Kennedy v. State
| Decision Date | 14 June 1935 |
| Docket Number | 26090 |
| Citation | 196 N.E. 316,209 Ind. 287 |
| Parties | KENNEDY v. STATE |
| Court | Indiana Supreme Court |
William P. Kennedy was convicted of embezzlement, and he appeals.
Affirmed.
Appeal from Union Circuit Court; John C. Craig, Judge.
Ray K Shiveley and Gath P. Freeman, both of Richmond, and Leland L Bond, of Liberty, for appellant.
James M. Ogden, Atty. Gen., and Merl M. Wall, of Indianapolis, for the State.
Appellant was charged, by affidavit, in five counts, with the crime of embezzlement under section 2470, Burns' 1926. Appellant filed separate motions to quash the second, third, fourth, and fifth counts of the affidavit which were overruled. Appellant waived arraignment and entered a plea of not guilty. The case was submitted to a jury, which returned a verdict of guilty as charged in the affidavit. Appellant's motion for a new trial was overruled. Appellant assigns as error the overruling of his motion to quash the second, third, fourth, and fifth counts of the affidavit and in overruling his motion for a new trial.
The first count of the affidavit charges in substance: That on or about the 17th day of August, 1929, one William P. Kennedy, being then and there the agent of one Minnie Fields, did then and there, by virtue of such agency, have control and possession of the sum of $ 2,387.43 in money, to the possession and ownership of which the said Minnie Fields was then and there lawfully entitled; that the said William P. Kennedy, while so acting as agent aforesaid and being in the possession and control of said money as aforesaid, did then and there unlawfully, feloniously, and fraudulently, take, purloin, secrete, embezzle, and appropriate to his own use, and the use of Adelaide K. Du Bois Emmasetta K. Bonnelle, Samuel Lambert, and Flora Kennedy, the money aforesaid, contrary, etc.
The second count is in substance the same as the first, except it charges the embezzling of a check made payable by the said Minnie Fields to William P. Kennedy in the sum of $ 2,387.43.
The third count charges: 'That on this day before Foster Osborn, clerk of the circuit court of Union county in the state in Indiana, personally came Minnie Fields, who being first duly sworn, upon her oath, says: That on the 17th day of August, 1929, at said county and state aforesaid, one William P. Kennedy, Adelaide K. DuBois, Emmasetta K. Bonnelle, Samuel Lambert and Flora Kennedy were partners doing a banking business as such partnership under the firm name of J. P. Kennedy & Co., and owning and operating a private bank under the laws of the state of Indiana, which bank was known and designated as the Citizens' Bank in the town of Liberty, said county and state; that said William P. Kennedy, was then and there the active manager of said partnership, its affairs and business, and the cashier of said Citizens' Bank owned by said partners; that at said county and state aforesaid said J. P. Kennedy & Co. was then and there acting as the agent of Minnie Fields, and by virtue of being then and there the agent of said Minnie Fields, did then and there have control and possession of the sum of Two Thousand Three Hundred Eighty-seven and 43/100 Dollars ($ 2,387.43) in money, to be used by said partnership in the purchase of United States, Municipal, or Gravel Road nontaxable bonds, and for no other purpose, to the possession and ownership of which money that said the Minnie Fields was then and there lawfully entitled; that said William P. Kennedy, as manager of said partnership, and cashier of said Citizens' Bank owned by said partners, did then and there cause said bank and partnership to unlawfully, feloniously, and fraudulently take, purloin, secrete, embezzle, and appropriate said sum of money to the use of said William P. Kennedy, Adelaide K. Du Bois, Emmazetta K. Bonnelle, Samuel Lambert and Flora Kennedy, as partners, in the firm of said J. P. Kennedy & Co., and as owners of said Citizens' Bank contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Indiana.'
The fourth count is in substance the same as the third, except the fourth count charges the embezzlement of the check, and that he appropriated said check, money, proceeds, and credit derived therefrom to the use of the parties named.
