author: BROWN, P. J.

text:
    THE STATE v. DAVE CREELEY, Appellant.
    Division Two,
    January 6, 1914.
    1. RECEIVING STOLEN WATCH: Evidence That it was Stolen. Testimony by tbe owner that be placed bis. watcb under bis pillow about half-past seven o’clock a. m. and missed it about eight o’clock p. m. of tbe same day, but did not know anything about bow it was taken from bis premises, is sufficient evidence that tbe watcb bad been stolen from him to support a conviction of tbe crime of receiving stolen goods, knowing it to have been stolen. The statement that be did not know anything about bow it was removed from bis premises was equivalent to stating be did not authorize anyone to remove it or take it away, and if be bad testified that tbe watcb was stolen that would have been only tbe expression of an opinion.
    2. INSTRUCTION: Former Conviction: Based on Defendant’s Admission: Credibiity. Where tbe evidence of defendant’s former conviction of larceny consisted of his own voluntary testimony alone and was not produced by the State for the purpose of affecting his credibility as a witness, an instruction asked by the State telling the jury that “the evidence as to the prior conviction of defendant was admitted solely for the purpose of affecting his credibility as a witness, and not for the purpose of being considered by the jury on the question of his guilt or innocence as to the offense for which he is now on trial,” is erroneous, but it is not reversible error, because more favorable to the defendant than to the State, since it minimized and limited the effect of his admission that he had previously been convicted..
    3. -: Defendant’s Statements: Negatived by Proof. In this case the instruction referring to statements and admissions made by defendant, and telling the jury that “what defendant said against himself, if anything, the law presumes to be true, unless negatived by some other evidence in the cause,” does not refer to defendant’s testimony as a -witness in the cause, but to statements made by defendant out of court after the offense was committed and “proved by the State.”
    4. -: -: No Basis for Instruction. And the State proved a number of extrajudicial statements and admissions made by defendant which furnished a sufficient basis of fact for said instruction.
    5. -: -: Requiring Defendant to Testify. Nor did the words in said instruction “unless negatived by some other evidence in the case” force defendant to take the stand and deny the incriminating admissions made by him out of court and proven by the State. A statement made by a defendant against his interest may be negatived in many ways without requiring him to be sworn.
    6. -: For What Purpose Defendant’s Admission may be Considered: Comment on Evidence. Nor was such instruction an erroneous comment upon the evidence regarding the statements and admissions against interest made by defendant before the trial. When the State has proven that defendant, after the commission of a crime and before trial, made statements tending to show his guilty connection with the crime, the jury may be instructed that they may believe what he has said against himself and reject what he may have said tending to establish his . innocence. Such an instruction is undoubtedly a comment upon certain parts of the evidence, but it does not constitute reversible error, for the reason that, while courts are prohibited generally by statute from selecting certain parts of the evidence and telling the jury how they shall weigh it, there are certain classes of evidence which, by other statutes, are made presumptive proof of certain things. The true rule is that, when, certain, evidence is introduced which, under the statutes or common law as it now exists in this State, is entitled to less or more weight than ordinary evidence, it is not error for the court to instruct the jury how such evidence is to be weighed. Such instructions are the comment of the law, or the rule which the law has prescribed for determining the effect of such special classes of evidence, and form statutory exceptions to the general rule (which is itself prescribed by Sec. 5244, R. S. 1909), that courts are not in their instructions to single out and comment on evidence.
    7. -:--:--: Useless. But such an instruction is useless, and for that reason should not be given. The weight and effect of oral admissions made by defendant before the trial can safely be left to the jury, without being emphsized by a special instruction calling attention to them.
    8. CONTINUANCE: Withdrawal of Counsel. Motions for a new trial do not prove themselves, and where the only basis for appellant’s claim that his first lawyer withdrew from the case is an assertion to that effect in his motion for a new trial, it cannot be held that his said attorney did withdraw from the case, or that the court erred in not granting defendant a continuance on the ground of such alleged withdrawal.
    Appeal from St. Louis City Circuit Court. — Hon. W. M. Kinsey, Judge.
    Aeitrmed.

      Henderson & Henderson and W. Raleigh McCormick for appellant.
    (1) Defendant’s instruction in the nature of a •demurrer requested at the close of the State’s case, should have been given. There is no proof that the property mentioned in the information was stolen. State v. Smith, 37 Mo. 68; State v. Honig, 9' Mo. App. '298; State v. Honig, 78 Mo. 249; State v. Pink, 186 Mo. •50. There was no proof that defendant knew that it was stolen. State v. Smith, 37 Mo. 58; Regina v. Droge, 14 Cox C. C. 83; State v. Fink, 186 Mo. 50. (2) Instruction number 5 should not have been given because it was erroneous, (a) It erroneously declares that as a. matter of law statements proved by the State to have been made by the defendant adverse to his interest are presumed to be true if not negatived. State v. Hudspeth, 150' Mo. 12; State v. Hollingsworth, 156 Mo. 178. (b) It erroneously assumed that the defendant did make incriminating statements; whereas the only statements defendant made were that he would not talk, and the giving of wrong places of location of several of the articles. State v. Little, 67 Mo. 624. (3) The court erred in giving' instruction numbered 4, in that the court declared therein that the evidence in this case of the prior conviction of defendant was admitted solely for the purpose of affecting the credibility of the defendant as a witness. This was not the fact. This testimony of the prior conviction was adduced by defendant himself, as part of the res gestae and part of his defense. This instruction is not predicated upon fact; it was a comment on the evidence not required as a caution, and was highly prejudicial to defendant’s rights. State v. Barrington, 198 Mo. 126; Benjamin v. Railroad, 245 Mo. 615; Stetzler v. Railroad, 210 Mo. 712. (4) The court erred in refusing defendant’s motion for a continuance. Constitution of Missouri, art. 2, sec. 22; State v. Lewis, 74 Mo. 222.

