Davis v. State
| Decision Date | 19 May 1925 |
| Docket Number | 24,621 |
| Citation | 147 N.E. 766,196 Ind. 213 |
| Parties | Davis v. State of Indiana |
| Court | Indiana Supreme Court |
1. EMBEZZLEMENT.---If the name of a society whose funds are embezzled imports an association it is not necessary to allege it.---Where the name of a society which is averred to be the owner of funds alleged to be embezzled, imports a corporation or an association, it is not necessary that there be a statement in the indictment as to which it is. p. 218.
2 EMBEZZLEMENT.---Indictment held to sufficiently show official character of accused.---An indictment which charges embezzlement by the treasurer of a Farm Bureau, and avers that the funds came into his possession "by virtue of being treasurer of" the said Bureau, sufficiently shows that he was treasurer and had possession of the funds by reason of that fact (Agar v. State, 176 Ind. 234 distinguished). pp. 220, 221.
3. INDICTMENT.---Imperfection in indictment not tending to prejudice defendant, is not fatal.---An indictment for embezzlement which in charging possession of the funds alleged to be embezzled, omitted the word "had" in a phrase which then read "did then and there receive and take into his possession of which he access to and control of," is not invalid, since it did not tend to prejudice the accused, and is such an imperfection as is contemplated in 2225 Burns 1926, 2063 Burns 1914. p. 220.
4. EMBEZZLEMENT.---Description of checks held sufficient.---In an indictment for embezzlement the description of the funds stolen as checks on named banks, signed by various members of a Farm Bureau and made payable to said bureau for its use and delivered to accused as treasurer of said bureau identifies the funds. p. 221.
5. INDICTMENT.---Sufficient if it apprises defendant of the charge against him.---The true test of the sufficiency of an indictment is whether the material averments thereof are stated with such certainty as to apprise the defendant of the nature and cause of the charge against him. p. 222.
6. EMBEZZLEMENT.---Absolute title to property embezzled not necessary.---Under the statute upon which a charge of embezzlement was based (2470 Burns 1926, 2285 Burns 1914) it is not necessary to allege that the owner of the property alleged to have been embezzled had an absolute title to the property, but it may be qualified, special or constructive. p. 222.
7. EMBEZZLEMENT.---Distinction between embezzlement and larceny is the rightfulness of original possession.---Where defendant is accused of taking money in the form of checks which come into his possession as treasurer of a Farm Bureau clothed with a special trust as to the application of such funds, the charge is embezzlement and not larceny. p. 223.
8. VENUE.---May be proved by inferences from facts and circumstances.---If sufficient facts and circumstances are proved from which the place of the commission of the crime charged may be inferred, the venue is sufficiently proved. p. 223.
9. CRIMINAL LAW.---An instruction based upon an imperfect but valid indictment, is good.---The giving of an instruction based upon the indictment which corrects the omission of a word therein, is not error, where the indictment itself is not vitiated by the omission. p. 224.
10. CRIMINAL LAW.---Instruction as to quality of ownership of property embezzled, held correct.---An instruction in embezzlement that if proof showed ownership of the money as bailee it would be sufficient, is not objectionable. p. 224.
11. EMBEZZLEMENT.---Evidence to prove considered and held sufficient.---Evidence that accused solicited and secured checks from individuals for a Farm Bureau of which he was treasurer, to be used in financing a large Farmers' Federation, and that he failed to account for a large part of such subscriptions, is sufficient proof of embezzlement. p. 225.
From Jasper Circuit Court; George A. Williams, Judge.
Ralph M. Davis was convicted of embezzlement and he appeals.
Affirmed.
Hanley & Hanley and Abraham Halleck, for appellant.
