{ "id": 1530637, "name": "Storms v. State", "name_abbreviation": "Storms v. State", "decision_date": "1906-12-03", "docket_number": "", "first_page": "25", "last_page": "32", "citations": [ { "type": "official", "cite": "81 Ark. 25" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "72 Ark. 586", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1505532 ], "opinion_index": -1, "case_paths": [ "/ark/72/0586-01" ] }, { "cite": "71 Ark. 416", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "75 Ark. 427", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1502527 ], "opinion_index": 0, "case_paths": [ "/ark/75/0427-01" ] }, { "cite": "78 Ark. 284", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1497265 ], "opinion_index": 0, "case_paths": [ "/ark/78/0284-01" ] }, { "cite": "72 Ark. 586", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1505532 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/72/0586-01" ] } ], "analysis": { "cardinality": 701, "char_count": 18144, "ocr_confidence": 0.697, "pagerank": { "raw": 2.3007118925365984e-07, "percentile": 0.7873470615468315 }, "sha256": "78196ccfa023e00701db7d61012bf8178d53b295f90757aceeb68f7df3ed8477", "simhash": "1:a8f91184321ec00a", "word_count": 3149 }, "last_updated": "2023-07-14T21:26:22.159591+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Mr Justice Battue concurs in this dissent." ], "parties": [ "Storms v. State." ], "opinions": [ { "text": "Wood, J.,\n(after stating the facts.) The indictment is good. The term \u201cbailee\u201d is used in the statute, section 1839, Kirby\u2019s Digest. Alleging that a person received as a \u201cbailee\u201d certain money is sufficient to advise such person that he came into possession of the money of another to be held for the other for some special purpose, upon the accomplishment of which special purpose the money is to be returned or delivered over. Schouler on Bailments, \u00a7 2.\nThe indictment does not charge two separate and distinct offenses. The crime alleged in the indictment is embezzlement which, committed under the circumstances and in the manner detailed, the statute denominates also larceny. Sec. 1839, Kirby\u2019s Digest. Only one offense is alleged.\nThe court erred in permitting the prosecuting attorney to argue that Wyman and the defendant \u201centered into a conspiracy to rob and were conspirators in robbing the Ft. Smith Commission Company, that Wyman would take the tickets out of the drawer after they had been made by the shipping clerk, so that they would not go to the bookkeeper, and that the defendant would collect the bills and divide the spoils, with Wyman; that Wyman had been arrested for .it, had forfeited his bond and run away, left the country.\u201d There was no evidence upon which to ground this argument. It was not shown that Wyman and appellant were in a' conspiracy to rob the Ft. Smith Commission Company. Even had such conspiracy been shown, the acts and declarations of one of the conspirators in-the absence of the other, after the object of the conspiracy had been accomplished, could not be used in evidence against the one on trial. Benton v. State, 78 Ark. 284, and authorities cited. . It was therefore highly prejudicial to appellant for counsel to assert as a fact that appellant was in a conspiracy with another to rob the Ft. Smith Commission Company, and that the other conspirator had been arrested, had given bond, and had fled the country. Thus counsel attempted by assertion, without proof, to make the impression upon the jury that one was associated in crime with appellant and had shown by flight his consciousness of guilt. If the jury accepted as true the assertion of counsel, the inevitable conclusion would be that appellant was also guilty. For in a conspiracy of two one is necessarily as guilty as the other. The argument was most unfair to appellant,- and well calculated to prejudice his cause before the jury. While we would not have disturbed the verdict upon the evidence aside from this improper argument, we are not so clearly convinced of appellant\u2019s guilt upon the undisputed facts as to be able to say that the verdict was not caused by the extraneous evidence and improper argument which the prosecuting attorney brought into the record. See Marshall v. State, 71 Ark. p. 415.\nThe court did not err in refusing appellant\u2019s request for instruction numbered six, and in giving instead section 1844 of Kirby\u2019s Digest. This statute makes it unnecessary, where it is alleged, as in this indictment, that gold, silver, and paper money was embezzled, to do more than prove the amount of money, in all taken. That proof was made in this case by showing that the bill of Mayo marked paid by appellant amounted to $10.50. From this and other proof the jury were warranted in concluding that appellant had received the sum of $10.50.