      John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
    (1) The defendant in the motion for a new trial states that error was committed in the giving of court’s instruction numbered 5; that the same was a comment upon the evidence and discriminating between the weight to be given statements made by defendant and made by other persons, and for the. reason that it erroneously declares that as a matter of law, statements made by the defendant, adverse to his interest, are presumed to be.true; and that*said instruction was further erroneous in assuming that the defendant did make incriminating statements. This instruction is the usual instruction as to statements made by the defendant after the commission of an offense, and has been often approved by this court. State v. Howell, 117 Mo. 323; State v. Duestrow, 137 Mo. 67. (2) In the motion for a new trial, error is alleged concerning the counsel whom the defendant had employed, and who. was entirely familiar with the case, suddenly withdrawing as counsel as the case was called for trial; and that said counsel stated, in the presence of the jury, as his reason for said action, that the defendant would not state the truth in regard to the case. Further, that the defendant was compelled to go to trial with a counsel who was not acquainted with the case and had no time to prepare the same. The record does not disclose any such proceedings as alleged in this subdivision of the motion for a new trial. Matters not made a part of the bill of exceptions are not before this court for review. State v. Page, 212 Mo. 224; State v. Jeffries, 210' Mo. 234‘; State v. Field, 234 Mo. 615. (3) The evidence was ample and sufficient to sustain the verdict that was returned by the jury. The defendant had concealed and disposed of the property,, had taken another name, and had told various stories, all of which showed the knowledge that he was guilty in knowing that this was stolen property. Under these circumstances the courts have frequently held that they will not disturb the verdict of the jury. State v. Bass, 251 Mo. 107; State v. Concelia, 250 Mo. 411; State v. Grlahn, 97 Mo. 679; State v. Howell, 100 Mo. 659'.
   BROWN, P. J.

Defendant appeals from a judgment of the circuit court of St. Louis city, in which court he was convicted and adjudged to serve a term of two years in the penitentiary for the crime of receiving stolen goods.

He was charged with receiving a gold watch worth $150, and several other articles of jewelry, which had been stolen from one Henry W. Gildehaus, a resident of St. Louis. Mr. Gildehaus fully identified the property described in the information as belonging to him, but his explanation of how some of it passed out of his possession is vague.

The strongest testimony indicating that any of it was stolen relates to the gold watch. Mr. Gildehaus testified that he placed the watch beneath his pillow about half-past seven a. m. on March 20, 1912, and “missed it” about eight o’clock p. m. of the same day, but he did not know anything about how it was taken from his premises. The other articles found in defendant’s possession were missed by Mr. Gildehaus on the same day. He was not asked, and did not state, whether he gave anyone permission to take the watch from his home. In his household were his wife, two sons and four servants.

No witness gave any direct evidence of the larceny. So far as the original theft is concerned, the conviction rests solely on the evidence of the owner, Mr. Gildehaus, that he placed the watch under his pillow in his home and does not know -anything about how it was taken away from there. The next time he saw the watch it was at the office of the detectives who recovered it for him.

After the watch and other jewelry were missing' from the residence of Mr. Gildehaus, they were found in a small grip or handbag, left in Mrs. Herzog’s rooming house in St. Louis by two men named, respectively, Miller and Callahan.

Mrs. Herzog testified that two men rented a room from her on the afternoon of March 20,1912, and went away leaving the handbag- and a suitcase in their room. On March 26, 1912, defendant came to her rooming-house and told her his name was J. C. Jones, and asked her for the small handbag, which contained the jewelry. She gave the handbag to defendant after he had procured another man to identify him as “ J. C. Jones.”

Two or three days later defendant obtained from Mrs. Herzog the suitcase. On that trip, he showed her a letter, purporting to come from Chicago, thanking her for taking care of the grips and sending her two dollars to pay for the key to the room they had rented. The letter was not introduced in evidence. Miller and Callahan had paid their room rent in advance and did not owe Mrs. Herzog anything.

Defendant, testifying in his own behalf, stated that on or about March 6, 1912, he was placed in the St. Louis jail on a charge of larceny, of which he was afterward convicted. That while he was in jail Miller and Callahan were also arrested and placed in the same jail; that on March 26, 1912., defendant told Miller he was about to be released on bond, whereupon Miller requested him to go to Mrs. Herzog’s rooming house and get the small grip, or handbag, which he (Miller) had left there and take out some clothes and send them to him.

Defendant further testified that he was trying to carry out this request of Miller when be obtained the grips from Mrs. Herzog; that he did not know the small handbag contained jewelry until he opened it. Defendant further testified that when a police officer called he gave him the grips and aided the officer in securing the jewelry. He also stated that he could not remember showing Mrs. Herzog a letter purporting to come from Chicago thanking her for caring for the grips; that he told Mrs. Herzog his name was Jones because the newspapers had published an account of his arrest, and he feared she would not let him have the grips if he gave her his true name. He admitted that he told Mrs. Herzog that Miller and Callahan were friends of his, but further acknowledged that they were not in fact his friends. Defendant further admitted that he found in the small grip obtained from Mrs. Herzog’ the watch and other jewelry identified by Mr. Gildehaus, together with three revolvers, a flashlight and a kit of burglars’ tools, but he explained that he did not know what the searchlight and burglars’ tools were, and did not know that any of the property had been stolen when he received it. He also stated that he did not remember -telling officer O’Brien that he had sold the watch to a man who had gone to Oklahoma.

Mr. John T. May testified on behalf of defendant that he furnished the bond whereby defendant was released from jail on March 26, 1912; that while returning from the jail with defendant the latter stopped at Mrs. Herzog’s and procured the small handbag; containing the Gildehaus jewelry. When they reached May’s home defendant opened the handbag, saying: “I must take out some clothes and have them laundered.” That when defendant opened the grip, or handbag, and found the jewelry and other articles he seemed to be surprised, and remarked that he had gotten the wrong grip. On opening the grip defendant took out and handed to May a “half hose” containing the burglars ’ tools and three revolvers, remarking at the time, “I would not want it found at my house.” Defendant took out the jewelry and placed it in his pocket, saying at the time, “This belongs to those fellows, evidently. ’ ’

M. J. O’Brien, a detective of the police force of St. Louis, testified that on about April 6,1912, he went to the home of defendant’s father and called for the grip and suitcase that had been taken from Mrs. Herzog’s rooming house to the residence of Mr. May. At first, defendant said that he did not know anything about the grips; but after some conversation he took the officer into his father’s house and gave him the grip and handbag, saying, “Now, here’s the grips.” Defendant then told the officer that he did not care to talk about it further. Officer Dougherty testified that he saw defendant conversing with Callahan in jail on March 25, 1912.

