Colvin v. State

• Decision Date: 13 March 1891
• Citation: 127 Ind. 403,26 N.E. 888
• Parties: Colvin v. State.
• Court: Indiana Supreme Court

127 Ind. 403

26 N.E. 888

Colvin

v.State.

Supreme Court of Indiana.

March 13, 1891.

Appeal from circuit court, Hamilton county; D. Moss, Judge.

Robert Graham and Joel Stafford, for appellant. S. D. Stuart and A. G. Smith, for the State.

McBRIDE, J.

This was a prosecution by information, charging appellant with embezzlement under section 1952, Rev. St. 1881. Appellant was convicted, and sentenced to one year's imprisonment in the state-prison. The errors assigned are: (1) Error in overruling motion to quash the affidavit and information; (2) error in overruling motion in arrest of judgment; (3) error in overruling motion for a new trial. The first two errors assigned challenge the sufficiency of the affidavit and information. The affidavit and information charge that the appellant was appointed guardian of one William S. Sedenburg on the 10th day of October, 1879, by the Hamilton circuit court; that he then and there collected and received money belonging to his said ward to the amount of $200, and other property also belonging to him; that said infant became 21 years of age on the 5th day of March, 1889, and on the 28th day of November, 1890, demanded a settlement with and accounting by his said guardian, and the payment of said money to him, but that said guardian failed and refused so to do, and unlawfully retained said money, and converted the same to his own use. All necessary technical averments are used, and the charges are sufficiently specific and full. The contention of appellant is that the conversion dates from the reception by the guardian of the money, and that the prosecution was barred by the statute of limitations. The prosecutor seems, in framing the affidavit and information, to have been impressed with the same idea, and inserted therein the following averment with a view to avoiding the statute: “That on or about the 15th day of September, 1880, the said George Colvin fled from the county of Hamilton, and so concealed himself that process could not be served upon him.” This, the prosecutor argues, is a sufficient compliance with section 1597, Rev. St. 1881, to avoid the operation of the statute. Section 1597 provides that “if any person who has committed an offense thereafter is absent from the state, or so conceals himself that process cannot be served upon him, or conceals the fact that the offense has been committed, the time of absence or concealment is not to be included in computing the period of...