Collins v. State

• Decision Date: 02 June 1921
• Docket Number: 23,812
• Citation: 131 N.E. 390,192 Ind. 86
• Parties: Collins v. State of Indiana
• Court: Indiana Supreme Court

131 N.E. 390

192 Ind. 86

Collins v. State of Indiana

No. 23,812

Supreme Court of Indiana

June 2, 1921

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Rehearing Denied May 12, 1922.

From Rush Circuit Court; John W. Craig, Special Judge.

Prosecution by the State of Indiana against Cecil B. Collins. From a judgment of conviction, the defendant appeals.

Affirmed.

Young & Young and Meyers, Gates & Ralston, for appellant.

U. S. Lesh, Attorney-General, Edward M. White, and George L. Folan, for the state.

Travis, J. Townsed, C. J., Willoughby, Ewbank, JJ., concur in conclusion. Myers, J., dissents.

OPINION

Travis, J.

This is a criminal prosecution upon an indictment which charges embezzlement by the clerk of the Shelby Circuit Court, in violation of § 391, Acts 1905 p. 671, § 2284 Burns 1914.

The facts of the case are best set forth in the indictment which is in two counts as follows, except the formal part to wit:--

"The Grand jurors of Shelby County, in the State of Indiana, good and lawful men, duly and legally impanelled charged and sworn to inquire into felonies, and certain misdemeanors in and for the body of said County of Shelby in the name and by the authority of the State of Indiana, on their oaths present that on the third day of November, A. D. 1914, Cecil B. Collins was elected Clerk of the Circuit Court of Shelby County, Indiana, for the term of four years, ending on the first day of January, A. D., 1919; that the said Cecil B. Collins, being duly commissioned gave bond and duly qualified and entered upon the discharge of the duties of said office aforesaid on the first day of January, A. D., 1915; that the said Cecil B. Collins on the sixth day of March, 1918, signed his written resignation to the Board of County Commissioners of Shelby County, Indiana, and the same was filed with and accepted by the said Board of County Commissioners of Shelby County, Indiana, on the seventh day of March A. D., 1918; that one Gordon Thurston was on the seventh day of March, A. D. 1918, duly and legally appointed to the said office of Clerk of the Circuit Court of Shelby County, Indiana, by the Board of County Commissioners of said County for the unexpired term aforesaid and was duly commissioned, and on the seventh day of March, A. D. 1918, duly qualified and gave bond, and then and there duly entered upon the discharge of the duties of his said office as the successor of said Cecil B. Collins, the then incumbent, that the said resignation of the said Cecil B. Collins, having been filed with and accepted by said Board of County Commissioners as above stated and the said Cecil B. Collins had surrendered his said office; that at the time of the surrender of said office to the said Gordon Thurston, the said Cecil B. Collins had in his hands as such Clerk of the Circuit Court of Shelby County, the sum of $ 3,009.22, which had come into his hands by virtue of his said office, and which was then and there due from the said Cecil B. Collins, as Clerk aforesaid, to his successor in office, the said Gordon Thurston; that the said Cecil B. Collins as Clerk aforesaid during the term for which he was elected, on the seventh day of March A. D., 1918, was legally required by the said Gordon Thurston, to account for, deliver and pay over to him the same, all monies, choses in action, and other property which had come into the hands of the said Cecil B. Collins by virtue of his said office and that the said Cecil B. Collins did then and there, unlawfully, feloniously and fraudulently fail and refuse to deliver and pay over the said sum or any part thereof to the said Gordon Thurston, although the said Gordon Thurston was lawfully entitled to receive the same, and was ready and willing to receive said sum of money."

Second Count.

