Agar v. State

Decision Date20 April 1911
Docket Number21,636
Citation94 N.E. 819,176 Ind. 234
PartiesAgar v. The State of Indiana
CourtIndiana Supreme Court

Rehearing Denied June 28, 1911.

From Gibson Circuit Court; Herdis A. Clements, Judge.

Prosecution by The State of Indiana against Henry E. Agar. From a judgment of conviction, defendant appeals.


Lucius C. Embree and Morton C. Embree, for appellant.

James Bingham, Attorney-General, Sanford Trippet, Prosecuting Attorney, A. G. Cavins, E. M. White and W. H. Thompson, for the State.


Monks, J.

Appellant was convicted under § 2285 Burns 1908, Acts 1905 p. 584 § 392, of the crime of embezzlement. The assignment of errors calls in question the action of the court in overruling the motion to quash the indictment and the motion for a new trial. The indictment was in one count.

Appellant's first contention is that the following language in the indictment does not constitute a direct averment of any matter contained in it, and is not only merely a recital, but in some of its parts constitutes recitals within the general recital: "Being then and there the agent, clerk, servant and employe of the Central Trust and Savings Company of Evansville, Indiana, a corporation organized and doing business under the laws of the State of Indiana, and having then and there, by virtue of said employment as such agent, clerk, servant and employe, the control and possession of one bank check executed by C. O. Baltzell, in the sum of $ 515.20, dated August 15, 1906, drawn on the Citizens Bank, of Princeton, Indiana, and payable to the order of Henry E. Agar, secretary, which check was then and there the property of said trust company, and of the value of $ 515.20, to the possession and ownership of which said check said trust company was then and there entitled."

The contention of appellant rests on the ground that "the statements following the words 'being' and 'having' in said indictment are mere recitals, and must be disregarded." If what follows said words "being" and "having" must be disregarded, it is evident that the court erred in overruling the motion to quash.

It has been held in many cases, however, that the allegation that "A, being an officer," etc., or "being an employe," etc., is a sufficient averment that he is an officer or employe.

In the case of Rex v. Somerton (1827), 7 B. & C. 463, 14 Eng. Com. Law 210, the indictment charged that defendant, "being the servant of Joseph Hellier, on the same day, etc., feloniously did steal one gold ring then and there being in the possession of said Hellier, and being his goods and chattles." This indictment was held good. The court said: "It is impossible that any person who reads this indictment can doubt that it imports that Mary Somerton was the servant of Hellier when she stole the property. I agree that we cannot by intendment or argument supply any thing which goes to constitute the guilt of the prisoner, or which may warrant a specific punishment in any particular case; but we must read and understand the language used in indictments as the rest of mankind would understand the same language, if used in other instruments, with the exception of those cases where the law requires technical terms to be used, as in the case of murder. If we were to hold that the allegation that on such a day the prisoner, being the servant of J. Hellier, did on the same day steal the goods of J. Hellier, did not import that she stole his goods at the time when she was his servant, we would expose ourselves to that reproof expressed by a very learned and very humane judge, viz., that it is a disgrace to the law, that criminals should be allowed to escape by nice and captious objections of form."

In the case of Rex v. Bootie (1759), 2 Burr. 864, the indictment, alleging that the defendant, being one of the constables, etc., and being in the execution of his said office did wilfully and unlawfully suffer Margaret Prince, being a loose, idle, lewd and disorderly person, to escape his custody, was held good.

In the case of Rex v. Lawley (1731), 2 Stra. *904, an indictment charging that the defendant, "knowing that Crookes had been indicted, and was to be tried," attempted to persuade a witness not to appear, was held sufficient.

In the case of King v. Moor (1688), 2 Mod. *128, the information charging "that the defendant, being above the age of fourteen years, did take a young maid away unmarried," was held good.

In the case of Rex v. Boyall (1759), 2 Burr. 832, 834, the indictment charged that Mawby, "being then and there the surveyor of the highways did," etc. It was held that "'being' is a sufficient averment."

In the case of Rex v. Ward (1727), 2 Ld. Raym. 1461, 1466, 1468, an indictment charging that the defendant, "onerabilis existens ad deliberandum 315 tons of alum to the Duke of Buckingham, ad certum dies jam praeteritum, he, said defendant, contriving and intending said Duke of said alum to defraud, etc., forged the indorsement," was held good. See, also, Rex v. Aylett (1785), 1 T. R. 63.