\nThe court did not err in admitting evidence of other similar transactions by appellant before and after the alleged transaction in controversy, since it was admitted with the limitation that it could only be considered on the question of intent. I Wigmore on.Ev. \u00a7 329; Howard v. State, 72 Ark. 586. If appellant was guilty at all, the particular criminal act under consideration according to the proof was one of a series of similar acts, and these were admitted to prove system and show design. Howard v. State, 72 Ark. 586, supra; Johnson v. State, 75 Ark. 427.\nThe judgment is reversed, and the cause is remanded for nevr trial.", "type": "majority", "author": "Wood, J.," }, { "text": "Hmu, C. J.,\n(dissenting.) It is true that the prosecuting attorney referred to an unproved matter, the alleged flight of Wyman, but it was not a matter going to the real issue of the case \u2014 the guilt or innocence of this defendant \u2014 and I regard it as trivial, not prejudicing any substantial right of defendant; and the court\u2019s instruction removed any possible prejudice by confining the jury\u2019s attention to the real issue, which, according to previous decisions, is sufficient in such cases.\nMr Justice Battue concurs in this dissent.", "type": "dissent", "author": "Hmu, C. J.," } ], "attorneys": [ "Ira D. Oglesby, for appellant.", "Robert L. Rogers, Attorney General, and G. W. Hendricks, for appellee." ], "corrections": "", "head_matter": "Storms v. State.\nOpinion delivered December 3, 1906.\n1. Embezzlement \u2014 indictment.\u2014An allegation in an indictment for embezzlement that defendant received certain money as \u201cbailee\u201d is sufficient to advise him that he came into possession of the money of another to be held for the other for some special purpose, upon the accomplishment of which the money was to be returned or delivered over. (Page 30.)\n2. Same \u2014 duplicity.\u2014An indictment for embezzlement which alleges that defendant, having received as bailee certain property belonging to another, unlawfully and feloniously did embezzle, and unlawfully and feloniously did' steal, take and carry away, the same does not charge two separate offenses. (Page 31.)\n3. Trial \u2014 argument not based on- evidence. \u2014 It was prejudicial error to permit the prosecuting attorney, in his argument, to charge defendant, accused of embezzlement, with having entered into a conspiracy to rob his employer, and to make reference to acts and declarations of the alleged fellow conspirator where there was no proof of such conspiracy, and where the alleged acts and declarations were done and made in defendant\u2019s absence and after the object of the conspiracy, if there was one, had been accomplished. (Page 31.)\n4. Evidence \u2014 acts oe conspirators.- \u2014 The acts and declarations of a conspirator are not admissible against a fellow conspirator where they were done and made in the latter\u2019s absence and after the object of the conspiracy had been accomplished. (Page 31.)\n5. Evidence \u2014 other crimes. \u2014 In a prosecution for embezzlement it was not error to admit evidence of other similar transactions both before and after the alleged transaction in controversy, where the jury were instructed that the evidence could only be considered on the question of intent Page 32.)\nAppeal from Sebastian Circuit Court; Styles T. Rowe, Judge;\nreversed.\nstatement by the court.\nThe appellant was indicted as follows: \u201cThe said defendant, in the county and district aforesaid, on the 1st day of September, 1905, and being then and there the bailee of Ft. Smith Commission Company, a corporation, and as such bailee having received from Dave Mayo, Tom O\u2019Leary and Frank Mason $10.50, gold, silver and paper money of the value of $10.50, the property of said Ft. Smith Commission Company, a corporation as -aforesaid, and being then and there the bailee of said Ft. Smith Commission Company, unlawfully and feloniously did convert and embezzle to his own use the said above described $10.50, gold, silver and paper money of the value of $10.50, the property of said Ft. Smith Commission Company, and so the said Gus Storms the above described money of the value of $10.50, the property of said Ft. Smith Commission Company, unlawfully and feloniously did steal, take and carry away/\u2019\nA demurrer in short to this indictment was overruled. The State adduced the following testimony:\nC. B. Riley testified: \u201cIn the year 1905 I was employed as manager of the Ft. Smith Commission Company. Louis Weiman was acting as salesman and collector. Defendant was employed as wagon driver and collector of bills that he delivered C. O. D. It was his duty to collect these bills, mark the bills paid and deliver the money to the office.\u201d\nQ. \u201cI will ask you to state how you received and filled \u2022orders of these C. O. D. packages in the city of Ft. Smith?