State v. Bacon
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Opinion of the Court
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BURG-ESS, J.
Defendant was convicted in the circuit court of Wright county under an information in two counts, filed against him by the prosecuting attorney of said county, in one of which he is charged with embezzling as bailee thirty-sis dollars in money belonging to one Cheney, and, in the other, he is charged with embezzling the same money as the agent of said Cheney. His punishment was fixed at two years’ imprisonment in the penitentiary. After unsuccessful motions for new trial and in arrest defendant appeals.
Defendant filed a plea of autrefois acquit, in which he alleged that he had been tried and acquitted of the same offense in Douglas county, Missouri.
The facts constituting the offense charged in both informations were that the defendant was by Cheney entrusted with a pension check for thirty-six dollars in Douglas county, which he was to take from that county to Norwood in Wright county, Missouri, and cash, and return with the money to Cheney in Douglas county. The information in each case showed clearly that the defendant was entitled to and did take the draft to Wright county and cash the -same.
Under the instructions given by Cheney to defendant he was vested with authority to take the draft to Norwood in Wright county to have it cashed, and, in so doing, was not guilty of a breach of duty, or of any *163 crime; and was,- therefore, properly acquitted in the circuit court of Douglas county: of embezzling the draft. But with respect to the money realized by him upon the draft, he had no authority from Cheney, to whom it belonged, to do otherwise with it than to deliver it to him, and, in appropriating it to his own use, if he did so with a fraudulent intent without Cheney’s consent, he was guilty of embezzlement. This was the theory upon which the case was tried, and was the proper one.
The instructions were free from objection and covered every feature of the case, and as the verdict was well warranted by the evidence and the record free from error, we affirm the judgment.
All of this Division concur.
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