On being asked where the burglars’ tools were defendant replied that he did not know anything about them; that “the grips were empty and did not contain anything that belonged to those men.”

After the defendant was arrested and taken to police headquarters he admitted that they ‘were left at the house of Mr. May, his bondsman. The officer found the burglars’ tools in May’s cistern, and the next morning he asked defendant about the watch and jewelry which he had taken from the small grip, or handbag. At first, defendant stated that he did not know anything about the jewelry. Later in the same conversation he told the officer that he had sold the watch to a man who had gone to Oklahoma. Subsequently he admitted that he had loaned the watch to one A. J. Dahl, and accompanied the officer to the residence of Mr. Dahl, where the watch was procured.

Defendant, according to officer O’Brien’s testimony, did an equal amount of prevaricating about the other articles of jewelry, but upon the urgent request of the officer he gathered up said jewelry and turned it over to the officer,

A. J. Dahl testified that he had known defendant six years; that defendant gave him the watch stating that it belonged to a particular friend of his, and that he (defendant) did not want to carry it that day as he was going out and might lose it.

For reversal defendant relies upon the alleged insufficiency of the evidence to prove that the watch and other jewelry were stolen from the owner, Mr. Gildehaus; and also complains of alleged errors- in the instructions to the jury.

I. Defendant’s first assignment challenges the sufficiency of the evidence to prove that the jewelry which he is charged with feloniously receiving was stolen from the owner, Mr. Gildehaus. This is more a question of fact than -of law. That there must he substantial evidence of the theft of property which defendant is charged with having received, cannot be disputed. Is that proof present .in this case? No witnesses saw the jewelry stolen. If the owner had testified that his watch was stolen that would only have been the expression of an opinion, because he did not see it stolen. He merely stated that he put the watch under his pillow and knew nothing about how it was taken away. His evidence would have been much stronger had he testified that he did not authorize anyone to take the watch away from where he placed it or dispose of it in any manner. However, we think his statement that he did not know anything about how it was removed from his house was equivalent to stating that he did not authorize anyone to remove it or take it away. If he had authorized anyone to take the watch, he would, necessarily, have possessed some knowledge of how it came to be removed; so that his undisputed evidence must be taken to mean that the watch was stolen from under his pillow.

If it were necessary to prove the crime of larceny by someone who actually saw the offense committed, we opine there would be few convictions for that crime.

The taking away of inanimate property without the knowledge of its owner from the place where the owner has left it in his own home, in the absence of countervailing evidence, raises the presumption that such property was asported by a thief.

The cases relied upon by defendant are entirely unlike the one at bar. The Smith case (37 Mo. l. c. 68) merely holds that to sustain a conviction of knowingly receiving stolen goods it must be proven that the goods had in fact been stolen. That is Undoubtedly true. The two tlonig cases (9 Mo. App. 296, and 78 Mo. 249) announce the rule that evidence of larceny committed by defendant is not sufficient to sustain a charge against him of receiving stolen goods; while the Fink case (186 Mo. 50) simply holds that a charge of receiving stolen goods is not sustained by -proof that the goods were embezzled. Defendant’s first assignment must be overruled.

II. Error is also assigned in the second clause of the State’s instruction numbered 4, which reads as follows:

“You are further instructed that the evidence in this case as to the prior conviction of defendant was admitted solely for the purpose of affecting the credibility of the defendant as a witness, and not for the purpose of being considered by the jury on the question of the guilt or innocence of the defendant as to the offense for which he is now on trial.”

This instruction is really erroneous. The evidence of defendant’s former conviction comes through his own voluntary statement as a witness and was not proven by the State for the purpose of affecting his credibility as a witness. We find, however, that this instruction was more favorable to the defendant than to the State. It limited and minimized the injurious effect of his admission that he had been convicted of larceny, and, therefore, did not operate to his prejudice in any respect. [State v. Burk, 234 Mo. 574, l. c. 579; State v. Hunter, 181 Mo. l. c. 337; and State v. Stewart, 90 Mo. 507.]

III. Defendant earnestly insists that the court erred in giving instruction numbered 5, which reads as follows :

“If you believe and find from the evidence that the defendant made any voluntary statement or statements in relation to the offense charged in the information after such offense is alleged to have been committed, you must consider such statement or statements all together, and in the light of the circumstances under which you may believe they were made. The defendant is entitled to what he said for himself, if true, and the State is entitled to the benefit of anything he may have said against himself in any statement or statements proved by the State. What the defendant said against himself, if anything, the law presumes to be true, unless negatived by some other evidence in the cause, because said against himself. What the defendant said for himself the jury are not bound to believe, because it was said in a statement or statements proved by the State, but the jury may believe or disbelieve it as it is shown to be true or false by the evidence in this cause; it is for the jury to consider, under all the facts and circumstances in evidence, how much of the whole statement or statements of the defendant proved by the State the jury, from the evidence in this case, deem worthy of belief. ’ ’

It is first contended that this. last-quoted instruction refers to defendant’s evidence as a witness in court, and for that reason is erroneous, but we find that this view is not tenable. A careful reading of said instruction demonstrates that it refers to statements alleged to have been made by the defendant and ‘ proved by the State. ’ ’

Defendant’s counsel contend that there were no extrajudicial statements or admissions made by the defendant tending to establish his guilt. This contention is likewise unsound. If the State’s evidence be true, the defendant told Mrs. Herzog that his name was Jones when he applied for the small grip. Three days later when he applied for the large grip he showed her a letter purporting to be from Chicago, and indicating that the owners of the grips were in Chicago, while he knew that they were then in the St. Louis jail. The evidence of Mrs. Herzog1, if true, proved statements by defendant against Ms interest, because it tended to establish the charge that he knew the property he was receiving had been stolen, and by giving Mrs. Herzog a fictitious name and informing her that the owners of the grips were in Chicago, he would leave no trail whereby the grips could be traced either to himself or to Miller and Callahan. Other statements were testified to by officer O’Brien which, if true, tended to prove that the defendant was trying to secrete the property in precisely the same way as a tMef would have done if he had stolen the jewelry or received it knowing that it was stolen. The defend- . ant tried to explain his conduct and statements consistent with an innocent purpose, but the jury did not believe him. There was an abundance of evidence upon which to base instruction numbered 5.

