Dean v. The State
| Decision Date | 10 March 1897 |
| Docket Number | 18,152 |
| Citation | 46 N.E. 528,147 Ind. 215 |
| Parties | Dean v. The State |
| Court | Indiana Supreme Court |
From the Madison Circuit Court.
Affirmed.
W. A Kittinger, E. D. Reardon and A. J. Behymer, for appellant.
W. A Ketcham, Attorney-General, Merrill Moores, B. R. Call and D W. Scanlan, for State.
This was a prosecution by affidavit and information. The first and second counts of the information charged the crime of embezzlement and the third count the crime of grand larceny. A motion to quash each count was overruled. A trial by jury resulted in a verdict of guilty of embezzlement, and over a motion for a new trial, judgment was rendered against appellant.
The errors assigned call in question the action of the court in overruling the motion to quash the first and second counts of the information, and in overruling the motion for a new trial.
Appellant insists that the first and second counts of the information are based upon section 2023, Burns' R. S. 1894 (1945, R. S. 1881), and that both counts are bad for the reason that it is not alleged that appellant failed to pay over the money upon reasonable demand.
The first count in the information charges that appellant, being then and there the attorney and employe of Adaline Newton, for the converting of certain certificates of deposit into cash and transmitting a certain part thereof to the clerk of the Randolph Circuit Court, of the State of Indiana, to be applied upon a certain judgment of said court, and for the further purpose of looking after her, said Newton's, rights in relation thereto, said certificates and the proceeds thereof belonging to the said Adaline Newton, did then and there and thereby, and by virtue of such employment, take into his possession from the proceeds of said certificate, and while employed as aforesaid, a large sum of money, to-wit, the sum of one hundred dollars, the lawful and current money of the United States of America, said money being received for the purpose aforesaid, to the possession and ownership of which the said Adaline Newton was then and there lawfully entitled, but that said appellant did then and there unlawfully, feloniously and fraudulently take, purloin and appropriate to his own use the money aforesaid.
The second count is the same, except it charges the embezzlement of three certificates of deposit of the value of $ 105.00.
It is manifest that these counts of the information are not based upon said section, as insisted by appellant, but upon section 2022, Burns' R. S. 1894 (1944, R. S. 1881), under which section it was not necessary to allege or prove a demand.
Under said section, it is the taking, purloining, secreting, or otherwise appropriating the kind of property named, by any of the persons named that constitutes the crime; while under section 2023 (1945), supra, it is the fraudulent refusal by any of the persons named therein to pay over or deliver on reasonable demand that constitutes the crime.
In State v. Sarlls, 135 Ind. 195, at p. 198, 34 N.E. 1129, this court said:
Section 2022 (1944), supra, however, aims at a different class. Attorneys, clerks, employes, having the right to the possession of their employer's money or property only for the purpose of payment to some particular person for a certain purpose, or depositing it in a certain and designated place, or performing some other specific duty with reference thereto. State v. Sarlls, supra.
Under the allegations of the first and second counts of the information, appellant had no right to mix the money with his own, or with that of any other person; but his duty was to transmit the same to the clerk of the Randolph Circuit Court, without delay.
An attorney receiving money, or certificates of deposit, under the circumstances alleged, has no more right to mix the money with his own than he would have if he were not an attorney.
It is urged that said counts are not good under section 2022 (1944), supra, for the reason that it is not alleged that appellant was in the employment of Adaline Newton at the time of the alleged appropriation of her property. It is alleged that he was her attorney and employe when he took possession of the money and certificates of deposit, by virtue of said employment, and that he then and there unlawfully, feloniously and fraudulently took, purloined, secreted and appropriated the same to his own use. It clearly appears, we think, from the allegations in each count of the information, that appellant was in the employment of Adaline Newton at the time of the alleged embezzlement. It was not necessary to specifically allege that appellant had not transmitted the money to the clerk of the Randolph Circuit Court, or that he did not look after the rights of his employer.
The offense of embezzlement was charged in each of said counts substantially in the language of the statute, and the same were therefore sufficient. Ritter v. State, 111 Ind. 324, 326, 12 N.E. 501; Trout v. State, 111 Ind. 499, 502, 12 N.E. 1005; State v. Beach, ante, 74.
The court did not err in overruling the motion to quash. State v. Sarlls, supra.
It is not the law, as insisted by appellant, that if either the first or second count of the information is bad, that there should be a reversal. The rule is, that if there is a good and bad count charging embezzlement, and a general verdict of guilty of that crime, a valid judgment can be entered on the verdict which will be presumed in this court to have been entered upon the good count. Powers v. State, 87 Ind. 97.
One of the causes assigned for a new trial is, that the verdict is not sustained by the evidence. The correctness of this assignment depends upon the evidence, which is not in the record, and without which we cannot consider said cause for a new trial.
The evidence was taken down by a shorthand reporter, and it is sought to make the longhand manuscript of the evidence a part of the record, under section 1, of an act approved March 7, 1873. Acts 1873, p. 194. The record shows the bill of exceptions was signed by the trial judge June 19, 1896, and that the longhand copy of the evidence was filed in the clerk's office August 19, 1896, which was sixty days after the judge signed the bill. It is settled law in this State that the longhand copy of the evidence must be filed in the clerk's office before the bill of exceptions containing the same is signed by the judge, and this fact must be affirmatively shown by the record. Rogers v. Eich, 146 Ind. 235, 45 N.E. 93, and cases cited.
It is assigned as a cause for a new trial that the court erred in each of the instructions given to the jury of its own motion, and also erred in refusing to give each instruction requested by appellant.
The second instruction given by the court is a copy of section 2023 (1945), supra. The court in instruction five, informed the jury that no conviction could be had under said section for the reason that no demand was alleged in the first and second counts of the information.
The court was not required to read section 2023 (1945), supra, to the jury, for the reason that neither count of the information was based thereon, but having done so, there was no error in informing the jury that appellant could not be convicted under said section.
It was proper for the court to inform the jury upon what section the information was based, and the court was not required to read to the jury all the sections of the statute concerning embezzlement, and then submit to them the question as to which section the prosecution was based upon. The court could no more be required to do this than to admit all evidence offered, and then submit all questions of the competency of witnesses and admissibility of evidence to the jury for their determination.
It was said by this court, in Anderson v. State, 104 Ind. 467, on p. 477, 4 N.E. 63: ...
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