"For further and second count to said indictment the Grand Jurors aforesaid, upon their oaths aforesaid, in the name and by the authority of the State of Indiana, on their oaths present that on the third day of November, A. D. 1914, Cecil B. Collins was elected Clerk of the Circuit Court of Shelby County, Indiana, for the term of four years, ending on the first day of January, A. D., 1919; that the said Cecil B. Collins, being duly commissioned gave bond and duly qualified and entered upon the discharge of the duties of said office aforesaid, on the first day of January, A. D. 1915, that the said Cecil B. Collins on the sixth day of March, A. D., 1918, signed his written resignation to the Board of County Commissioners of Shelby County, Indiana, and the same was filed and accepted by the said Board of County Commissioners of Shelby County, Indiana, on the seventh day of March, A. D., 1918; that one Gordon Thurston was on the seventh day of March, A. D. (1918), duly and legally appointed to the said office of Clerk of the Circuit Court of Shelby County, Indiana, by the Board of County Commissioners of said County for the unexpired term aforesaid and was duly commissioned, and on the seventh day of March, A. D. 1918, duly qualified and gave bond, and then and there duly entered upon the discharge of the duties of his said office as the successor of said Cecil B. Collins, the then incumbent, that the said resignation of the said Cecil B. Collins having been filed with and accepted by said Board of Commissioners as above stated and the said Cecil B. Collins had surrendered his said office; that at the time of the surrender of said office to the said Gordon Thurston, the said Cecil B. Collins had in his hands as such Clerk of Circuit Court of Shelby County, Indiana, the sum of $ 4,009.22, which had come into his hands by virtue of his said office, and which was then and there due from the said Cecil B. Collins, as Clerk aforesaid, to his successor in office, the said Gordon Thurston; that the said Cecil B. Collins did then and there, unlawfully, feloniously and fraudulently fail, neglect and refuse to pay over the said sum or any part thereof to the said Gordon Thurston, although the said Gordon Thurston was entitled to receive the same, and was ready and willing to receive said sum of money, contrary to the form of the Statute in such cases made and provided and against the peace and dignity of the State of Indiana."

The trial of the accused upon his plea of not guilty, resulted in a verdict of guilty by the jury, and a sentence of imprisonment, fine and disfranchisement.

The accused filed a motion for a new trial, which was overruled, and he appealed from the judgment of the trial court to this court. The errors pleaded in the appeal are: 1. The trial court erred in overruling the motion to quash the indictment; 2. The facts stated in the first count of the indictment do not constitute a public offense; 3. The facts stated in the second count of the indictment do not constitute a public offense; 4. The trial court erred in overruling the motion by the accused for a new trial.

The motion for a new trial is composed of fifteen specifications of error, but the presentation by appellant in his brief has limited the matters to be reviewed upon this appeal, to the questions:

1. The overruling of the motion to quash the indictment. 2. The refusal by the trial judge to give the peremptory instruction to the jury to acquit, and for erroneously giving the jury instruction No. 11. 3. The act is in violation of the Fourteenth Amendment of the Constitution of the United States.

While the point is made in appellant's brief that the statute is violative of the Fourteenth Amendment to the Federal Constitution, and that the construction heretofore given of the statute by this court, is violative of § 13 of the Bill of Rights of Indiana, which will be considered in this opinion, counsel for appellant in an elaborate brief, and by an argument pregnant with legal ingenuity, has contracted the whole case into one point: That of demand by the successor in office upon the retiring officer for the money belonging to the office, before the indictment of such retiring officer, and the pleading and proof of such demand. Although this court, as well as the Courts of Appeal of nearly all the states of the United States, and of Great Britain, have passed upon the points involved here in a more general manner; the question here with its ramifications is finely drawn, and deserves to be distinguished from the other cases in point.

Much has been written in the opinions of the courts of Great Britain and of the state and federal courts here, about the institution of the crime of embezzlement; in that it was not an offense known to the common law, and hence not entirely amenable to common-law rules of construction. The institution of conversion, of misappropriation, as a crime--named embezzlement--was in a sense looked upon at first in the United States as another invasion of the constitutional privileges and immunities of its citizens. By legislation first in this state, it was made a crime for a treasurer of a Plank Road Company to convert to his own use money belonging to the company which contained the clause, that a "neglect to pay over on demand * * * Shall be deemed prima facie evidence that he has embezzled * * *," Acts 1852, ch. 80, 1 R. S. 1852 p. 394-399. This act of the legislature seems to be the first direct legislation making the crime of embezzlement, although in former statutes, failure of certain school officials to comply with the law which regulated their administration of the office, together with the proper expenditure of money, subjected such official to a fine.

In 1855 there followed another law which pertained directly to any...