\u201d\nA. \u201cThe customer would call over the \u2019phone or give the order to some of our city salesmen, who would \u2019phone it .in, and this order would be written upon one of. the order sheets, and the shipping clerk would fill the order. Such orders would be turned over to the shipping clerk, who would get the goods out, mark the weight and fill out the amount in dollars and cents, make out\u2019 the number of ticket, invoice to the customer going to, and turn it over to weighman or driver. The only record we have in the office was the memoranda taken down on the order blank and turned over to the shipping clerk. The order blanks were placed in the drawer of the shipping clerk\u2019s desk. In the evening these sheets were taken to the bookkeeper, and the next day he would charge them up on the ledger. The bill for the 14th of January, 1905, for potatoes and celery sold Dave Mayo, amount $10.50, was made out by Mr. Tom Williams, shipping clerk, and was marked \u201cPaid\u201d by the defendant Storms. There is no record in our office of this transaction. I found the bill in the possession of Mayo.\u201d The State then offered in evidence the \u25a0 other bills sold Mr. Mayo, five bills sold Hotel Main, and eight bills sold Stevens & Rainey, all of which were objected to. \u201cThe bills are found on page 33 of the record. There is no charge of these bills on the books of the Ft. Smith Commission Company. Frank Wyman was in the employ of the company when these bill's were purchased. I did not see the goods delivered; only know the bill was marked \u2018Paid.\u2019 \u201d Cross-examination: \u201cDon\u2019t know who delivered them or to whom the money was paid or how paid; do not say. the money was 'not turned over to Wyman. There were about twenty other employees besides Wyman. Don\u2019t know if the money was turned over to them; the records do not show. It seems there was money turned over know what Wyman told me.\u201d Re-direct examination: \u201cIf he delivered goods, it was his duty to turn the money over to the cashier. Wyman had no right to collect. Wyman was a salesman and collector; he collected from the customers; had no authority to collect from drivers. It was Storms\u2019s custom to turn money over to the cashier. Don\u2019t know what particular bills were collected, or what moneys were turned over to the cashier-; don\u2019t know whether he did or did not turn over this $10.50.\u201d\nFrank Mason testified: \u201cI was manager of Mayo\u2019s restaurant. It was the custom in the year 1905 for me to O. K. bills and for Mr. O\u2019Leary to pay them. Some of the bills shown me were O. K.\u2019d by Mr. Eckwood. The bill of January 14 was not \u2019 paid by me; it was paid by M-r. O\u2019Leary or M-r. Mayo.\u201d Cross-examination: \u201cDon\u2019t\u00abknow of my own knowledge whether it was ever paid, nor how it was paid. The bill shows I O. K.\u2019d it, and it was supposed to be collected after I did this.\u201d\nDave Mayo testified: \u201cThe bill shown me of January 14, 1905, was O. K.\u2019d by Frank Mason, and paid by somebody in our employ. I don\u2019t know who paid it. It was paid at my place of business by some one. Don\u2019t know of my own knowledge who paid it. Was not present when it was paid. Know nothing of my own knowledge except what the bill shows.\u201d Cross-examination: \u201cDo not know of my own knowledge who madepayment of the bill. Do not know whether defendant got any money on it. Do not know whether it was all paid at one time \u25a0or at different times.\u201d\nEmma Yonkee testified: \u201cWas cashier and bookkeeper for the Ft. Smith Commission Company in the year 1905. C. O. D. bills in the city would be turned in by the driver, a copy of the invoice brought to the cashier, -the money turned in and the bills .stamped \u2018Padd.\u2019 When .money was thus turned in, I put the amount in a book I had for record and returned the bill to the driver after it was stamped \u2018Paid.\u2019 The batch of Dave Mayo\u2019s bills shown me, including the one January 14, 1905, do not appear upon my cash book to have been paid.\u201d\nC. B. Riley, recalled, testified: \u201cThere is no record upon any of their books of any of the sixteen 'bills sold Mayo, or of the eight sold Stevens & Rainey, nor of the five sold -Hotel Main.\u201d\nDave Mayo, recalled, testified that either Mr. O\u2019Leary or himself paid the other bills shown him.\nThe bills introduced in evidence, other than the one upon which the embezzlement was based, consist of five bills to Dave Mayo, the first being dated February 14, 1905, and the last September 7, 1905. The five bills sold Hotel Main are of date September 8, 1905, to September 23, 1905. The first bill of Stevens & Rainey bears date May 9, 1905, and the seven others at sundry dates from that time to September 13, 1905. The introduction of each of these bills was objected to, and objection overruled.\nThis was all the testimony introduced on behalf of the State. Defendant introduced testimony as to his good character.\nThe prosecuting attorney in his opening statement to the jury, among other things, said: \u201cThat thdFt. Smith Commission Company had been systematically robbed by its employees; that the scheme by which it was accomplished was, when an order for goods to be delivered by wagon in Ft. Smith was received it would be filled, but no entry be made on any books; that the slip showing the order would be given the shipping clerk, who would put it in a drawer in the office, and afterwards a confederate in the house would steal out this slip, so it would not go to the bookkeeper; that when the goods were delivered and collection made by the defendant, he, defendant, and his confederates would divide the money; that-Wyman was in the deal, and had been arrested for it, but gave bond,, forfeited his bond and ran away.