State v. Coster , 170 Mo. App. 539 ( 1913 )

ELLISON, P. J. —

Defendant was charged and convicted of receiving stolen goods knowing they were stolen. It appears that a wholesale grocery company had in its employ one Ashlock, who was in charge of and whose duty it was to deliver and check out goods belonging to the company which had been sold. The company also had in its employ a transfer company, one of whose wagons was driven by one Nelson. It was the duty of Ashlock to deliver and check out to the transfer wagons goods for delivery, and in the instances upon which the indictment was founded Ashlock delivered goods to Nelson and he converted them to his own use by selling to purchasers and dividing the proceeds with Ashlock.

In this state of ease the offense was embezzlement and not larceny. The principals being guilty of embezzlement, the accessory would not be guilty of larceny. [State v. Casey, 207 Mo. 1; State v. Fink, 186 Mo. 50.]

The judgment should be reversed and cause remanded.

All concur.

ADDITIONAL OPINION.

ELLISON, P. J. —

Since this case was determined and after the time for a motion for rehearing had expired, it has been suggested that there were inaccuracies in the transcript not noticed by the representative of the State in time to take any action thereon. The term not having yet expired since the judgment was entered, we have the right to entertain the suggestion (Ewart v. Peniston, 233 Mo. 695; Williams v. Railroad, 156 Mo. App. 675) and have done so.

We find that the matters suggested did not and could not have influenced us as to the proper disposition of the case. We formed our conclusion that the offense committed by defendant was receiving embezzled property and not stolen property. Ashlock and Nelson, by arrangement between themselves, were the parties who sold and delivered the goods to defendant. They did not steal them. They were employees of the grocery company which owned the goods, and Ash-lock was in possession of them. He was the State’s witness and testified that the goods were taken from the first floor, of which he had charge; that no goods could properly go out to the wagons without his order. It was his duty to check them out; and that he delivered the goods now in question to Nelson, the driver. Nelson was the man who delivered the goods to defendant. He also was the State’s witness and testified that he got possession of them through Ashlock, and that Ashlock had supervision and direct control over them. Ashlock also testified that he had no right to turn goods over to the drivers which he did not check ont, and that he did not check the goods in question. Upon this the State seems to have adopted the theory, as shown by instruction No. 4, that if Ashlock had no authority from his employer to deliver the goods to the transfer or wagon men without checking them, that had the effect of making the crime larceny instead of embezzlement. If authority or right to do the act determined the character of the offense, embezzlement would, indeed, be a rare crime. If Ashlock had come 'into possession of the goods for the purpose and with the felonious intent to convert them to his own use, it would have been larceny. But the evidence does not show that to be the fact. As already stated, he was and had been the owner’s employee and the testimony was that he was in charge and direct control of the goods. He had been and was in lawful charge of them whén he conceived the design of converting them to his own use. He thus became guilty of embezzlement. We know of no way to distinguish this case from those cited in the original opinion.

. -Our views of the case necessarily resulted in a reversal of the judgment. The reason we remanded the cause was that we were not advised whether it would be permissible for the State to amend the information so as to charge defendant with receiving embezzled goods. That is a phase of the case the State’s attorney can investigate, and about which we do not intimate an opinion. If it cannot be done, the defendant should be discharged from the present information.

The other judges concur.