Green v. State

• Decision Date: 31 January 1933
• Docket Number: No. 26132.,26132.
• Citation: 204 Ind. 349,184 N.E. 183
• Parties: GREEN v. STATE.
• Court: Indiana Supreme Court

204 Ind. 349

184 N.E. 183

GREEN

v.STATE.

No. 26132.

Supreme Court of Indiana.

Jan. 31, 1933.

Appeal from De Kalb Circuit Court; Wm. P. Endicott, Judge.

Monte L. Green was convicted of receiving a deposit in a trust company, of which he was president, with knowledge of its insolvency, and he appeals.

Reversed, with instructions.Rex S. Emerick, of Kendallville, and Edgar Atkinson and Atkinson & Husselman, all of Auburn, for appellant.

James M. Ogden, Atty. Gen., and Harry Taylor, Asst. Atty. Gen., for the State.

HUGHES, J.

The appellant, president of the Garrett Savings, Loan & Trust Company, was indicted under section 2479, Burns' 1926, for receiving a deposit, knowing that the company was insolvent, whereby the deposit was lost to the depositor. He was tried by a jury and found guilty. Judgment was rendered upon the verdict of the jury, and he was fined $50 (double the amount of the deposit), and sentenced to prison for a period of not less than two nor more than fourteen years. There are three errors relied upon for reversal by the appellant: The overruling of his motion (1) to quash the indictment, (2) in arrest of judgment, and (3) for a new trial.

The appellant contends that, under the first two assignments of error, the facts stated in the indictment do not constitute a public offense, for the reason that (1) in order to state a public offense under section 2479, Burns' 1926, the indictment must charge that the appellant received such money as an officer of such bank, or that he received it “by virtue of his employment,” and he contends that the indictment fails to so charge; and (2) he contends that it is not a crime in the state of Indiana for an officer, agent, or employee of either a savings, loan, or trust company to accept and receive a deposit of money at a time when such savings, loan, or trust company was insolvent, although such insolvency was well known to such officer, agent, or employee, and although such deposit was thereby lost to such depositor, for the reason that the Banker's Embezzlement Statute, namely, section 2479, Burns' 1926, does not include within its provisions, officers, agents, or employees of either savings, loan, or trust companies, and therefore, as such officers, agents, or employees are not enumerated and included in such section, they cannot be guilty of embezzlement under said section 2479.

As to the first contention, we find that the indictment contains the allegation: “That the appellant, Monte L. Green, on the thirty-first day of December, 1930, was then and there president and a director of the Garrett Savings, Loan and Trust Company, *** that said Monte L. Green, who was then and there an officer of said banking company, well knowing the insolvency of said company and while acting as an officer, president and director, of said company did then and there feloniously, fraudulently and unlawfully receive and take from one *** who was not then and there indebted to said bank the sum of twenty-five ($25.00), *** as a deposit within said banking company, whereby said sum was lost to the depositor. ***”

The appellant cites many cases as upholding his first contention. We feel that upon close analysis of these cases he is in error, and that there is a distinct difference between them and the one at bar. Section 2203, Burns' 1926, provides that “words used in the statute to define a public offense need not be strictly pursued, but other words conveying the same meaning may be used.” And section 2224, Burns' 1926, provides that an indictment or affidavit shall be sufficient as to the part charging the offense if the “offense charged is clearly set forth in plain and concise language, without unnecessary repetition,” and if it is “stated with such a degree of certainty that the court may pronounce judgment upon a conviction according to the right of the case.” Section 2223, Burns' 1926, provides that “words used in an indictment or affidavit must be construed in their usual acceptation in common language, except words and phrases defined by law, which are to be construed according to their legal meaning.”

The appellant asserts that “the indictment must charge that the appellant received such money as an officer of such bank in order to constitute a public offense.” We feel that in construing the words of the indictment in their usual acceptation in common language they charge that the appellant received such money as an officer of such bank. There is the positive statement in the indictment that Monte L. Green “was then and there the president of ***” “and while acting as an officer, president, and director, did then and there *** receive *** as a deposit within said banking company.” The indictment certainly shows that there was a special trust in relation to the deposit, and that by virtue of such trust the appellant had access to, control and possession of, said deposit. While it is true that the indictment does not specifically charge in so many words that the appellant had possession of the deposit by virtue of his employment or position, yet in the usual acceptation in common language this is the meaning of the charges in the indictment, and is sufficient.