\u201d Defendant objected to each and .every statement made by the prosecuting attorney as above set out, but the court overruled the objection, saying that he would \u201cgovern that when the evidence was offered; it might or might not be admissible.\u201d\nThe prosecuting attorney in his concluding argument said: \u201cThat not only did the defendant embezzle $10.50, but the bills he collected at Hotel Main, Stevens & Rainey and the other bills collected from Dave Mayo; 'that this was accomplished through the scheme he outlined in his opening statement to the jury, for which Wyman had been arrested and gave bond and skipped the country.\u201d Defendant objected to each and every statement above set out. and thereupon the court said that the jury \u201cmight consider the other bills sold to Mayo, Hotel Main and Stevens & Rainey only for the purpose of determining defendant\u2019s intent, but the jury could not convict him of any offense except the one charged in the indictment, and that this evidence was admitted for the sole purpose of shedding light on the question of intent, if it did so.\u201d The court, with this statement, overruled defendant\u2019s objection, to which defendant excepted.\nThe court, after having instructed the jury that, in order to convict the defendant, the testimony must establish that $10.50 in gold, silver or paper money were paid to him by Dave Mayo, Frank Mason or Tom O\u2019Leary, then gave as a further instruction the following section of Kirby\u2019s Digest:\n\u201cIn all prosecutions for the unlawful taking of money by larceny, embezzlement or otherwise, it shall not be necessary to particularly describe in the indictment the kind of money taken or obtained further than to allege gold, silver or paper money, and a general allegation in the indictment and proof of the amount of money taken shall be sufficient.\u201d\nThe court refused to give the following instruction:\n\u201c6. The allegation in the indictment that the defendant embezzled $10.50 in gold, silver or paper money paid him by Dave Mayo, Frank Mason or Tom O\u2019Leary is a material allegation, and must be proved as charged beyond a' reasonable doubt. If the evidence does not establish the kind of money received by the defendant and the value of that money, the jury cannot presume that he received from them $10.50 in gold, silver or paper money, and that its value was ten dollars and fifty cents.\u201d\nTo the action of the court in refusing to give this instruction, and in giving in charge the section of Digest above set out, the defendant excepted.\nThe jury returned a verdict of guilty.\nAppellant filed his motion for new trial, containing- all the exceptions reserved. It was overruled. Motion in arrest was overruled. Appellant prosecutes this appeal.\nIra D. Oglesby, for appellant.\nI-. The indictment is bad. It should have stated the facts constituting the alleged bailment, how and in what way defendant was bailee, instead of merely stating conclusions. It is also bad because it charged two offenses, larceny and embezzlement.\n2. The cause should be reversed on account of language used by the prosecuting attorney in his opening statements and concluding argument to the jury, which was necessarily prejudicial to the defendant, .and which were not supported by testimony. 71 Ark. 416.\n3. The court erred in allowing other bills of merchandise alleged to have been sold long after the offense by defendant was alleged to have been committed. The testimony in this case does not fall within the rule laid down in 72 Ark. 586.\n4. It- was error to refuse the sixth instruction asked for by defendant, and also, under the testimony in this case, it was error to give the section of the Digest to the effect that it was not necessary to prove the value of the money alleged to have been received. It was in conflict with other instructions given, and authorized a conviction although the evidence did not show the kind of money embezzled nor the value thereof.\nRobert L. Rogers, Attorney General, and G. W. Hendricks, for appellee.\n1. Evidence of other crimes of exactly the same nature, occurring about the same time, and in each case the order blank, the evidence of the sale retained at the store, was missing, negatives the theory of mistake, and on this ground the evidence was admissible. Wigmore on Evidence, \u00a7 329.\n2. The prosecuting attorney's statements, although partly out of the .record, were not prejudicial.\n3. Instruction numbered six asked by appellant was substantially included in another instruction already given, and it was properly refused; and in lieu of that instruction it was proper to give in charge to the jury the section of the Digest." }, "file_name": "0025-01", "first_page_order": 45, "last_page_order": 52 }