U. S. Lesh, Attorney-General, and Mrs. Edward Franklin White, Deputy Attorney-General, for the State.
Appellant was convicted of the crime of embezzlement, under § 2470 Burns 1926, § 2285 Burns 1914 (Acts 1905 p. 584, § 392), part of which section is as follows: "Every officer, agent, attorney, clerk, servant or employe of any person, firm, corporation or association, who, having access to, control or possession of, any money, 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, or to the use of others, or who shall knowingly permit any other person to take, purloin, secrete, or in any way appropriate to his own use, or to the use of others, any money, coin, bills, notes, credits, choses in action or other property or article of value belonging to or deposited with or held by such person, firm, corporation or association in whose employment such officer, agent, attorney, clerk, servant or employe may be, shall be deemed guilty of embezzlement," etc.
The indictment, omitting the formal parts, is as follows: "The Grand Jurors of Newton county, in the State of Indiana, good and lawful men duly and legally impanneled charged and sworn to inquire into felonies and certain misdemeanors in and for the body of said county of Newton, in the name and by the authority of the State of Indiana, on their oath present, that one Ralph M. Davis, late of said county, on the 19th day of October, A. D. 1919 at said county of Newton and State aforesaid did, then and there and there receive and take into his possession of which he access to and control of by virtue of being treasurer of the Newton County Farm Bureau, various sums of money, said money being lawful and current money of the United States of America, and checks drawn on the Kent State Bank, Discount and Deposit State Bank, Citizens State Bank, Farmers State Bank, Bank of Brook, Bank of Mt. Ayr, Firs National Bank, and varuois other banks all within said county, each of said checks being separately signed by various members of said Newton County Farm Bureau and made payable to the said Ralph M. Davis for and in behalf and for the use of the said Newton County Farm Bureau by virtue of his said office, and while acting as said treasurer as aforesaid, did receive the sum of fourteen hundred and fifty two dollars, to which the possession and ownership the said Newton County Farm Bureau was then and there lawfully entitled, and did during his said tenure of office then and there feloniously and fraudulently take, purloin, secrete and appropriate to his own use the money and checks as aforesaid, by him received, 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 uncontradicted evidence in this cause shows that in the years 1919 and 1920, the Newton County Farm Bureau attempted to secure from its members and nonmembers the sum of $ 2,500 for the Indiana Federation of Farmers' Associations, which was trying to raise a guarantee fund of $ 200,000. That the form of subscription signed by the subscribers to said fund was as follows:
The appellant was treasurer of said Newton County Farm Bureau. That the payments of the subscriptions to said fund were made to him. That in one of the books, in which he kept records as treasurer of said farm bureau, appeared the following entry: That on July 2, 1920, appellant, from Morocco, Indiana, wrote a letter to W. T. Cory at Goodland, Indiana, who was secretary of said Newton County Farm Bureau in 1919, in which letter he stated:
That said Indiana Federation of Farmers' Association received from appellant of said sum only $ 1,048. That there was included in what was so received the sum of $ 799.50, which the said Newton County Farm Bureau appropriated from its general fund to said fund. That the Newton County Farm Bureau had members, officers and directors.
On appeal, one of the assignments of error is that the court erred in overruling appellant's motion to quash the indictment. The causes set out in the motion to quash are, that the facts stated in the indictment do not constitute a public offense and, that the indictment does not state the offense with sufficient certainty.
Appellant claims that the indictment is insufficient because it is not stated therein whether the Newton County Farm Bureau is a corporation, an association of individuals, a copartnership or some other entity. In the quoted law, upon...
To continue reading
Request your trial
-
State v. O'Connor
... ... and to enable the jury to discern that the property proved to ... have been feloniously taken is the same which is mentioned in ... the indictment." United States v. Jones (D.C.) ... 69 F. 973, 982. See also 8 Standard Proc. p. 231; Davis ... v. State, 196 Ind. 213, 147 N.E. 770 ... The ... authorities generally recognize that in an indictment against ... a public officer or an officer of a corporation, greater ... latitude is permitted "in the description of the money ... or funds embezzled." People v ... ...
- Davis v. State