In the case of People v. Hatch (1910), 13 Cal.App. 521, 109 P. 1097, 1100, 1101, it was urged that "the fact that the defendant was the agent, attorney and trustee of Mrs. Sage, and that he had possession of and was intrusted with her money as such agent, attorney and trustee, is not alleged in direct and positive terms, but only in the participial form." The part of the indictment was that the defendant, "being then and there the agent, attorney, and trustee of one Sarah E. Sage, and being then and there intrusted with and having in his control and custody * * * as such attorney, agent, and trustee," etc. The court held that the use of the participial form of averment did not render the indictment defective.

In the case of State v. Scoggin (1907), 85 Ark. 43, 47, 106 S.W. 969, the indictment charged that the defendant, "being the agent of the * * * and having then and there in his custody and possession as such agent, as aforesaid, * * * did," etc. This is substantially the same as the charge in the case before us, and the court held that it sufficiently charged that the defendant was the agent, and that he had possession of the funds alleged to have been embezzled by virtue of his employment as agent.

In the case of State v. Manley (1891), 107 Mo. 364, 17 S.W. 800, it was held that an indictment charging "that James Manley, * * * then and there being an officer duly elected by virtue of the law of the State of Missouri, to wit, a constable," sufficiently avers that defendant was an officer.

In the case of State v. Fogerson (1860), 29 Mo. 416, an indictment which charged that the defendant did disturb the peace "by then and there cursing and swearing, and by. loud and abusive and indecent language," was held good.

In the case of State v. Bloor (1898), 20 Mont. 574, 52 P. 611, it was said that "a material averment may sometimes be introduced with as much clearness and certainty by means of the participial clause, commenced by the word 'being,' as in the form of a direct proposition of a declarative sentence."

In the case of Commonwealth v. Creed (1857), 74 Mass. 387, an indictment charging the defendant with "then and there being armed with a dangerous weapon, to wit, a gun, * * * an assault did make * * * by * * * discharging said gun at said Quinn, and * * * beating, bruising and wounding the said Quinn with said gun," was held good.

In the case of State v. Boncher (1884), 59 Wis. 477, 18 N.W. 335, where the indictment charged that the persons therein named, to whom the defendant sold liquors, "who being minors," it was held sufficient. The court said: "Had the word 'they' been employed instead of 'who,' there could be no doubt of the sufficiency of the averment."

In the case of People v. Hamilton (1893), 32 P. 526, an information alleged that the defendant, "having heretofore" been a county clerk and charged with the safe-keeping, etc., of the public funds, and his official term having expired, he wilfully omitted to pay them over to his successor. It was held good.

In the case of Battrell v. Ohio River R. Co. (1890), 34 W.Va. 232, 12 S.E. 699, 11 L. R. A. 290, where the question of participles and recitals is discussed, the court said: "The first assignment of error is that the court overruled a demurrer to the declaration. Counsel for appellant points out as a defect in the declaration the fact that, by way of recital, it alleges: 'The plaintiff being then and there, and still being, owner in fee of the land in said alley, to the median line thereof, and the plaintiff, by reason of the acts and doings aforesaid of the defendant, being cut off and deprived of access to the back part of his said lot over and by means of said alley;' whereas it should have positively and directly made those averments, because it is a general rule of pleading that whatever facts are necessary to constitute the cause of action must be directly and distinctly stated. 3 Rob. Pr. (new) 530; Burton & Co. v. Hansford [1877], 10 W.Va. 470, 27 Am. Rep. 571. The rule of pleading forbidding the statement of facts constituting the cause of action with a quod cum, that is, 'for that whereas,' which is purely by way of recital, is centuries old, and, though technical and in my judgment a stigma upon the common law, has been persistently insisted upon in early Virginia cases. * * * But I do not regard the present case as falling under this objection. The technical rule just spoken of was applicable to the case of the quod cum, 'whereas,' when used in the statement of the facts constituting the cause of action. Objectionable as it is, it should not be extended to cases not clearly within it to the defeat of justice. The language objected to is: 'The plaintiff being then...

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