Defendant also insists that instruction numbered 5 forced him to take the stand and deny the incriminating admissions proven against him by the State, citing the cases of State v. Hudspeth, 150 Mo. 12; and State v. Hollingsworth, 156 Mo. 178.

The instructions given in the two cases last cited were quite different from the instructions now under consideration. The instructions in those cases told the jury that when statements made by a defendant were proven by the. State and not. denied “they are-taken as true. ’ ’

A statement made by a defendant against Ms interest may be negatived in many ways without requiring him to be sworn. The evidence of the State’s witnesses might be negatived by other witnesses who were present when the admissions or incriminating statements were alleged to have been made by defendant; by showing that defendant was not present at the time and place where it is claimed he made the statements attributed to him; or by impeachment of the State’s witnesses for want of reputation, or for lack of memory, etc.

IY. Instruction numbered 5 appears on its face to be a comment upon that part of the evidence regarding the statements or admissions made by the defendant before the trial, and, therefore, appears to violate section 5244, Revised Statutes 1900, which prohibits trial courts from commenting upon evidence, unless requested so to do by the prosecuting attorney and defendant.

Section 5244 has been in our statutes since March 21, 1835, and during all of that time it has.been regarded as an obnoxious practice for trial courts to single out some part of the evidence and tell the jury what weight should be given it. [State v. Dunn, 18 Mo. l. c. 424; State v. Hundley, 46 Mo. 414; State v. Sivils, 105 Mo. 533-4; State v. Smith, 53 Mo. l. c. 271; and State v. Rogers, 253 Mo. 399.]

On the other hand, it has been held by this court since 1850 that, when a defendant has, after the commission of a crime and before trial, made statements tending to show his guilty connection with such crime, and his statements are proven by the State, the jury may believe what he has said against himself and reject whatever he may have said tending to show his innocence. [Green v. State, 13 Mo. 392; State v. Wisdom, 119 Mo. 539; State v. Howell, 117 Mo. 307, l. c. 323; and State v. Merkel, 180 Mo. l. c. 321.] While the instructions in these cases are undoubtedly comments upon certain parts of the evidence, they do not constitute reversible error, for the reason that while courts are prohibited generally from selecting certain parts of evidence and telling the jury how they shall weigh same, there are certain classes of evidence which, by law, are presumed to prove certain things; and as to those particular classes of evidence it is not improper for the court to tell the jury what facts they prove, or tend to prove.

By section '5231, Bevised Statutes 1909, courts are required to instruct on the legal inference or presumption to be drawn from evidence of good character on the part of a defendant. This is nothing less than a direct comment on the evidence which defendant may have introduced touching' his good character. Thus we find one section of our statutes prohibiting comment by the courts, and another section commanding the court to comment upon a certain class of evidence.

By section 4585; Bevised Statutes 1909, proof that a bank failed is made prima-facie. evidence that the officers of such bank had knowledge that it was insolvent when they assented to the receipt of deposits by such bank. In such a case it is proper for the court to tell the jury that the failure of the bank makes out a prima-facie case of knowledge of its insolvency on the part of its officers, notwithstanding such an instruction is a direct comment on the evidence of the failure and greatly increases the force of such evidence. [State v. Sattley, 131 Mo. 464; and State v. Darrah, 152 Mo. 522.]

When a defendant testifies in his own behalf and the State proves that he has been convicted of some other crime, he is entitled to an instruction telling the jury that the evidence of his former conviction can only be considered by them as tending to discredit his testimony as a witness, and shall not be regarded as evidence of his guilt of the crime for which he is then on trial. [State v. Phillips, 233 Mo. 299; and State v. Jones, 249 Mo. 80.]

From what has been said we deduce the true rule to be that when evidence is introduced which, under either the statutes or common law as it now exists in Missouri, is entitled to less or more weight than ordinary evidence, it is not error for the court to instruct the jury how such evidence must be weighed. Such instructions are the comment of the law, or the rule which, the law has prescribed for determining the effect of such special classes of evidence, and form exceptions to the general rule that courts shall not in their instructions single out and comment upon evidence.

V. Under the oft-repeated rulings of this court there was no error in giving instruction numbered 5 ; but, speaking for myself, I think said instruction was useless, and, for that reason, should not 1136611 §lven- ^ would be a very ignorant jury, indeed, which would . not know that, if the defendant made a statement pointing directly to his guilt, such statement was the highest kind of evidence that what he said was true. Besides the uselessness of this instruction, I think there is some probability that witnesses may not remember, or fail to correctly repeat oral statements; and for those reasons evidence of oral admissions should not be emphasized by a special instruction calling attention to them. The weight and correctness of such evidence can safely be left entirely with the triers of fact.

VI. A further assignment is that the court erred in failing to grant the defendant a continuance when his first lawyer withdrew from the case. There is no evidence before us of the withdrawal of any attorney, except the bare allegation of that fact in the motion for new trial, and it is not necessary to quote authorities to sustain the proposition that motions for new trial do not prove themselves.

Finding no reversible error the judgment of the trial court is affirmed.

