Colip v. State

• Decision Date: 14 December 1899
• Docket Number: 19,057
• Citation: 55 N.E. 739,153 Ind. 584
• Parties: Colip v. The State
• Court: Indiana Supreme Court

55 N.E. 739

153 Ind. 584

Colip v. The State

No. 19,057

Supreme Court of Indiana

December 14, 1899

From the Hamilton Circuit Court.

Affirmed.

S. D Stuart and C. G. Reagan, for appellant.

Wm. L Taylor, Attorney-General, C. C. Hadley, Merrill Moores and John E. Garver, for State.

OPINION

Dowling, J.

Information founded upon an affidavit charging appellant with the crime of petit larceny. Trial by jury. Verdict of guilty. Motion for a new trial overruled, and judgment on verdict that appellant be committed to the care and custody of the board of managers of the Indiana Reformatory, etc., that the State of Indiana recover from the appellant the sum of $ 1 as a fine, and that he pay all costs, etc.

The only error discussed on this appeal is the ruling of the court on the motion for a new trial. It is insisted that the verdict and judgment, respectively, are "contrary to law" and "contrary to the evidence."

The first point made is that the appellant, if guilty at all, was guilty of the crime of embezzlement, and not of larceny.

The evidence shows that he boarded and lodged at the residence of the prosecuting witness on a farm, and that occasionally he did small jobs of work for said witness, such as feeding and caring for live stock, building fences, hauling manure and the like. During the temporary absence from home of the prosecuting witness, appellant, who remained on the farm with the family of the prosecuting witness, without the knowledge or consent of the prosecuting witness, or of any of his family, broke open a large box containing a lot of wheat belonging to the prosecuting witness, and removed some twelve bushels therefrom, which he hauled away and sold. Afterward, when charged with taking the wheat, he denied it.

Counsel for appellant contend that the appellant was the servant or employe of the prosecuting witness, that, as such servant or employe, he had access to the wheat, and that his felonious appropriation of the same fell within the provisions of § 2022 Burns 1894, defining the crime of embezzlement, the substance of which may be thus stated:

Every servant or employe of any person, who, having access to, control, or possession of, any article or thing of value to the possession of which his employer is entitled, shall, while in such employment, take, purloin, secrete, or in any way whatever appropriate to his own use any property, or thing of value belonging to, or held by, such person, in whose employment said servant or employe may be, shall be deemed guilty of embezzlement, and, upon conviction thereof, shall be imprisoned, etc.

The access to, control, or possession of property of the servant or employe intended by the statute, is such access to, control, or possession as arises from the nature of the employment with reference to the particular article of property feloniously appropriated. Something more than mere physical access, or opportunity of approach to the thing, is required. There must be a relation of special trust in regard to the article appropriated, and it must be by virtue of such trust that the servant has access to, or control, or possession of it. No such relation of trust exists between a farm hand and his employer, with reference to the master's wheat or other farm products with which the servant is not entrusted for the purpose of safekeeping, carriage, delivery, or sale. If such a servant feloniously purloins, secretes, or otherwise appropriates the property of the master, such taking is larceny, and not embezzlement.

Even where the servant has the care and oversight of property belonging to the master, the felonious appropriation of it by the servant is larceny. The law in such cases is thus stated by an eminent author:

"If a servant, who has merely the care and oversight of the goods of his master,--as the butler of plate, a messenger or runner of money or goods, a hostler of horses, the shepherd of sheep, and the like,--convert such goods to his own use, without his master's consent, this is a larceny at common law; because the goods, at the time they are taken, are deemed in law to be in the possession of the master, the possession of the servant in such a case being the possession of the master.

"Thus where A, going on a journey, left his shop in the care of the defendant under the superintendence of A's brother, and the latter, on account of the defendant's drunkenness, dismissed him; and A, on returning, found his goods missing, and pursuing the defendant, overtook him with some of them in his possession the court sustained a conviction. * * * The rule may be amplified by saying that where one having only the care, charge, or custody of property for the owner converts it animo furandi, it is larceny. * * * A clerk taking money or goods from his employer's safe, till, or shelves is guilty of larceny, unless it appear that he is specially authorized to dispose of such money or goods at his discretion." Wharton's Crim. Law (8th ed.), §§ 956, 957, 960.

It is said by the same author that, "Embezzlement is an intentional and fraudulent appropriation of the goods of another by a person intrusted with the property of the same. In the common law definition of larceny, we must remember there are two gaps through which, in the expansion of business, many criminals escaped. The first of these gaps is caused by the position that to maintain larceny it is necessary that the stolen goods should have been at some time in the prosecutor's possession. The second results from the assumption that when possession of goods is acquired bona fide by a bailee, no subsequent fraudulent conversion (unless there be breaking of bulk or some other rupture of the conditions of bailment) can be larceny while the bailment lasts. To cure these defects were passed the embezzlement statutes of England, and of most of the United States. These statutes were intended simply to establish two new cases of larceny. If a servant (and this is the first of the two) steals his master's goods ...