Gillian v. State

• Decision Date: 26 February 1935
• Docket Number: 26218
• Citation: 194 N.E. 360,207 Ind. 661
• Parties: GILLIAN v. STATE
• Court: Indiana Supreme Court

194 N.E. 360

207 Ind. 661

GILLIAN v. STATE

No. 26218

Supreme Court of Indiana

February 26, 1935

Walter A. Gillian was convicted of a violation of Burns' Ann St. 1926, § 2479, and he appeals.

Reversed, with instruction.

Appeal from Noble Circuit Court; William P. Endicott, Special judge.

H. W Mountz, of Garrett, W. D. Stump, of Auburn, and Ralph Probst of Kendallville, for appellant.

Philip Lutz, Jr., of Boonville, and James D. Sturgis, of Indianapolis, for the State.

OPINION

HUGHES, Judge.

This is a prosecution by affidavit against the appellant in the Noble circuit court upon a charge of banker's embezzlement under section 2479, Burns' 1926; section 2476, Baldwin's 1934; section 10-1714, Burns' 1933. The appellant was tried by a jury and found guilty and sentenced to the Indiana State Prison.

The appellant assigns several errors for reversal as follows:

(1) The court erred in overruling the appellant's motion to quash the affidavit.

(2) The court erred in sustaining the demurrer of the state to appellant's plea in abatement.

(3) The court erred in overruling the appellant's motion for a new trial.

In the motion to quash, it was contended: First, by the appellant, that the affidavit was insufficient in that the statute defining banker's embezzlement does not include within its terms officers of a loan, trust, and safe deposit company; second, that it did not charge that the depositor, who made the deposit upon which the affidavit was founded, was not then and there indebted to the Noble County Bank & Trust Company; third, that the affidavit was not properly verified, the verification by the prosecuting attorney, who was required, as a judicial officer of the court, to approve it, was unauthorized, and it was not a valid or sufficient affidavit; fourth, the offense was not charged with sufficient certainty.

The first reason assigned in the motion to quash has been passed upon by this court adversely to the appellant in the case of Green v. State (1933) 204 Ind. 349, 184 N.E. 183, 87 A. L. R. 1251, and we adhere to the opinion rendered in that case. As to the second reason assigned, we think the affidavit was sufficient. It was alleged in the affidavit that the 'Noble County Bank and Trust Company' was a loan and trust and safe deposit company, incorporated under the laws of the state of Indiana. This corporate name was used throughout the affidavit except when it was charged that the appellant did 'unlawfully receive and take from one Herman E. Hanes, who was not then and there indebted to said bank the sum of $ 25.00 in lawful and current moneys of the United States, as a deposit within said, the Noble County Bank and Trust Company.' We think the allegation is sufficient and certain and not open to the objection raised by appellant.

The affidavit was signed by Benton E. Gates, and the affidavit was indorsed as follows: 'Approved by me Benton E. Gates, Prosecuting Attorney.' The appellant filed a plea in abatement, setting up as a defense in abatement that the affidavit was signed by the prosecuting attorney only and that such affidavit was not sufficient for the reason that the prosecuting attorney, as a judicial officer of the court, was required to approve affidavits upon which criminal charges are presented and that he could not appear in the dual capacity as prosecuting witness and prosecuting attorney. A demurrer to the plea in abatement was sustained, and then appellant filed a motion to quash the affidavit for the reason it did not state facts sufficient to constitute an offense. This motion was also overruled.

Section 2150, Burns' 1926, provides that: 'All public offenses, except treason and murder, may be prosecuted in the circuit or criminal court, by affidavit, filed in term-time, in all cases except when the grand jury is in session or a prosecution by indictment or affidavit for the same offense is pending at the time of the filing of such affidavit.' And section 2151, Burns' 1926, provides: 'When such affidavit has been made, as provided in the last section, the prosecuting attorney shall approve the same by indorsement, using the words 'approved by me' and sign the same as such prosecuting attorney. * * *'

It will be seen that the above sections are silent as to a requirement that any particular person or party should sign the affidavit. If it were not for the provision that the prosecuting attorney is required to approve the affidavit and indorse thereon 'approved by me,' we do not think it could be seriously contended that the prosecuting attorney would not be qualified to sign an affidavit. Does the fact that the prosecutor is required to approve the affidavit disqualify him from signing it? While we do not approve the practice and think it should be condemned, we cannot say that it cannot legally be done and we know of no law to prevent it. We think, however, from the standpoint of public policy, that if a disinterested party will not sign the affidavit, then the evidence should ordinarily be presented to the grand jury for its consideration and thereby leaving the prosecutor's office clear of any charge that might be made of any personal interest in the result of the prosecution.

In the case of People v. Currie, 16 Cal.App. 731, 117 P. 941, 942, the facts are very similar to the present case and the court said: 'There is nothing in the statute which disqualifies the district attorney from swearing to the complaint. The statute does not prescribe who shall make oath to the complaint. The argument that the defendant could not have, and did not have, a fair trial because of the fact that the district attorney made the complaint and afterwards conducted the trial is without merit. His having made the complaint before the magistrate would not indicate necessarily any greater zeal or interest in the case than the subsequent filing of the information. The fairness of the trial is to be judged by what took place at the trial.'

We do not think the court committed error in sustaining the demurrer to the plea in abatement, nor in overruling the motion to quash the affidavit.

Many reasons are assigned in appellant's motion for a new trial. We will not consider all of the reasons in disposing of the motion. The judgment must be reversed, for certain reasons hereafter stated, and many of the objections raised in the motion for a new trial are not likely to arise again in another trial of the case.

The appellant contends that the court erred in admitting in evidence State's Exhibits 44, 45, 46, 48, and 52. These exhibits were the records of the proceedings of the Noble County Bank during the years 1925, 1926, and 1928. It appears from the brief of appellant and the objection raised to the admission of the exhibits that the Noble County Bank & Trust Company succeeded to the business which had formerly been conducted by the Noble County Bank. There is no evidence before us on this proposition, but assuming it to be true as stated in appellant's brief, we see no objection to the admission of said exhibits. The jury was entitled to know the facts as shown in the exhibits. Nor do we think the court committed error in admitting in evidence State's Exhibit 71. This exhibit was a record of the minutes of ten meetings of the board of directors of the National Trading Company which was a debtor of the Noble County Bank & Trust Company. The evidence is not before us, but we assume that the exhibit was introduced to show the value of the credits extended to the National Trading Company. As far as we are advised from the record and brief of appellant, we think the court did not commit error in admitting State's Exhibit 215. This exhibit was a judgment, and proceedings connected therewith, obtained in a municipal court of the state of New York. It was evidently introduced for the purpose of proving the value of certain property in which the Noble County Bank & Trust Company had an interest. For this purpose it was admissible.

Exhibit 227 was properly admitted. This exhibit was the discharge in bankruptcy of George B. Rimmel, a large debtor of the Noble County Bank & Trust Company. The discharge was for all debts existing on April 12, 1930.

Appellant also contends that error was committed in permitting Vermont Finley, a witness, to express his opinion of certain assets of the company. He was asked: 'Do you know what the value of those securities, Crosstown Realty Company Bonds, were on the 10th day of January, 1931?' His answer was: 'Yes Sir.' Then he was asked: 'What was their value? Answer: Nothing, no value.' Whether or not this was all the evidence given we are not informed. As far as the questions here before us, we only have the positive statement of the witness that he knew the value of the bonds. The objection goes more to the weight of the evidence than its competency, and we cannot say it was harmful to appellant.

Appellant further contends that State's Exhibits 53 and 57 were improperly admitted and harmful to the...