Walker, J.} concurs; Faris, J concurs in result and in all of the opinion except paragraph five to which he dissents.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    THE STATE v. AUGUSTUS T. MOREAUX, Appellant.
    Division Two,
    January 6, 1914.
    1. INFORMATION: Embezzlement: In Language of Statute. Sec. 4550, R. S. 1909, fully sets forth the essential elements of the offense of embezzlement, and an information or indictment for an offense purely statutory is sufficient if the language of the statute is substantially followed.
    2. EMBEZZLEMENT: Agent: Treasurer: Conversion. An information charging that defendant by virtue of his “employment and office as agent, clerk, collector and servant” of a certain corporation did receive and take into his possession certain money belonging to said corporation and convert it to his own use, is sustained by evidence showing he received a certain amount of money as treasurer of said corporation, deposited it in a bank, and then received a cashier’s check for a part of it payable to himself, which he converted to his own use, although he testified he received the check in that form and afterwards converted it into money for the purpose of going to another city to buy supplies for his company, for if that was true he was in that regard acting in the capacity of agent.
    3. --: Testimony by Police that Defendant had Formerly Given False Name. Testimony by police officers that five years prior to the crime defendant had stated to them his name was “Edward J. Morrow,” whereas in fact it was Augustus T. Moreaux, was unauthorized, and its purpose is not discernible unless it was an indirect attempt to show that defendant had been arrested by them at that time; but as the inquiry was not permitted to proceed further and the statement was denied by defendant, and all the material testimony points to his guilt, it was not sufficiently prejudicial to justify a reversal.
    4. -: Cumulative Evidence: Records: Invited Error. It was not error to exclude the records of a corporation showing that defendant, charged as agent with embezzling its funds, was its president and treasurer, where he had previously testified that he was the company’s president and treasurer, and had objected and his objection had been sustained when the same records were offered by the State, for after his oral testimony the records were cumulative evidence and their exclusion had been invited by him, and therefore the error, if any, was not prejudicial.

      5. -: Reputation for Truth: Admissibility: Remoteness. Where a defendant charged with embezzlement testifies in his own behalf, then, as affecting his credibility, it is competent to permit the State to show his reputation for truth, veracity and morality down to the time of the alleged offense. And the fact that some of the witnesses, on cross-examination, testified that they had not known anything of him for at least two years prior to the offense, weakened the force of their testimony, but not its admissibility.
    ‘6.--: Demand: Consent of Owner. It is not material in embezzlement to show that the owner of the converted money demanded its return or that it was appropriated by defendant without the owner’s consent. Neither demand nor the absence of the owner’s consent is by the statute made a constituent element of embezzlement.
    7. -: Corporate Existence of Owner: How Proven.- The corporate existence of the company whose money defendant is charged with having embezzled need not be proved by the production of a certified copy of its charter or the act of its incorporation, to the exclusion of other testimony, but may be shown by general reputation or by parol; and in this case was shown by defendant’s testimony on a former trial which was introduced as an admission made by him.
    8. -: Instructions. A series of instructions in an embezzlement case which in the main are a rescript of the law as declared in State v. Wissing, 187 Mo. 102, are approved.
    Appeal from Jackson Criminal Court. — Hon. Ralph 8. Latshaw, Judge.
    Affirmed.

      R. B. Kirwa/n, Charles A. Loomis and E. M.,Bartlett for appellant.
    (1) The court erred in not sustaining the demurrer to the evidence in that the evidence submitted proved that he was president and treasurer of the corporation and not agent, servant or collector, as charged in the information. R. S. 1909, sec. 4550; Kiles v. People, 81 111. 600; People v. Allen, 5 Denio (N. Y.), 79; Comm. v. Wyman, 8 Met. (Mass.) 259; Comm. v. Tuekerman, 10 Cray (Mass.), 190; Reg. v. Walker, 8 Cox O. C. 1; Reg. v„ Tyrie, 11 Cox C. C. 241; Williams ■ v. Stott, 3 Tyrwhitt, 688; Hammel v. State, 5 Mo. 264. (2) The evidence submitted to the jury failed to prove that any offense'was committed, and there was no evidence that any offense charged was committed in the State of Missouri. State v. Bacon, 170 Mo. 161; State v. Mispagel, 207 Mo. 584. (3) The evidence submitted failed to prove that defendant had embezzled the money charged in the information. One of the elements of embezzlement is that the property shall be taken “without the assent of his master or employer.” No witness testified that the company did not give its assent for the money alleged to have been spent by Moreaux. No officer or agent of that company said or claimed that this money alleged to have been spent was not properly spent. No testimony was introduced that any demand had been made for this money. If authority was given for this alleged expense it would evidently be lawful; if not, it would be unlawful in the absence of either assent or dissent. Can the State assume there was not assent on the part of the company? The law presumes that acts are proper, not improper. State v. Martin, 230 Mo. 690; State v. Poster, 11 Iowa, 292; People v. Royce, 106 Cal. 176.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
    (1) The court did not err in overruling defendant’s demurrer to the information. It was sufficient in form and substance. State v.„Blakemore, 226 Mo. 560; State v. Wissing, 187 Mo. 96; State v. Shower, 196 Mo. 202; State v. Gebhardt, 219 Mo. 708; State v. Lipscomb, 160 Mo. 125; State v. Larew, 191 Mo. 192. (2) There was no error committed by the court in overruling defendant’s demurrer to the evidence. Secs. 5114, 5115, R. S. 1909; State v. Heath, 70 Mo. 56b; State'v. Lamb, 242 Mo. 400; State v. Lamb, 141 Mo. 298; State v. Martin, 230 Mo. 695; State v. Harmon, 106 Mo. 651; 2 Bishop’s New Crim. Law, sec. 364, p. 205; State v. Porter, 26 Mo. 205. (3) Error, if any, committed by the court in excluding evidence offered by defendant that he received the money in question as president and treasurer of the company, was cured by the testimony of the defendant that at the time he received the money in question, February 16, 1912, he.was not the “agent, collector or nothing, but president and treasurer of that company.” (4) There was no error committed by the court in admitting testimony as to the general reputation of the defendant for truth and veracity and morality. State v. Oliphant, 128 Mo. App. 261; State v. Pollard, 174 Mo. 618; In re Est. of Imboden, 128 Mo. App. 571; State v. Chinn, 164 Mo. App. 125; State v. Beckner, 194 Mo. ^88. (5) The court in giving instructions numbers 3, 4, 5, 6, 7, 8, 9 and 10, did not err. State v. Pratt, 98 Mo. 491. The court seems to have taken the instructions from State v. Wissing, 187 Mo. 102. (6) There was no error in refusing to admit the corporate records of the corporation offered by defendant. Testimony introduced by both State and appellant shows that appellant was treasurer and president of the corporation at the time of the alleged offense.' The court did not commit error in overruling defendant’s demurrer to the evidence in that the proof showed defendant was president and treasurer of the corporation and not an agent, servant or collector as charged in the information. Secs. 5114, 5115, R. S. 1909; State v. Heath, 70 Mo. 565; State v. Lamb, 242 Mo. 400; State v. Lamb, 141 Mo. 298; State v. Harmon, 106 Mo. 561. The crime of embezzlement can only be committed by an officer, agent, clerk, servant or collector, those occupying confidential or fiduciary relations to others, and our statute simply declares such persons to sustain such relations. State v. Lamb, 242 Mo. 400.
   WALKER, J.

