Hart v. State
| Decision Date | 05 November 1942 |
| Docket Number | 27737. |
| Citation | 44 N.E.2d 346,220 Ind. 469 |
| Parties | HART v. STATE. |
| Court | Indiana Supreme Court |
[Copyrighted Material Omitted]
Appeal from Jasper Circuit Court; Russell Gordon, Special judge.
Paul E. Reed and Wm. J. Reed, both of Knox, for appellant.
Geo N. Beamer, Atty. Gen., Glen L. Steckley, Deputy Atty. Gen., and John E. Hopkins, Pros. Atty., of Rensselaer, for appellee.
All the errors relied upon for reversal of the judgment in this case are presented in the motion for new trial which was filed and overruled after verdict against appellant upon a charge by indictment that as agent he embezzled $25 of the money of Christ Schlarf. Appellant's principal contention is that the court should have given a peremptory instruction of acquittal because the evidence shows as a matter of law that he was not the agent of Schlarf. Pertinent facts shown by the evidence are as follows.
Appellant was the auditor of Jasper County. He was the son-in-law of William Spurgeon who owned two tracts of real estate in Jasper County upon which there was a school fund mortgage executed by his predecessor in title in the principal sum of $1,400. Schlarf desired to buy one of these tracts. With his wife and attorney on May 13, 1937, he met Mr. and Mrs. Spurgeon in a room adjoining the auditor's office and there they discussed the details of the agreement. Appellant knew, generally at least, what was transpiring. The agreement was reduced to writing and signed by Mr. and Mrs. Schlarf and Mr. and Mrs. Spurgeon. It provided in substance that the Schlarfs, husband and wife, 'parties of the second part,' agreed with the Spurgeons to buy one of the two tracts and as consideration to pay the vendor $100 in cash and to assume and pay a $1,400 note and the school fund mortgage, with interest after March 31, 1937. It was further provided that the purchasers would pay 'to the Auditor of Jasper County' not less than $25 per month on the principal 'and may pay any additional amount of the principal of said note that they may be able to pay, and if the Auditor shall not care to accept these payments, the parties of the second part shall pay the same to the bank in which these papers are placed in escrow, to be delivered to the Auditor at the end of the year each 31st of March.' The deed was executed and placed in escrow with a copy of the agreement. The deed also contained a clause by which the Schlarfs assumed and agreed to pay the mortgage. The contract provided for immediate possession. Other provisions are immaterial to this inquiry. Evidently the parties assumed that the auditor was the officer of the County to whom school fund mortgages were payable and the quoted clause was apparently inserted on their assumption that payments of principal as small as $25 might not be accepted by the auditor.
Schlarf paid $25 cash to appellant and received from him this receipt:
The money was not applied to the payment of the mortgage, was not returned to Schlarf, nor paid to Spurgeon. Appellant claims that having been paid by Schlarf in conformity with the terms of the agreement and with no expectation of its return the $25 ceased to be Schlarf's money so that it could not have been embezzled from him.
The treasurer of a county under § 28-235, Burns' 1933, § 6592, Baldwin's 1934, is the only proper person to receive payments on school fund mortgages. Until the money reaches him the mortgage debt and lien can not be discharged. Without a statutory provision therefor, and there is none, the treasurer may not constitute the auditor as such an agent to receive payment. It is not contended that the greasurer deputized appellant individually as such agent.
Obviously appellant was not himself entitled to the money and must have been acting as agent for another. The agency was either to pay or to receive payment for some principal. If the agency was to receive payment, the treasurer is excluded as principal by the statute, and Schlarf by the fact that he was making the payment, leaving as a possibility only Spurgeon. If appellant was his agent to receive, it must have been because Spurgeon was entitled to the money. But the provisions of the contract are to the contrary. Under its terms Spurgeon was to receive $100, which apparently was paid at the time of execution. None of the $1,400 secured by the mortgage was to be paid either to him or through him to the mortgagee. The receipt above quoted clearly shows that the $25 involved was a payment on the mortgage. Only the treasurer was authorized to receive that payment.
