Davis v. State
| Decision Date | 19 May 1925 |
| Docket Number | No. 24621.,24621. |
| Citation | 196 Ind. 213,147 N.E. 766 |
| Parties | DAVIS v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Jasper County; Geo. A. Williams, Judge.
Ralph M. Davis was convicted of embezzlement, and appeals. Affirmed.Hanley & Hanley and Abraham Halleck, all of Rensselaer, for appellant.
U. S. Lesh, Atty. Gen., and Mrs. Edward F. White, Deputy Atty. Gen., for the State.
Appellant was convicted of the crime of embezzlement, under section 2285, Burns' 1914 (Acts 1905, c. 169, § 392), part of which section is as follows:
“Every officer, agent, attorney, clerk, servant or employee 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 employee may be, shall be deemed guilty of embezzlement.”
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 impaneled, 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 & Deposit State Bank, Citizens' State Bank, Farmers' State Bank, Bank of Brook, Bank of Mt. Ayr, First National Bank, and various 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 guaranty fund of $200,000. That the form of subscription signed by the subscribers to said fund was as follows:
“Subscription for a Guaranty Fund.
-County.
In consideration that the directors of the Indiana Federation of Farmers' Associations are raising a guaranty fund of $200,000 to secure a permanent organization of farmers for at least three years, to have funds to find out wrongs and correct wrongs, to promote the interests of the farmers, and the welfare of the people generally, I will pay in cash to this fund - dollars.
-.
(Name.)
-.
(Post Office.)
-, -.
(County.)
Received -.
That 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, Ind., wrote a letter to W. T. Cory at Goodland, Ind., who was secretary of said Newton County Farm Bureau in 1919, in which letter he stated:
“The following is a list of the amounts which I sent to the Indiana Federation of Farmers and the dates on which they were sent: October 15, 1919, $1,452.00; October 17, 1919, $261.50; January 4, 1920, $786.50-guaranty fund total $2,500.00.”
That said Indiana Federation of Farmers' Associations 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 which the indictment is based, the owner of property subject to embezzlement is described as “any person, firm, corporation or association.”
The indictment under consideration does not state that the Newton County Farm Bureau is either a firm, a corporation, or an association. In several states, under statutes defining and punishing embezzlement of the property or money of an individual, corporation, or partnership, and the like, the courts have decided that the indictment or information must allege that the property or money belonged to an individual, corporation, or partnership, as the case may be.
In Wharton's Criminal Procedure (10th Ed.) § 592, in speaking of embezzlement, it is said:
[1] In this state, an unincorporated lodge or society is an “association” within the statute, so as to make its treasurer liable for the embezzlement of its funds in his hands. Laycock v. State (1897) 136 Ind. 217, 36 N. E. 137. Section 2061, Burns' 1914, being one of the rules by which the rules of criminal pleadings are to be determined, is as follows:
“When any offense is committed upon or in relation to any property belonging to partners, or to several joint owners, or which, when the offense was committed, was in possession of a bailee or tenant, the indictment or affidavit for such offense shall be deemed sufficient, if it allege the ownership of such property to be in such partnership by its firm name, or in any one of such partners, owners, bailors or bailees, tenant or tenants, without naming all of them.”
In Laycock v. State, supra, the owner of the money alleged to have been embezzled was named as “Hoosier Lodge No. 261, Brotherhood of Railroad Trainmen.” A motion to quash the indictment was overruled, but no exception was taken to the ruling thereon, and on appeal no question arose on said ruling. A motion in arrest of judgment was overruled. In Frost v. State (1912) 178 Ind. 305, 99 N. E. 419, the owner was named as “Clay Encampment Independent Order of Odd Fellows, No. 165.” In the affidavit, it was not shown whether said name represented a corporation or an association. In ruling on the sufficiency of the affidavit, this court did not mention that matter.
Joyce on Indictments (2d Ed.) § 459, says:
“The general rule as to charging a purely statutory offense is subject to the qualification, declared to be fundamental in the law of procedure, that the accused must be apprised by the indictment, with reasonable certainty of the nature of the accusation against him, so that he may prepare his defense and plead the judgment as a bar to a subsequent prosecution for the same offense.”
[2] An averment that the injured party was a firm, corporation, or association was not necessary to enable defendant to prepare his defense, and said omission could not in any manner prejudice the substantial rights of the defendant upon the merits of the cause. The name, “Newton County Farm Bureau,” imports a corporation or an association. It could be either. And it is not necessary that there be a statement in the indictment as to which it is.
[3] Although appellant claims otherwise, we believe the indictment clearly shows that he was treasurer of the Newton County Farm Bureau, that he had possession and control of the money alleged to have been embezzled because of being...
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