act of the other person was simply nothing more nor less than his act; therefore, it follows that the ruling upon this contention must be adverse to the appellant.

IV. Complaint is made of the action of the court in giving instruction No. 3 for the State. While counsel directs his complaint to instruction No. 3, it is apparent that he meant to challenge the correctness of instruction No. 2 for the State, for instruction No. 3 is simply one upon the question of reasonable doubt and is in the usually approved form. In support of the challenge to the law as declared in instruction No. 2 by the court in this case, we are cited to the case of State v. Harmon, 106 Mo. 635. It is true in that case that a similar instruction to instruction No. 2 was given in the ease at bar, however, an examination of that case will demonstrate that the court did not condemn such instruction for the reason that it was not applicable to a case of embezzlement, but it was expressly ruled in that case that all of the instructions upon the offense of embezzlement were erroneous, not for the reason, however, that they were not applicable to that offense, but for the simple reason that all of the counts in the indictment in the Harmon case plainly charged the offense of larceny alone, and therefore the instructions authorizing the conviction of the defendant of embezzlement were erroneous. The instruction in this case complained of properly declares the law and is in harmony with the announcement of the rules of law applicable to the offense of embezzlement in State v. Wise and State v. Wissing, supra.

V. There is no merit in the error complained of by appellant that the verdict of the jury does not respond to the charge in the information. The information contained but one count and charged the offense of embezzlement in such form as has frequently met the approval of this court, and the jury responding to this charge say: “We, the jury, find the defendant guilty as charged in the information and assess his punishment at two years in the state penitentiary.” The defendant was charged with embezzlement and the jury found him guilty as charged, and this was manifestly a sufficient response to the charge in the information.

VI. It is contended that the court erred in permitting A. B. Davis to testify, he being an attorney in the case, in connection with the prosecuting witness. We know of no rule of law which would preclude Mr. Davis from testifying in the case. The record discloses that his testimony was only to the fact that one of the record books of the corporation, which contained the original constitution, had been in his possession and had been mislaid or lost and after diligent search could not be found. His testimony was evidently for the purpose of laying the foundation for the introduction of secondary evidence. It had no connection with fixing the crime charged upon defendant, and so far as the disclosures of the record indicate there was no objection to his testimony, hence this complaint is without any merit whatever.

VII. It is insisted by appellant that the court should have instructed the jury to find the defendant guilty of a misdemeanor under section 1374. It is sufficient to say as to this insistence that we have fully disposed of that question under another assignment in this case.

VIII. It is next argued by appellant that the testimony fails to show any venue in this cause. It is sufficient to say upon this contention that the evidence introduced by the State was entirely sufficient to authorize the jury in finding that the offense charged was committed in Livingston county. In State v. Sanders, 106 Mo. l. c. 195, it was insisted, as it is here, that the evidence failed to prove that the offense charged was committed in Ozark county. The court, in passing upon that question, said: “It is true no witness testified directly ,to the fact that the assault was made in that county, but ‘itis not necessary that the venue be proved by direct and positive evidence. It is sufficient if it can be reasonably inferred from the facts and circumstances proven. ’ [State v. Hill, 96 Mo. 358; State v. Burns, 48 Mo. 438; State v. West, 69 Mo. 404.] ” To the same effect is the case of State v. Daugherty, 106 Mo. l. c. 185, where it was expressly ruled that “proof of the venue as laid in the indictment, like any other material allegation, need not be established by express and positive testimony, but it is sufficient if the circumstances in evidence tend to the conclusion, in a manner satisfactory to the jury, that the place of the crime corresponds with that set forth in the indictment.” [State v. McGinniss, 74 Mo. 245, and cases cited; Commonwealth v. Costley, 118 Mass. 1; Beavers v. State, 58 Ind. 530.]

The testimony in this cause shows that the defendant resided in Livingston county; that the business of the association was transacted in that county and that various payments of money were made to him for which he failed to account, were paid to him in said county; that the testimony in this cause was sufficient to warrant the jury in finding that the offense was committed in Livingston county, we have no doubt.

IX. Defendant complains of error on the part of the trial court in the refusal of instructions which were requested, numbered from one to five. It can serve no good purpose to reproduce the instructions refused and we see no necessity of burdening this opinion with, the insertion of them. We have carefully read all of the instructions given in this cause, as well as those which were refused, and it is sufficient to say that all of the subjects embraced in the refused instructions were fairly and fully covered by those given by the court. The instructions given by the court in this cause fully, and in a manner extremely favorable to the defendant, presented the law upon every phase of this case to which the testimony was applicable; hence, the appellant has no ground of complaint upon the subject of the presentation of the law involved in this proceeding, and there was no error in the refusal of the instructions requested by the defendant.