The appellant cites the case of Hinshaw v. State, 188 Ind. 147, 122 N. E. 418, 421. The indictment in the Hinshaw Case differs from that in this case in not charging the receiving and taking, “while acting as an officer.” In the Hinshaw Case the court said: “It is fundamental that, in embezzlement, the taking and receiving part of the charge must be connected and coupled with the statement that such taking and receiving was by virtue of the office, or the agency, or the employment.” We do not understand by this statement that it is absolutely necessary to use the exact words by “virtue of the office,” in order to make an indictment good. If other words are used which convey the same meaning, the indictment will be good. Frost v. State, 178 Ind. 305, 99 N. E. 419. In the present indictment it is positively averred that the appellant was president, and while acting as such he received the sum of $25 as a deposit within said banking company. This language certainly means, if it means anything, that he received and took the money by virtue of his office. This construction being true, it is in complete harmony with all the cases cited by the appellant.

The appellant cites the case of Frost v. State, 178 Ind. 305, 99 N. E. 419, 420, as upholding his contention. We do not think so. In this case the affidavit stated the defendant “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 *** the property of *** that the said Merle L. Frost, while the treasurer of the said Clay Encampment *** and in the possession and control of such money *** did then and there unlawfully. ***” It is the contention of appellant in the above case that by reason of the omission of the statement, “by virtue of his employment,” the affidavit was fatally defective. The court in this case said: “The allegation that appellant was ‘treasurer’ of Clay Encampment was a direct allegation of a particular employment necessarily involving a trust relation to the funds of the association; and the allegation that ‘as such treasurer’ he had the control and possession of the money of the association excluded any implication that he gained the control and possession by a trespass, or held it otherwise than rightfully, by virtue of the office he held. *** We do not think that to have alleged that appellant held control and possession of the money ‘by virtue of his employment’ as such treasurer would have added anything to the certainty of the affidavit.”

The court cites and analyzes many of the cases cited by the appellant, and made the apt statement: “That we think these cases (meaning the case of Ritter v. State, 111 Ind. 324, 12 N. E. 501;Colip v. State, 153 Ind. 584, 55 N. E. 739, 74 Am. St. Rep. 322;State v. Winstandley, 154 Ind. 443, 57 N. E. 109;State v. Winstandley, 155 Ind. 290, 58 N. E. 71;Vinnedge v. State, 167 Ind. 415, 79 N. E. 353;Wright v. State, 168 Ind. 643, 81 N. E. 660) *** have defined the ultimate limit requiring certainty in an affidavit of indictment for embezzlement in the particular alleging with certainty the character of a defendant's access to, control or possession of the property alleged to have been embezzled by him; and we feel constrained to say that they should be strictly limited and the last one (Wright v. State, supra) disapproved, rather than to extend their force as precedents to over-throw the affidavit before us.” The foregoing statement is especially applicable in the case before us. There was no error in overruling the motion to quash the indictment, and in arrest of judgment.

The appellant further contends that “it is not a crime *** for an officer *** a savings, loan, or trust company to accept and receive a deposit of money at a time when such a company is insolvent, although such insolvency is well known to such officer *** and although such deposit is thereby lost to the depositor for the reason that *** section 2479, Burns' 1926, does not include within its provision, officers, *** of either savings, loan, or trust companies.”

The statute applies to “any officer, agent or employee of any banking company or incorporated bank, doing a banking business in this state.” The indictment charges that appellant “was *** the president of the Garrett Savings, Loan and Trust Company *** a corporation exercising the powers and privileges conferred on banks by the laws *** and was *** an incorporated company doing a banking business.” We assume that proof was made of the facts alleged, as the evidence is not presented by the appellant. It was provided by section 3, c. 20, Acts 1921, section 3950, subd. 9, Burns' 1926, that loan and trust and safe deposit companies “shall exercise the powers and possess...