The appellant was convicted in the criminal court of Jackson county, of embezzlement, and .sentenced to three years’ imprisonment in the penitentiary, from which he appeals to this court.

Omitting formal matter, the correctness of which is not questioned, the information is as follows:

“On the 16th day of February, 1912, at the county ■of Jackson, State aforesaid, being then and there the agent, clerk, collector and servant of the Bass Thousand-Acre Ranch Company, a corporation, duly organized and existing under the laws of the State of Montana (the said Augustus T. Moreaux not being then and there a person under the age of, sixteen years), then and there by virtue of such employment and office -of agent, clerk, collector and servant, as aforesaid, did have, receive and take into his possession and under his care and control certain money to the amount of twelve hundred and eighty-seven dollars, the same being then and there lawful money of the United States, Tbut the description of which said money is to the said prosecuting attorney unknown, and which said money was then and there of the value of twelve hundred and ■eighty-seven dollars, and then and there was the money and personal property .of the said Bass Thousand-Acre Ranch Company, a corporation, as aforesaid, the employer of him the said Augustus T. Moreaux and that "the said Augustus T. Moreaux the said money then and there unlawfully, feloniously, fraudulently and intentionally did embezzle and convert to his own use, without the assent of the said Bass Thousand-Acre Ranch Company, a corporation, as aforesaid, the owner of said money, and with the unlawful, felonious and fraudulent intent then and there to deprive the owner, the .said Bass Thousand-Acre Ranch Company, a corporation, as aforesaid, of the use thereof; against the peace .and dignity of the State.”

, On February 15, 1912, certain notes belonging to the corporation named were sold by the appellant for $5992.50, for which he took a check payable to himself and deposited it in his own name at the First National Bank of Kansas City, Missouri. Out of this fund arising from the sale of the two notes, appellant paid obligations of the corporation in the sum of $4700, leaving a balance of $1292.50. He withdrew this balance in currency from the bank and deposited the same in an envelope in a vault at the Baltimore Hotel. Several days thereafter he took $1287.50 of this balance and purchased a cashier’s check at the First National Bank in Kansas City, payable to himself, and went to Chicago. On February 19, 1912, he exchanged the cashier’s check at the Central Trust Company in that city, receiving therefor $287 in currency and a cashier’s check on the said Trust Company for $1000. On February 26, 1912, appellant returned to the Central Trust Company the $1000 check and received in exchange therefor a check for seventy-five dollars payable to one D. O. Daube, $200 in money, and a cashier’s check payable to appellant for $725. On March 2, 1912, appellant returned the cashier’s check for $725 issued to him by the Trust Company and received therefor a check for $125 payable to himself, a check for $100 payable to Hotel Secor, and $500 in currency. This in the main is the testimony.

Appellant’s own testimony is to the effect that he took the check which he had received in payment of the notes, to-wit, $5992.50, to the First National Bank in Kansas City, and paid a draft for $4700 for the corporation, and received the balance in cash; that with this cash several days thereafter he bought a cashier’s check for the balance and went to Chicago, for the purpose of buying seed and supplies for a ranch owned by the corporation; that he cashed the check in Chicago, received currency for it, and placed it in the vault of the LaSalle Hotel; that subsequently he spent some of this money for his expenses while in Chicago, but placed about $1150 in his. trunk in an envelope, and, when his trunk was seized by a constable under a writ of attachment, the money was stolen therefrom.

The State offered in evidence the records of the corporation of which appellant claimed he was the president and treasurer, and whose funds it was alleged in the information he had embezzled, but upon appellant’s objection they were excluded. Subsequently appellant offered these same records in evidence, counsel stating when the offer was made that the .purpose was to prove by such records that the appellant was, at the time of the alleged offense, the president and treasurer of said corporation and in charge of its funds as such, but the court again excluded the records.

The appellant was permitted to prove by his own testimony that at the dime of the alleged offense as stated in the information he was the president and treasurer of the corporation named therein, and that he sustained that relation to it at the time of the trial; and that at no time had he been the agent, clerk, collector or servant of the said corporation.

On cross-examination appellant was asked if he had not in 1907 stated to' three police officers in the city of Chicago that his name was. Edward J. Morrow, which statement appellant denied. Subsequently the three officers were introduced as witnesses and permitted to state, over the objections of the appellant, that he had stated to them in 1907, in the city of Chicago, that his name was. Edward J. Morrow; the court also permitted these officers to testify as. to the reputation of the appellant for truth, veracity and morality from 1907 to the time of the trial, the officers stating that such reputation was bad; upon cross-examination it was shown that neither of them had any knowledge of the defendant or his whereabouts, later than 1908, except one who stated that he had seen the appellant in Chicago two or three times subsequent to that year and once during the year of the trial.

The appellant contends that the information is insufficient; that the court should have sustained a demurrer to the evidence for the State; that the testimony of witnesses as to his reputation for truth, veracity and morality was improperly admitted; that improper instructions were given and proper instructions refused; that the records of the corporation offered in evidence by the defendant and excluded by the court should have been admitted.

It appears from the record that the appellant is under recognizance.

I. Information. The information is bottomed on section 4550, Bevised Statutes 1909, and charges the statutory crime of embezzlement. The essential elements of the offense are fully set forth, and it has been uniformly held by this court that an information or indictment for an offense purely statutory, will be sufficient if the language of the statute be substantially followed.

The sufficiency of an indictment under the statute in question (Sec. 4550, supra) almost identical in its allegations with the information in the case at bar, was considered at length by this court in State v. Blakemore, 226 Mo. 560, where earlier cases, here and elsewhere, were elaborately reviewed, resulting in the conclusion that if the offense was clearly and definitely charged in the language of the statute, as. it was in that case, the defendant had no cause of complaint'.