X. There are numerous complaints disclosed by the record of error on the part of the trial court in the admission of testimony. We have read in detail all of the testimony developed at the trial of this cause and It is entirely unnecessary to reproduce the questions and answers objected to by the defendant, and it is sufficient to say upon that contention that all the testimony offered to which objections were interposed was entirely competent and tended to prove some of the issues presented in the cause.

XI. Finally, it is urged that the testimony was insufficient to support the finding and verdict of the jury. Upon that question it is only necessary to say that if the facts as disclosed by the record now before us is insufficient to support this verdict, then we confess that the State had just as well abandon all prosecutions of officers who are charged with conversion of trust funds. The testimony introduced by the State covered the entire transactions of this defendant as secretary of this loan association during the statutory period of three years before the filing of the information. An expert accountant of the state department, connected with the supervision of building and loan associations, made an examination of the boohs of the defendant and found that the boohs were out of balance and that he was indebted to the association several thousand dollars. Another examination by competent accountants was made with a similar result. In addition to this, the testimony of numerous witnesses was introduced, showing the payment of money to the defendant which was unaccounted for upon the boohs or in the banh account, and the testimony as offered by the defendant fails to mahe a satisfactory explanation of this deficit, and when all the evidence disclosed by the record is fully considered, we see no escape from the conclusion that the finding and verdict of the jury is fully supported by the testimony introduced at the trial.

We have thus given expression to our views upon the vital questions presented by this record, which results in the conclusion that there is no reversible error, and the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


author: GANTT, J.

text:
    Ex parte LECK ALLEN.
    Division Two,
    May 22, 1906.
    1, JURISDICTION: Trial for Crime Committed After Sentence. The petitioner was convicted and sentenced to five years’ imprisonment in the penitentiary for robbery, and remanded to the county jail to be removed to the penitentiary at the end of the term, and while so confined and before the adjournment of the court, he attempted by force to release the prisoners confined in the jail. Thereupon and during said term the prosecuting attorney filed an information charging him with the last offense, to which he pleaded guilty and was sentenced to a further imprisonment of five years to begin “when his former sentence ends.” Held, that the petitioner was a convict and the court had jurisdiction to try him for the second offense, under section 2383, Revised Statutes 1899, providing that “if any convict shall commit any crime in the penitentiary, or in any county in this State while under sentence, the court having jurisdiction of criminal offenses in such county shall have jurisdiction of such offense, and such convict may be charged, tried, and convicted in like manner as other persons; and in case of conviction, the sentence of such convict shall not commence to run until the expiration of the sentence under which he may be held.”
    2. CONCURRENT SENTENCES: Three-fourths Rule. Where petitioner was convicted of robbery and sentenced for a period of five years to the penitentiary, and while confined in jail awaiting the adjournment of the term and transmission to the penitentiary, committed another offense and at the same term was sentenced for another period of five years to commence “when his former sentence ends,” the two sentences do not run concurrently, but the second begins to run at the expiration of the first, whether or not he is entitled to the benefit of the three-fourths rule under that sentence.
    Habeas Corpus.
    Writ denied.

