R. C. Stone Milling Co. v. McWilliams

BLAND, P. J. (after stating the facts). — 1. It is contended that instruction numbered 1 required plaintiff to make a prima facie case, to prove by a preponderance of the evidence, first, the amount of wheat purchased by defendants on plaintiff’s account; second, the amount shipped, and, third, a demand for the difference between the amount shipped and the amount received, and the refusal on the part of defendant to account for the shortage. The first proposition of the instruction is that if defendants shipped plaintiff all the wheat bought by them for plaintiff, the verdict should be for the defendants. This proposition is clearly right. The second proposition announced in the instruction is that defendants did not have to account for the shortage, if there was any, but the burden was on plaintiff to show by a preponderance of the evidence that there was a shortage of wheat and that defendants converted the same in the manner defined in the instructions, that is, “feloniously, willfully and unlawfully converted the shortage of wheat to their own use without the assent of the plaintiff.” The charge was that defendants had been guilty of embezzlement. The instruction announced the proposition that they were not required to account for the shortage to clear themselves of the charge but, admitting there wa.s a shortage,. still the burden was [323] on plaintiff to show the shortage went into defendants’ pockets with the guilty intent of converting it to their - own use. We see nothing wrong in this. Defendants were not called upon to show their innocence of the charge. A mere shortage in the wheat did not prove them guilty of having embezzled it. To authorize a conviction, it was essential to show not only a shortage, but also that the shortage resulted from- a willful and felonious conversion of the wheat by defendants to their own use, and the onus was on plaintiff to prove these essential facts to entitle it to a verdict. [The Home Lumber Co. v. Hartman, 45 Mo. App. 647.] 2. Instruction numbered 2 is criticised as being a comment on the evidence. The instruction is not a comment, on the evidence, but is a correct enunciation of the essential facts plaintiff was required to show to authorize the jury to find a verdict sustaining the attachment. [The Home Lumber Co. v. Hartman, supra.] 3. After argument of counsel, and before the jury had retired to consider of their verdict, plaintiff requested the court to permit the jury to take to their room the daily reports, checks and weight cards read in evidence, which request was refused by the court, to which ruling plaintiff then and there excepted. Whether or no these documents should have been put in the hands of the jury rested in the sound discretion of the trial court. This discretion is not reviewable on appeal, unless it clearly appears it was abused.. From these daily reports, checks, and weight cards, the shortage of wheat was ascertained, and the evidence of the shortage was clear and convincing, hence the main controverted fact was whether or not the shortage was the result of a felony committed by defendants. .In this State of the evidence it does not appear to us that the possession of the documents by the jury was indispensable to enable them to arrive at a verdict, and hence there is no just ground to criticise the action of [324] the court in declining to put the documents into the hands of the jury. No reversible error appearing, the judgment is affirmed. All concur.