We, therefore, rule this contention against the appellant.

II. Sufficiency of Testimony. The validity of the information having been determined, we are led to an inquiry as to whether the evidence offered was sufficient to sustain the verdict — it being contended by the appellant that it was not.

Waiving any question for the time being as to this matter having been finally determined by the jury, the information charged that the unlawful conversion which is the gist of the offense, was effected while the appellant was acting in the capacity of an agent, clerk,, collector or servant of the corporation, but the proof was confined to that of agency. This was not improper because no matter in which one of the capacities named in the statute the appellant was shown te have acted, a like fiduciary relation existed between him and the corporation; or, in other words', regardless of the capacity, if within the statutory designation, a like obligation rested on him to account for and pay over' to the corporation its funds coming into his hands. Under this state of facts it was necessary for the State to show, first, that the appellant wasi an agent; second, that he received the money as such in the course of his employment; third, that it was the money of the corporation; and, fourth, that he converted it to his own use. [Ex parte Hedley, 31 Cal. 108.] Appellant contends that he was in no sense an agent of the corporation, but was its, president and treasurer, and that as such he received the money in question. That he so received the amount for which the notes were sold, may be admitted, and also that as treasurer he paid the obligation of the corporation, but by his own statement he thereafter drew a personal check for the balance which remained in the bank at Kansas City, to-wit, _the sum named in the information, receiving currency therefor with the ultimate purpose, as he states, of going to Chicago to buy seed and supplies for a ranch belonging to the corporation. In the absence of any other evidence, the capacity, therefore, in which appellant acted, is to be determined by the character of his action or the nature of the duty he testified he intended to perform. This was clearly characteristic of an agency. In this capacity, or in the course of his employment, he received at Kansas City the money he is charged with having embezzled; that it was the money of his principal, or, in other words, the corporation, he admits; and that he converted it to his own use is evident from his testimony in which he utterly fails to account for the expenditure of any money on behalf of the corporation coupled with the other facts and circumstances in the case.

Authority is not lacking to sustain the correctness of the conclusion as. to the capacity in which appellant was acting at the time of the alleged offense. In Commonwealth v. Tuckerman, 76 Mass. 173, it is held that a treasurer of a railroad corporation who converts its funds to his own use, comes within the provisions of a statute making “officers, agents, clerks or servants guilty of embezzlement who convert funds, of a corporation to their own use. ’ ’ The ruling in the Tucker-man case, supra, is peculiarly appropriate in this connection because of the similarity of the facts to those in the case at bar. In that case the money of a corporation was received by its treasurer and by him deposited to his credit as such treasurer, and was after-wards drawn out by him in currency and converted to his own use. Under this state of facts the court held that he was. guilty of embezzlement.

In State v. Weber, 103 Pac. (Nev.) 411, it is held that a president of a corporation is “a person” within the meaning of a statute declaring that “any person, or any agent, manager or clerk of a corporation” appropriating money to his own use, isi guilty of embezzlement.

In Laycock v. State, 136 Ind. 217, it is held that a treasurer of an unincorporated society is “an employee” of the society within the meaning of a statute which provides that “every officer . . . or employee of any . . . corporation or association” who misappropriates his employer’s money, shall be guilty of embezzlement.

Further it is held generally in Simpson v. People, 47 Colo. 612, that in a prosecution for embezzlement the accused must occupy the fiduciary relation designated in the information, and must have received the money charged to have been embezzled in that capacity. [See also 15 Cyc. 494.]

In regard to the sufficiency of the evidence as to the conversion, it is held in People v. Meadows, 136 App. Div. 226, 121 N. Y. S. App. 17, that the criminal intent with which the act was committed may be inferred from the acts and circumstances connected with the transaction, because ordinarily a man intends what his acts indicate; and that a deliberate conversion of property having been shown, but slight evidence of fact or circumstance is necessary to prove the existence of a felonious intent.

While it is held in State v. Mispagel, 207 Mo. 557, and later in Hanna v. Insurance Co., 241 Mo. 383, that a failure on the part of an agent to account for funds received by him will not of itself constitute embezzlement, such fact, if shown, will constitute material evidence tending to prove an unlawful conversion, which is the essence of the offense. Appellant did not in 'any manner attempt to account for the money received by him belonging to the corporation, his testimony in this behalf consisting of palpable evasions except that' he admitted he had expended a portion of the money to defray his. personal obligations and expenses while in Chicago. His failure to account for said funds, and his admission of an improper expenditure of a portion o'f it, together with all the other circumstances and facts in evidence are sufficient, in our opinion, to establish an unlawful conversion.

The evidence being ample to show that the appellant was acting within one of the classes designated in the statute, and while so acting that he converted the money to his own use, his demurrer to the State’s testimony was properly overruled.

III. Error in Admission of Testimony. Three police officers, of the city of Chicago, were permitted on behalf of the State to testify that the appellant in 1907 had, in said city, stated to them that his name was “Edward J. Morrow.” "What possible purpose this testimony was intended to serve we are unable to determine unless it was an attempt by indirection as an adroit innuendo to show what would not have been admissible to prove by direct testimony, namely, that appellant had been arrested by these officers at that time. The admission of this testimony was unauthorized, but as the inquiry in this- regard was not permitted to proceed further and the statement was denied by the appellant, the error was not sufficiently prejudicial to justify a reversal, especially in view of the fact that all the material testimony points to the guilt of the appellant.

The error noted and others committed during the trial, fortunately not sufficiently prejudicial to warrant a reversal, were due in no little degree to the fact that the State was represented by a special prosecutor. This custom of permitting the employment of special prosecutors and allowing them to conduct criminal cases for the State, while not unauthorized, is not to-be commended; they are usually employed by private individuals solely to secure a conviction, and their zeal and energies are bent to accomplish that end; this is not the sole purpose of a criminal prosecution but a result which may, and if the accused is shown to be guilty, should follow a fair and impartial trial, always best afforded the accused when the prosecution is conducted by the State’s accredited representative, who, no matter how vigorously he may prosecute, does not,, or at least should not, under his oath, lose sight of the fact that the accused is entitled to a fair trial.

