Green v. State

Decision Date31 January 1933
Docket Number26,132
Citation184 N.E. 183,204 Ind. 349
PartiesGreen v. State of Indiana
CourtIndiana Supreme Court

1. INDICTMENT AND AFFIDAVIT---Charging Offense---Language of Statute.---It is not necessary to strictly pursue the language of the statutes defining a public offense, but is sufficient if words conveying the same meaning are used. (2203 Burns 1926.) p. 352.

2. INDICTMENT AND AFFIDAVIT---Charging Offense---Sufficiency.---An indictment or affidavit sufficiently charges the offense when the offense is clearly set forth in plain and concise language without unnecessary repetition with such a degree of certainty that the court may pronounce judgment upon a conviction according to the rights of the case. (2224 Burns 1926.) p. 352.

3. INDICTMENT AND AFFIDAVIT---Construction of Words used Therein.---Words used in an indictment or affidavit must be construed in their usual acceptance in common language except words and phrases defined by law, which are construed according to their legal meaning. (2223 Burns 1926.) p. 352.

4. BANKS AND BANKING---Indictment Against Bank Officer---For Illegal Receipt of Deposit---Held Sufficient.---An indictment for accepting a deposit in an insolvent bank, which charged that defendant "was then and there the president" of the bank "and while acting as an officer, president and director, did then and there... receive... as a deposit within said banking company," was held to sufficiently charge that defendant received the deposit by virtue of his official position. p. 352.

5. BANKS AND BANKING---Statute Prohibiting Receiving Deposits with Knowledge of Insolvency---Applies to Savings, Loan and Trust Companies.---2479 Burns 1926, prohibiting a bank officer from accepting a deposit knowing the bank to be insolvent, applies to officers of savings, loan and trust companies. (2479 Burns 1926 and 3950, cl. 9.) p. 355.

6. BANKS AND BANKING---Officer Receiving Deposit with Knowledge of Bank's Insolvency---Burden of Proof.---In a criminal action against a bank officer under 2479 Burns 1926, the state has the burden of proving the insolvency of the bank at the time the deposit was received and must prove the fact irrespective of a civil adjudication of the bank's insolvency. p. 355.

7. BANKS AND BANKING---Officer Receiving Deposit with Knowledge of Bank's Insolvency---Proof of Insolvency---Cannot be Shown by Civil Judgment.---In a criminal action against a bank officer for receiving a deposit, knowing of the bank's insolvency (2479 Burns 1926), a civil judgment of insolvency is inadmissible for any purpose. (State v. Beach (1897), 147 Ind. 74, 46 N.E. 145 distinguished and modified. p. 355.

8. CRIMINAL LAW---Harmless Error---Instruction.---In an action against officer of a loan and trust company for receiving a deposit with knowledge of the company's insolvency under 2479 Burns 1926, an instruction which told the jury that, if the trust company was engaged in business of receiving deposits on checking accounts and savings deposits, such company "was an incorporated bank," though inaccurate, was held not reversible error since any company doing a bank business would come within the statute regardless of whether it was an incorporated bank. p. 361.

From DeKalb Circuit Court; Wm. P. Endicott, Judge.

Monte Green, President of Garrett Savings, Loan and Trust Company was convicted under § 2479 Burns 1926, for receiving a deposit, knowing that the company was insolvent, and he appealed.

Reversed.

Rex S. Emerick and Atkinson & Husselman, for appellant.

James M. Ogden, Attorney-General, and Harry Taylor, Assistant Attorney-General, for the State.

OPINION

Hughes, J.

The appellant, president of the Garrett Savings, Loan and Trust Company, was indicted under § 2479 Burns 1926 for receiving a deposit, knowing that the company was insolvent whereby the deposit was lost to the depositor. He was tried by a jury and found guilty. Judgment was rendered upon the verdict of the jury and he was fined $ 50.00 (double the amount of the deposit) and sentenced to prison for a period of not less than two nor more than fourteen years. There are three errors relied upon for reversal by the appellant: the overruling of his motion (1) to quash the indictment, (2) in arrest of judgment, and (3) for a new trial.

The appellant contends that under the first two assignments of error that the facts stated in the indictment do not constitute a public offense for the reason that (1) in order to state a public offense under § 2479 Burns 1926 the indictment must charge that the appellant received such money as an officer of such bank or that he received it "by virtue of his employment," and he contends that the indictment fails to so charge, and (2) he contends that it is not a crime in the State of Indiana for an officer, agent, or employee of either a savings, loan, or trust company to accept and receive a deposit of money at a time when such savings, loan, or trust company was insolvent, although such insolvency was well known to such officer, agent, or employee and although such deposit was thereby lost to such depositor for the reason that the Banker's Embezzlement Statute, namely, § 2479 Burns 1926, does not include within its provisions officers, agents, or employees of either savings, loan, or trust companies and therefore as such officers, agents, or employees are not enumerated and included in such section, they can not be guilty of embezzlement under said § 2479.