If appellant could not have been acting as agent to receive, he must have been an agent to pay. The case is analogous in this respect to Sherrick v. State, 1906, 167 Ind. 345, 360, 79 N.E. 193, 197, and State v. Mutual Life Ins. Co., 1910, 175 Ind. 59, 79, 93 N.E. 213, 219, 42 L.R.A.,N.S., 256. In the former is this statement: 'If the insurance companies paid the money to the accused as their agent, or delivered it to him as the voluntary and assumed agent of the state, to be by him paid into the treasury of the state, until the money was paid into the treasury of the state, or there was some notice of acceptance or ratification of the agency by the state, it was competent for the insurance companies to have revoked the agency and recover their money from the accused, as for money had and received.'
There remains the question: For whom was appellant acting as agent to pay? Surely it was not for Spurgeon because, so far as the record discloses, he was not personally obligated to pay the mortgage. It was a lien upon the real estate he retained and he would have been benefited by its payment, but if not paid, the only detriment to him could be foreclosure of the lien. Even in that event he would be in the position of a surety and could require that Schlarf and Schlarf's real estate first be exhausted, for by the contract of sale the vendees became the primary obligors on the mortgage indebtedness. Birke et al. v. Abbott, 1885, 103 Ind. 1, 1 N.E. 485, 53 Am.Rep. 474.
It will be conceded that the $25 was Schlarf's money before he delivered it to appellant. The purpose of its delivery was to pay Schlarf's debt to the mortgagee. Appellant must have been his agent for that purpose. Therefore the money embezzled could have belonged to no one other than Schlarf.
The only case appellant cites as authority for a different view is Downey v. Gifford, 1928, 206 Iowa 848, 218 N.W. 488. If we analyze its facts correctly, it could probably have been put on the ground of novation. The vendor released the vendee's obligation to pay an instalment of interest due on a mortgage by accepting a bank's obligation to pay the vendor that instalment with interest thereon. When the bank failed, it was the vendor's loss. Examination of other cases cited with the Iowa case on page 1027 of 66 C.J. reveals that they deal with situations where deferred portions of a purchase price were payable to the vendor, so that an intermediary to whom payment was actually made was deemed to be the vendor's agent to receive the money.
It is not contended that in any other respect than on the question of agency the evidence is insufficient to support the verdict. There was no error therefore in overruling the motion for new trial because of the denial of the peremptory instruction, because the verdict was contrary to law or because not sustained by sufficient evidence.
Over appellant's objection evidence was admitted tending to prove that he received other payments from Schlarf and from various other persons indebted on school fund mortgages and appropriated the money to this own use. As indicated from the statement of facts, supra, there was ample independent evidence tending to prove the act of converting the $25 and accordingly evidence that he received and failed to account for other payments was admissible to show a felonious intent. Collins v. State, 1922, 192 Ind. 86, 103, 131 N.E. 390; Wallace v. State, 1932, 204 Ind. 68, 75, 183 N.E. 29, 32; Springer v. State, 1935, 209 Ind. 322, 196 N.E. 97. See 18 Am.Jur. Embezzlement § 62, p. 608. The order of proof was within the discretion of the trial court. Jones v. State, 1942, Ind.Sup., 43 N.E.2d 1017.
It is claimed that the court erred in giving and refusing to give instructions. Appellee says that these alleged errors may not be considered for two reasons, first, because the instructions are not brought into the record by special bill of exceptions and, second, because the motion for new trial does not disclose the grounds of objection to the several instructions. This case was tried under the 1940 Revision of the Rules of this court. Rule 1-7 explicitly negatives appellee's first point. The second is based on cases holding that a question as to the admissibility of evidence will not be considered on appeal unless the motion for new trial sets forth the question, answer if one was given objection, ruling of the court, and that an exception was reserved. Brown v. State, 1939, 216 Ind. 106, 108, 23 N.E.2d 267, 268; Deming Hotel Co. v. Sisson, 1940, 216 Ind. 587, 592, 24 N.E.2d 912, 914; Wise v. Curdes et al., 1942, Ind.Sup., 40 N.E.2d 122. This rule gradually developed from a dictum in Greer v. State, 1929, 201 Ind. 386, 168 N.E. 581. See 9 Ind.L.J. 149. It has never been applied to instructions. If the practice is to be changed to conform with the reasoning summarized in the Brown case, which, it must be admitted, is applicable to instructions as well as evidence, nevertheless the change ought not to operate retroactively. The trial courts and members of the bar...
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