Frost v. State

• Decision Date: 08 October 1912
• Docket Number: 22,150
• Citation: 99 N.E. 419,178 Ind. 305
• Parties: Frost v. State of Indiana
• Court: Indiana Supreme Court

99 N.E. 419

178 Ind. 305

Frost v. State of Indiana

No. 22,150

Supreme Court of Indiana

October 8, 1912

From Clay Circuit Court, John M. Rawley, Judge.

Prosecution by the State of Indiana against Merle L. Frost. From a judgment of conviction, the defendant appeals.

Affirmed.

C. G Scofield, A. C. Miller and A. W. Knight, for appellant.

Thomas M. Honan, Attorney-General, Thomas H. Branaman, Edwin Corr and James E. McCullough, for the State.

OPINION

Cox, C. J.

After a trial by jury, appellant was convicted of embezzlement on a charge presented by an affidavit, the material parts of which read as follows: "That at said County of Clay, on or about the 24th day of March, 1910, one Merle L. Frost, was then and there Treasurer of Clay Encampment Independent Order of Odd Fellows No. 165, and as such treasurer then and there had control and possession of thirteen hundred and twenty-six dollars and seventy-eight cents of money, the property of the said Clay Encampment Independent Order of Odd Fellows No 165, to the possession of which money the said Clay Encampment Independent Order of Odd Fellows No. 165, then and there was entitled; that the said Merle L. Frost while the treasurer of the said Clay Encampment Independent Order of Odd Fellows No. 165 and in the possession and control of such money as aforesaid, did then and there, unlawfully, feloniously and fraudulently, without the consent of said Clay Encampment Independent Order of Odd Fellows No. 165, purloin, secrete, embezzle and appropriate to his own use all of said 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."

Proper assignments of errors raise the question whether the affidavit is sufficient to charge the crime of embezzlement as defined by § 392 of the crimes act of 1905 (Acts 1905 p. 584, § 2285 Burns 1908). This is the sole question presented for determination by this appeal.

It is claimed by counsel for appellant that the omission from the affidavit of the direct averment that appellant held the control and possession of the money, alleged to have been converted by him, "by virtue of his employment" as treasurer of Clay Encampment, makes the affidavit fatally defective as a charge of the crime of embezzlement.

In the case of Ritter v. State (1887), 111 Ind. 324, 12 N.E. 501, the indictment charged that defendant was "an employe of one John McCarter," and that "as such employe" he had control and possession of certain money of McCarter. While the point was not raised or decided, a doubt was suggested, in the opinion of the court, of the sufficiency of these allegations to show that defendant's possession of the converted money was by virtue of his employment. It was therein said: "It is doubtful whether the indictment under consideration does, or does not, show with sufficient certainty that appellant, by virtue of his employment, was intrusted with the money upon which the charge of embezzlement against him is predicated."

In Colip v. State (1899), 153 Ind. 584, 55 N.E. 739, 74 Am. St. 322, it was held that "the access to, control, or possession of property of the servant or employe intended by the statute, is such access to, control, or possession as arises from the nature of the employment with reference to the particular article of property feloniously appropriated. Something more than mere physical access, or opportunity of approach to the thing, is required. There must be a relation of special trust in regard to the article appropriated, and it must be by virtue of such trust that the servant has access to, or control, or possession of it."

In State v. Winstandley (1900), 154 Ind. 443, 57 N.E. 109, which was a prosecution for fraudulently receiving deposits in an insolvent bank, the indictment charged that Winstandley was president and Frederick, the other defendant, cashier of a certain bank, and it was then charged "that they, the said Isaac S. Winstandley and Clarence J. Frederick, each then and there well knowing the insolvency of said New Albany Banking Company did then and there unlawfully," etc., receive deposits. In holding that the indictment was properly quashed, it was said: "Whether or not appellees received the money in their official capacity is left to conjecture. The indictment states that appellees were president and cashier of the bank; that the bank was insolvent, etc.; and that appellees received from the F. Wunderlich Company a certain sum of money as a deposit with the bank, etc. There is no averment that the money was received by them in their official capacity. Nor are there allegations from which such fact would follow as an inevitable conclusion. For aught that appears in the indictment, appellees may have received, at their homes, or on the street, the money of the F. Wunderlich Company as a deposit with the bank--and the bank may never have received it. It may also be conjectured that the bank received the money through appellees as its officers. But accused persons are not to be arraigned on conjectures."

The case of State v. Winstandley (1900), 155 Ind. 290, 58 N.E. 71, was a prosecution of the same parties involved in the case last referred to, and another, for embezzlement under a section of the criminal code substantially the same as § 2285, supra. The indictment alleged that defendants, each then and there being officers, agents and employes of the bank, and having access to, and control and possession of, a large sum of money, to the possession of which the bank was entitled, while in such employment, and acting as such officers, agents and employes, did unlawfully and fraudulently take and appropriate to their own use, etc. In holding that this indictment was insufficient, because its allegations did not show with necessary certainty that the possession of the money by defendants at the time of the appropriation was by virtue of their employment, the court said: "If the duties of the defendants, as officers, agents, and employes of the bank were such as had no connection with the money of the bank, but only afforded them an opportunity to reach and take it, and, without authority of the bank, they did take possession and appropriate it, the act would have been larceny at the time of the passage of the act of 1865, and hence not indictable as the new crime of embezzlement created by that act. Embezzlement is the fraudulent conversion of property by a person to whom it has been intrusted. Bouvier's Dictionary; Anderson's Dictionary. Therefore, in charging embezzlement under § 2022, it is necessary to show some right, trust, or duty arising from the employment in respect to the possession of the property appropriated. * * * We are not advised by the indictment in what capacity the defendants were employed by the bank; whether either was president, cashier or teller. For aught that appears, they may have been directors, bookkeepers, or any other class of employes. They may also have been, respectively, president, cashier, and teller. We may as reasonably infer the one as the other. Such a state of uncertainty is not permitted in criminal pleading. For failure, therefore, to show that the defendants had access to and control and possession of the money appropriated, by virtue of their employment, the indictment is insufficient."

Again in Vinnedge v. State (1906), 167 Ind. 415, 79 N.E. 353, the question of the sufficiency of an indictment for embezzlement was involved. That indictment charged that Vinnedge "was then and there an employe" of a certain corporation, "and as such...