IV. Exclusion of Testimony. Appellant further contends that he should have been permitted to introduce in evidence the records of the corporation for the purpose, as stated by his counsel when the offer was made, of showing that at the time, appellant reeeived the funds, in question he was the president and treasurer of the corporation. He had previously testified in his oral examination to this effect, and the admission of the records would have simply constituted cumulative evidence, and, therefore, their exclusion was not sufficiently prejudicial to authorize a reversal; besides, these same records had theretofore been offered in evidence by the State and had been excluded on the objection of the appellant. While we would not be understood as holding unqualifiedly that the exclusion of these records on the objection of the appellant would preclude him from subsequently using them in evidence, if it appeared from all the facts in the case that the refusal of the trial court to permit their introduction was prejudicial to the defense, but in this, case, we do not so regard it. The exclusion of the records when offered by the appellant not being prejudicial, and the error, if any, having been invited by him, he will not be heard to complain. [Sec. 5115, R. S. 1909.]

Y. Appellant’s Reputation. It is. contended that error was committed by the trial court in permitting the State to show the reputation of the appellant for truth, veracity and morality, down to the time of the alleged offense. Appellant had testified in his own behalf, and, under the rule in regard to this class of testimony, evidence as to his reputation was admissible to affect his credibility as. a witness- This rule is too well established to require discussion, the latest expression of the court on this subject being found in State v. Philpott, 242 Mo. 504. It is true that the witnesses on behalf of the State testified on direct examination that they knew what his reputation was down to the date of the alleged offense, but on cross-examination, except in one instance, stated that they had not known anything of the appellant for at least two years before said date. While these contradictory statements', weakened the force and effect of the witnesses’ testimony, they did not affect its admissibility. [Jackson v. State, 78 Ala. 471.]

VI. Demand or Lack of Consent by Owner. Appellant contends that a demand by the corporation for the money alleged to have been embezzled should have been shown, to have authorized a conviction, or, to state it differently, the State should have been required to prove that the conversion was. without the consent of the corporation. A sufficient answer to this contention is that the crime of embezzlement consists of the fraudulent conversion by the accused of property entrusted to his care by another, and it is, therefore, not material to show whether demand was made or that the conversion was without the consent of the owner.

In State v. Martin, 230 Mo. l. c. 690, the court in discussing the sufficiency' of an indictment for embezzlement says: “In some kindred statutes to that on which this prosecution is based the intent is made a constituent element of the offense and in others the criminality is made to depend upon the conversion being made ‘without the assent of the master or employer.’ In all of such cases, it is necessary to expressly aver the intent, or negative the knowledge or assent of the owner, in order to state a valid charge of the offense defined by the statute. But in the statute under consideration neither the intent of the defendant nor the absence of the assent of the owner is made an element of the crime, and therefore an averment as to either is not required. ’ ’

If absence of Jbe assent of the owner is not required to be averred as not being an element of the crime, then it is not necessary to be proved. It has frequently been so held in other jurisdictions.

It is held in Commonwealth v. Tuckerman, supra, that demand for or lack of consent by the owner of property converted is not necessary to constitute embezzlement; that these are facts, or circumstances admissible in evidence as bearing npon the question of a fraudulent intent, but for all other purposes they are wholly immaterial.

In State v. Mason, 108 Ind. 48, 52, the court held that the fraudulent failure or refusal of a county treasurer being established, no proof of subsequent demand or refusal was required.

In Commonwealth v. Hussey, 111 Mass. 432, it was held that: “A fraudulent conversion to the defendant’s own use would be embezzlement, whether demand were made or not, and, of course, such demand need neither be averred nor proved.”

VII. Corporate Character of Oioner. Appellant contends that error was committed by the State in its failure to prove the corporate existence of the Ranch Company, the alleged owner of the money charged to have been embezzled. This contention is not founded on fact. The corporate -existence of the company was admitted by the appellant in his testimony in a former trial, which was introduced in the instant case as admissions made by him, and by his statement on the stand that he was at the time charged in the information its president and treasurer. Corporate existence need not be proved by the production in evidence of a certified copy of the charter or act of incorporation to the exclusion of other testimony, but it may be shown by general reputation or by parol. [Sec. 5238, R. S. 1909; State v. Knowles, 185 Mo. 141, 169; State v. Decker, 217 Mo. 315, 322.]

In the Decker case, supra, the court holds that where a defendant does not object below to the manner in which corporate existence is proved, he will not be heard to complain here. Certainly he should not be heard to complain of a failure of proof when the matter alleged as error has been proved by his own testimony.

YIII. Instructions. Complaint is made of the instructions. The first and second simply prescribe the forms of verdict; the third is general and formally defines the offense and prescribes the punishment; the fourth is as to the proof of the intent with which the act was done, stating that such proof may be either direct or circumstantial; the fifth is as to the presumption arising from the act of the accused and from what facts criminal intent may be inferred; the sixth further defines embezzlement, and that the jury must be satisfied beyond a reasonable doubt of the felonious intent of the accused at the time of the conversion to authorize conviction; the seventh is the formal instruction in regard to the presumption of innocence; the eighth defines generally what constitutes a reasonable doubt; the ninth that the information is merely a formal charge and constitutes no evidence of the defendant’s guilt, to which is added the presumption of innocence and the necessity of proof of guilt beyond a reasonable doubt; the tenth is as to credibility of witnesses and the weight and value to be given their testimony, to which is added the consideration which may be given to each witness’s testimony measured by his interest, appearance on the stand, etc., and as to the right of the jury to reject or treat as untrue the whole or any part of any witness’s testimony who has wilfully sworn falsely.

The instructions in the form given have frequently been approved by this court. As suggested by counsel for the State, they are in the main a rescript of the law as declared in the case of State v. Wissing, 187 Mo. 96, 102, and are not subject to objection.

Proper instructions having been given, error was not committed in refusing those asked by the appellant.

Finding no error to warrant a reversal, the judgment is affirmed.

Far is, J., concurs; Broivn, J., concurs in the result and all except paragraph 3.