As to the first contention, we find that the indictment contains the allegation that the appellant, Monte L. Green, on the thirty-first day of December, 1930, was then and there president and a director of the Garrett Savings, Loan and Trust Company . . ., that said Monte L. Green, who was then and there an officer of said banking company, well knowing the insolvency of said company and while acting as an officer, president and director of said company, did then and there feloniously, fraudulently and unlawfully receive and take from one . . . who was not then and there indebted to said bank the sum of twenty-five ($ 25.00) . . ., as a deposit within said banking company, whereby said sum was lost to the depositor. . . .

The appellant cites many cases as upholding his first contention. We feel that upon close analysis of these cases he is in error and that there is a distinct difference between them and the one at bar. § 2203 Burns 1926, provides that "words used in a statute to define a public offense need not be strictly pursued, but other words conveying the same meaning may be used." And § 2224 Burns 1926, provides that an indictment or affidavit shall be sufficient as to the part charging the offense if the "offense charged is clearly set forth in plain and concise language without unnecessary repetition," and if it is "stated with a degree of certainty that the court may pronounce judgment upon a conviction according to the rights of the case." § 2223 Burns 1926, provides that "words used in an indictment or information must be construed in their usual acceptance in common language, except words and phrases defined by law, which are construed according to their legal meaning."

The appellant asserts that "the indictment must charge that the appellant received such money as an officer of such bank in order to constitute a public offense." We feel that in construing the words of the indictment in their usual acceptation in common language that they charge that the appellant received such money as an officer of such bank. There is the positive statement in the indictment that Monte L. Green "was then and there the president of" . . . "and while acting as an officer, president, and director did then and there . . . receive . . . as a deposit within said banking company." The indictment certainly shows that there was a special trust in relation to the deposit and that by virtue of such trust the appellant had access to, control and possession of said deposit. While it is true that the indictment does not specifically charge in so many words that the appellant had possession of the deposit by virtue of his employment or position, yet in the usual acceptation in common language this is the meaning of the charges in the indictment and is sufficient.

The appellant cites the case of Hinshaw v. State (1919), 188 Ind. 147, 122 N.E. 418, 421. The indictment in the Hinshaw case differs from that in this case in not sharing the receiving and taking, "while acting as an officer." In the Hinshaw case the court said, "It is fundamental that, in embezzlement, the taking and receiving part of the charge must be connected and coupled with the statement that such taking and receiving was by virtue of the office, or the agency, or the employment." We do not understand by this statement that it is absolutely necessary to use the exact words by "virtue of the office," in order to make an indictment good. If other words are used which convey the same meaning the indictment will be good. Frost v. State (1912), 178 Ind. 305, 99 N.E. 419. In the present indictment it is positively averred that the appellant was president and while acting as such he received the sum of $ 25.00 as a deposit within said banking company. This language certainly means, if it means anything, that he received and took the money by virtue of his office. This construction being true it is in complete harmony with all the cases cited by the appellant.

The appellant cites the case of Frost v. State supra, as upholding his contention. We do not think so. In this case the affidavit stated the defendant "was then and there Treasurer of Clay Encampment Independent Order of Odd Fellows, and as such treasurer then and there had control and possession of . . . the property of . . . that the said ...

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9 cases
  • Green v. State
    • United States
    • Indiana Supreme Court
    • 31 Enero 1933
  • Walter v. State
    • United States
    • Indiana Supreme Court
    • 16 Abril 1935
    ...identical in all respects with the one at bar, and settled adverselyto appellant's contention, in the cases of Green v. State (1933) 204 Ind. 349, 184 N. E. 183, 87 A. L. R. 1251, and Gillian v. State (1935) 207 Ind. 661, 194 N.E. 360. Appellant challenged the array of the jury upon the gro......
  • Walter v. State
    • United States
    • Indiana Supreme Court
    • 16 Abril 1935
    ...that the institution was insolvent thirty days after accepting the deposit was held to be incompetent as evidence of insolvency in Green v. State, supra. cases cited deal with the competency of evidence, but here we are confronted with instructions in which the court told the jury that if t......
  • Sheets v. State
    • United States
    • Indiana Supreme Court
    • 9 Diciembre 1940
    ... ... virtue of' such employment to constitute a good charge of ... embezzlement, but we do understand the cases to hold that ... that ultimate fact must be charged by some appropriate ... language. Frost v. State, 1912, 178 Ind. 305, 99 ... N.E. 419; Green v. State, 1933, 204 Ind. 349, 184 ... N.E. 183, 87 A.L.R. 1251. While the participial form of ... averment is not to be commended, it is not now regarded as ... fatal to preface allegations of fact with such words as ... 'being,' 'having,' 'knowing,' or ... 'acting as.' Agar v. State, 1911, ... ...
  • Request a trial to view additional results

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