Colip v. State

• Citation: 55 N.E. 739,153 Ind. 584
• Parties: COLIP v. STATE.
• Decision Date: 14 December 1899
• Court: Supreme Court of Indiana

153 Ind. 584

55 N.E. 739

COLIP

v.STATE.

Supreme Court of Indiana.

Dec. 14, 1899.

Appeal from circuit court, Hamilton county; Fred. E. Hines, Judge.

Bert Colip was convicted of larceny, and he appeals. Affirmed.Stuart & Reagan, for appellant. John E. Garver, Pros. Atty., W. L. Taylor, Atty. Gen., Merrill Moores, and C. C. Hadley, for the State.

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 12 bushels therefrom, which he hauled away and sold. Afterwards, when charged with taking the wheat, he denied it. Counsel for appellant contends that the appellant was the servant or employé of the prosecuting witness, and that, as such servant or employé, he had access to the wheat, and that his felonious appropriation of the same fell within the provisions of section 2022, Burns' Rev. St. 1894, defining the crime of embezzlement, the substance of which may be thus stated: Every servant or employé 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 employé 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 employé, 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 intrusted 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 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 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.” Whart. Cr. 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...