      Lewis C. Gdbbert for petitioner.
    The second sentence was void, The criminal court had no jurisdiction of the person of petitioner at a sueeeeding term from that when sentence passed, as petitioner was in contemplation of law in a custody different from that of the criminal court. There is no authority in law for the trial of a prisoner under sentence, until after such sentence has expired. It is against the law and prohibited by the law. State v. Buck, 120 Mo. 479. Ex parte Meyers, 44 Mo. 282, has been upheld by this court in numerous decisions (96 Mo. 436; 120 Mo. 479). Conceding, for the purpose of argument, that the second sentence of petitioner became and was in full force and effect, yet, this second sentence began to run on the 11th day of July, 1902, and it is conceded by respondent that defendant is entitled to the three-fourths rule, which equals one year and three months reduction of time; then this second sentence expired April 11, 1906. Under our law there is no authority for making this second sentence commence at the expiration of the first sentence. Ex parte Meyers, 44 Mo. 282. Section 2374, Eevised Statutes 1899, provides for cumulative sentences only where convictions are obtained in both cases prior to the formal passing of sentence in either. As the facts in this case, as shown by the certified transcript of the record, show no such state of facts as to bring this ease within that section, the court derives no power from that section to make a second sentence commence at the expiration of. the first sentence. Sections 2067, 2068, 2069, 2072, E. S. 1899, provide certain punishment in each of said sections, and expressly provide that such punishment is to commence at the expiration of the original term of imprisonment. Section 2063 states that upon conviction the prisoner shall be punished by imprisonment in the penitentiary for a term not exceeding five years, but does not state that such sentence shall commence at the expiration of former sentence. The information upon which the second conviction of petitioner was imposed was drawn under said section 2063. The court, therefore, obtained no power from section 2063, under which petitioner was convicted of the second offense, to make the second sentence commence to run at the expiration of the first. It was the evident intention of the Legislature that punishment for this crime should not commence at the expiration of a former sentence, else it would not have thus provided in express terms in five other sections of the same article and remained silent as to such provision in this section.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for respondent.
    (1) Counsel for petitioner is in error when he insists that the second judgment and sentence are void. The criminal court of Buchanan county had jurisdiction over the person of the defendant, and also over the crime which he committed in the jail of that county. If any criticism could be made upon the action of the court, it would be that its action was erroneous, and for an erroneous judgment the proper remedy was by an appeal or writ of error. In one case, it was held that it was error for the trial court to proceed with the trial when the defendant was under conviction and sentence for another felony, but that case was entirely different from the case at bar. State v. Buck, 120 Mo. 479. In another case it was held that the court could not try and convict the defendant at a subsequent term for an offense which had been committed prior to the time of the first conviction of the defendant. Ex parte Meyers, 44 Mo. 282. (2) To settle this question and establish the fact that the court did have jurisdiction in a case like this, the General Assembly passed a statute which specially authorized the trial and conviction of one who has been previously convicted of a felony. He may be tried while he is a prisoner in the penitentiary, or before he has been conveyed to the penitentiary. R. S. 1899, sec. 2383. This section of the statute has been cited and construed by this court, and the ruling was that one under conviction could be prosecuted and tried for an offense committed after said first conviction. State v. Brown, 119 Mo. 534; Ex parte Branding, 47 Mo. 255; Ex parte Jackson, 96 Mo. 116. (3) Tbe three-fourths rule, referred to by petitioner in his brief, is a matter which this court cannot pass upon in a proceeding like this. Said statute gives the state officers the power to release and discharge the prisoner when his conduct has been good, at the expiration of three-fourths of the time for which he was sentenced. But the discretion in such a case is to be used by said officers, not by this court. R. S. 1899, sec. 8919. (4) If any error was committed by the trial court in sentencing the defendant, said sentence to begin on the 12th day of June, 1907, that error may be corrected by this court in this proceeding. It is, therefore, asked that this court, if it finds such error was committed by the circuit court, correct said error by directing that the petitioner’s second sentence shall begin at the expiration of his first sentence. Ex parte Kenney, 105 Mo. 535; Ex parte Jackson, 96 Mo. 116. Our statute specially provides that when a defendant is convicted and sentenced to the penitentiary for two offenses, the second sentence shall begin at the expiration of the first sentence. R. S. 1899, sec. 2374.
   GANTT, J.

The petitioner made his application at this term for a writ of Habeas Corpus, directed to the warden of the state penitentiary and prayed for an order releasing him from further confinement in said institution.

On the 14th day of June, 1902, the petitioner was lawfully sentenced by the criminal court of Buchanan county to the state penitentiary for a term of five years, from the 12th day of June, 1902, and was then remanded to the custody of the sheriff of Buchanan county to be by him conveyed to the penitentiary at the end of the said term of said court. While awaiting the adjournment of said court, the petitioner was confined in the common jail of said county, and on the 9th of July, 1902, by force, and by means of dynamite and powder, attempted to release and set at liberty the prisoners then in custody in said jail.

Thereupon on the 11th day of July, 1902, the prosecuting attorney of said county filed an information in said criminal court charging petitioner with the crime of attempting to release said prisoners, and petitioner was duly arraigned on said charge and pleaded guilty thereto and was sentenced to a “ term of five years in the penitentiary from the 12th day of June, 1907, when his former sentence ends.”

Thereupon prisoner was committed to the penitentiary by virtue of the two sentences, and having served three-fourths of the said first sentence for robbery and having been an exemplary prisoner is entitled to a discharge from the unexpired portion of said first term, and this being conceded he asserts he is entitled also to be discharged from his imprisonment altogether, because, he insists, his second conviction for attempting to break jail and release the prisoners therein was illegal and void because the criminal court had no jurisdiction to try him for said offense at that term, and, secondly, because if the judgment and sentence was not void for want of. jurisdiction, still he is entitled to his discharge because in law the said second sentence commenced to run on the day it was imposed and has been concurrent all the time with the first sentence and he is entitled to the benefits of the three-fourths rule as to this second sentence also and both sentences expired April 11,1906.

In his return, the warden concedes that petitioner has been a well-behaved prisoner and he is willing to give him the benefit of the three-fourths rule as to the first sentence, but is holding him under the second sentence.

