Agar v. State

• Decision Date: 20 April 1911
• Docket Number: No. 21,636.,21,636.
• Citation: 94 N.E. 819,176 Ind. 234
• Parties: AGAR v. STATE.
• Court: Indiana Supreme Court

176 Ind. 234

94 N.E. 819

AGAR

v.STATE.

No. 21,636.¹

Supreme Court of Indiana.

April 20, 1911.

Appeal from Circuit Court, Gibson County; Oscar M. Welborn, Judge.

Henry E. Agar was convicted of embezzlement, and he appeals. Affirmed.Embree & Embree, for appellant. James Bingham, Sanford Trippet, Alexander G. Cavins, Edward M. White, and William H. Thompson, for the State.

MONKS, J.

Appellant was convicted of the crime of embezzlement under section 2285, Burns 1908. 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.

[1] Appellant's first contention is that the following language in the indictment, namely: “Being then and there the agent, clerk, servant, and employé of the Central Trust & Savings Company of Evansville, Ind., 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 employé, 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, Princeton, Ind., and payable to the order of Henry E. Agar, secretary, which said 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”—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.

The contention of appellant rests upon 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 employé, etc.,” is a sufficient averment that he is an officer or employé.

In Rex v. Somerton, 7 B. & C. 463, 14 Eng. Com. L. 210, the indictment charged that the defendant, etc., “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 chattels.” This indictment was held good. The court said: “It is impossible that any one 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 anything 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 the 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 to form.”

In Rex v. Bootie, 2 Burr. 866, the indictment charged that the defendant, “being one of the constables, etc., and being in the execution of his said office, did willfully and unlawfully suffer Margaret Prince, being a loose, idle, lewd, and disorderly person, to escape his custody.” The indictment was held good.

In Rex v. Lawly, 2 Stra. 904, an indictment which charged that the defendant “knowing that Crookes had been indicted, and was to be tried,” did attempt to persuade witness not to appear, was held sufficient.

In King v. Moor, 2 Mod. 129, where the information charged “that the defendant, being above the age of 14 years, did take a young maid away unmarried, etc.,” it was held good.

In Rex v. Boyall, 2 Burr. 832, 834, the indictment charged that Mawby, “being then and there the surveyor of the highways, did, etc.” It was held “being is a sufficient averment.”

In Rex v. Ward, 2 Raym. 1461, 1466–1468, an indictment which charged that the defendant,“onerabilis existens ad deliberandum 315 tons of allum to the Duke of Buckingham, ad certum dies jam præteritum, he, the said defendant, contriving and intending the said duke of the said allum to defraud, etc., forged the indorsement,” etc., was held good. See, also, Rex v. Aylett, 1 T. R. 70.

In People v. Hatch, 13 Cal. App. 521, 529, 109 Pac. 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 and was intrusted with her money as such agent, attorney, and trustee, is not alleged in direct and positive terms, but only in the practical 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., etc.” The court held that the use of the participial form of averment did not render the indictment defective.

In State v. Scoggins, 85 Ark. 43, 47, 106 S. W. 969, 970, the indictment charged that the defendant, “being the agent of the *** and having then and there in his possession and custody as such agent as aforesaid.” This is substantially the same as the charge in the case before us, and the court held the same 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 State v. Manley, 107 Mo. 364, 17 S. W. 800, it was held that an indictment which charges “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 the defendant was an officer.

In State v. Fogerson, 29 Mo. 416, an indictment which charged that the defendant did disturb the peace, etc., “by then and there cursing and swearing and by loud and abusive and indecent language” was held good.

In State v. Bloor, 20 Mont. 574, 52 Pac. 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 Comm. v. Creed, 74 Mass. 387, an indictment which charged the defendant with “being then and there armed with a dangerous weapon, to wit, a gun, etc., did make an assault, *** by discharging said gun at said Quinn *** and beating, wounding, and bruising and wounding said Quinn with said gun,” was held good.

In State v. Boncher, 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 ‘they’ been employed instead of ‘who,’ there could be no doubt of the sufficiency of the averment.”

In People v. Hamilton (Cal.) 32 Pac. 526, an information, which 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 willfully omitted to pay them over to his successor, was held good.

In Battrell v. Ohio River Railroad Co., 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 point out as a defect in the declaration that, by way of recital, it alleges: ‘The plaintiff being then and there, and still being, owner 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 v. Hansford, 10 W. Va. 470 . 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 opinion 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 and there, and still being, the owner, *** and the plaintiff, by reason of the acts and doings aforesaid of the said defendant, being cut off and deprived of access to the back of his said lot over and by means of said alley.’ Here the statement is not under a whereas, nor exactly by any mode of recital, and is only less direct and positive in statement by reason of the use of the participle ‘being,’ instead of using the imperfect and present tenses of the indicative mode of the verb ‘to be,’ so as to read, ‘The plaintiff was then and there, and still is, owner in fee,’ and the perfect tense, ‘has been,’ where the word ‘being’ occurs in...