I. Was the court without jurisdiction to try defendant for the second offense, committed after he had been tried and convicted of robbery and while he was awaiting the adjournment of the court at that term to be conveyed to the penitentiary? We have no hesitancy in holding it was not. It was a court of criminal jurisdiction and had jurisdiction to hear and determine the offense of which petitioner was convicted and over the person of petitioner. The contention of petitioner is based upon certain statutory provisions of our laws and decisions of this court, and the question is, has he properly construed the statutes and decisions of this court? We are cited by counsel for petitioner to the decision in State v. Buck, 120 Mo. 479, in support of his contention, but the facts of that case were these: The defendant had been indicted for two offenses, both of which occurred before he was tried on either. He had been convicted on one and sentenced to the penitentiary, and had appealed from said judgment and obtained a supersedeas. Pending his appeal and at a subsequent term, the court proceeded to put him on his trial for the other offense and thereupon he filed his motion to fore-go said trial until his sentence on the first trial had either expired or been set aside. The circuit court overruled this motion and he excepted and this court held that it was error to try him on the second indictment pending the former sentence then unexpired. That decision was based upon our statute and the decisions of this court in Ex parte Meyers, 44 Mo. 282, and State v. Connell, 49 Mo. 282. In Ex parte Meyers, 44 Mo. 281, this court said: “The prisoner was twice found guilty and sentenced on each finding at diffeient terms. This case does not come within the provisions of chapter 207, section 9, General Statutes 1865, which declares that when any person shall be convicted of two or more offenses, before sentence shall have been pronounced upon him for either offense, the imprisonment to which he shall be sentenced upon the second or other subsequent conviction shall commence at the termination of the term of imprisonment to which he shall he adjudged upon prior conviction. . . . The law certainly contemplates that after a prisoner is sentenced he will he immediately transferred to the custody of the penitentiary, and not be detained for future arraignment at subsequent terms. . . . Separate sentences can only be passed upon the prisoner in the cases and in the manner pointed out by the statute. ’ ’ It will be observed that in State v. Buck, 120 Mo. 479, the second trial pending the conviction and unexpired sentence on the first was held to be error, but it was not ruled that the circuit court had no jurisdiction. There is a marked distinction between error and an absolute want of jurisdiction. But aside from this it is clear that case is wholly dissimilar to this as to the facts. There the two indictments were both pending at one time and for crimes committed before trial on either indictment. Here the defendant was tried on the only indictment pending against him and was convicted and sentenced and he then committed the second offense for which he was tried and convicted. Section 2383, Revised Statutes 1899, provides, among other things, that “if any convict shall commit any crime in the penitentiary, or in any county of this State while under sentence, the court having jurisdiction of criminal offenses in such county shall have jurisdiction of such offense, and such convict may be charged, tried and convicted in like manner as other persons; and in case of conviction, the sentence of such convict shall not commence to run until the expiration of the sentence under which he may be held: Provided, that if such convict shall be sentenced to death, such sentence shall be executed without regard to the sentence under which said convict may be held in the penitentiary. ’ ’ The facts of this case bring it within the spirit and letter of this section. Here the defendant was a convict. He had been duly sentenced. Subsequently he had committed a crime in Buchanan county, a county of this State, while under such sentence, and thereupon the jurisdiction of the criminal court of Buchanan county attached to try him therefor and he was tried and convicted. A more explicit and full grant of jurisdiction applicable directly to the offense of the petitioner, can not be well conceived, and there can exist no doubt of the court’s jurisdiction, and hence the first ground upon which petitioner seeks a discharge is without foundation.

II. The second proposition is that, conceding the court had jurisdiction, still the sentence for the second offense must be held to have commenced on the day it was pronounced and both terms of imprisonment commenced and lapsed concurrently. This contention is in the face of the statute, section 2383, supra, which expressly provides that “the sentence of such convict shall not commence to run until .the expiration of the sentence under which he may be held. ’ ’ When the criminal court of Buchanan county came to sentence petitioner for this second offense committed while he was under sentence, it took notice of its own records of that term, that it had sentenced petitioner for five years from June 12, 1902, which sentence would expire June 12, 1907, and in obedience to the statute it conformed its second sentence to the expiration of that first sentence, but it added “when the former sentence ends.” If therefore the Governor or the prison authorities see fit to shorten the first sentence to three-fourths of the time, the second sentence by operation of the law and the sentence itself will commence when the first expires and the warden is properly holding petitioner by virtue of said second sentence.

The petition for discharge is denied and the petitioner is remanded to the custody of the warden to undergo his said second sentence or until he is otherwise discharged according to law.

Writ denied.

Burgess, P. J., and Fox. J., concur.