The fifth count of the affidavit charged that appellant and the other members of the partnership, naming them, were doing business under the firm name of J. P. Kennedy & Co. and owned and operated a private bank, designated the Citizens' Bank, and that appellant was the active manager of said partnership and the cashier of said bank and as such had charge of the business and affairs of said partnership and bank. The affidavit further charged that Minnie Fields delivered to Wm. P. Kennedy as cashier of said bank a check for $ 2,387.43, payable to William P. Kennedy as cashier, for the sole and only purpose of buying bonds. That the said J. P. Kennedy & Co. and William P. Kennedy as the manager and cashier was the agent of the said Minnie Fields and by virtue thereof had possession and control of said check and the money, proceeds, and credit derived therefrom. That appellant while so acting as agent aforesaid and while in the possession of said check and, etc., did then and there unlawfully, feloniously, and fraudulently take, purloin, secrete, embezzle, and appropriate the same to his own use and to the use of the different partners, as partners and owners of said bank, etc.
Appellant filed separate motions to quash each count of the affidavit which were overruled by the court, and this is the first error assigned for reversal of this cause. Appellant has waived any question as to the sufficiency of the first, second, and fifth count, but urges the insufficiency of third and fourth counts. It is appellant's position that the evidence affirmatively shows that the verdict must have been upon the third or fourth count and not upon the first, second, or fifth, and therefore if the third or fourth count is bad the case must be reversed. The point urged as to the insufficiency of the third and fourth count is on the ground of uncertainty, in that neither of said counts directly or positively alleges that either the partnership or the bank did unlawfully, feloniously, or fraudulently take, purloin, secrete, embezzle, or appropriate said property, and for that reason the said third and fourth count are too indefinite and uncertain to state a public offense. We cannot agree with appellant's position on this point. Appellant erroneously assumes that the theory of the third and fourth counts is that appellant is charged as an accessory and not as a principal. The third and fourth counts of the affidavit charge that: 'William P. Kennedy, as manager of said partnership and cashier of said Citizens' Bank owned by said partners, did then and there cause said bank and partnership to unlawfully, feloniously and fraudulently take, purloin, secrete, embezzle and appropriate said sum of money to the use of said William P. Kennedy, Adelaide K. Du Bois, Emmazetta K. Bonnelle, Samuel Lambert and Flora Kennedy, as partners, in the firm of said J. P. Kennedy & Co. and as owners of the said Citizens' Bank.' This we think is a direct and positive charge that appellant, as acting manager of the J. P. Kennedy & Co. and as cashier of the Citizens' Bank, appropriated and embezzled the money of Minnie Fields, to the use of himself and the other members of said partnership, and to the use of the bank. Under section 2224, subd. 5, Burns' Ann. St. 1926, an affidavit is sufficient if the offense charged is stated with such degree of certainty that the court may pronounce judgment upon a conviction according to the rights of the case. And under section 2225, subd. 10, Burns' Ann. St. 1926, an affidavit should not be quashed for any defect or imperfections which does not tend to the prejudice of the substantial rights of the defendant upon the merits. These provisions of our Criminal Code must be kept in mind in considering the sufficiency of an affidavit as against a motion to quash. Unless we can say that the third and fourth count of the affidavit is so uncertain and indefinite that appellant was not apprised of the character and nature of the charge against him, the motion to quash was properly overruled. Agar v. State (1911) 176 Ind. 234, 94 N.E. 819; Hart v. State (1914) 181 Ind. 23, 103 N.E. 846. Neither the bank nor the partnership as such could commit the crime of embezzlement. They act only through their officers. Hence appellant as the agent or manager, and who performed the alleged unlawful acts as herein set forth, is charged with the crime. We have read these counts very carefully and have concluded that they are sufficient to apprise the appellant of the nature and character of the charge against him, that appellant's substantial rights have not in any way been prejudiced by any indefiniteness or uncertainty in the affidavit. Williams v. State (1919) 188 Ind. 283, 123 N.E. 209; Hart v. State, supra. We find no error in overruling appellant's motion to quash the third and fourth counts of the affidavit.
Appellant's second error relied upon is the overruling of his motion for a change of venue from the county.
We learned from the record that appellant herein was charged with embezzlement by a grand-jury indictment which was docketed as cause No. 995, upon which a trial was had, but the jury failed to agree upon a verdict. Afterwards the indictment was dismissed, and the present affidavit was filed and docketed as cause No. 1020. Appellant filed his affidavit for a change of venue from the county in cause No. 995, and did not refile said motion in cause No. 1020. It is insisted by the state...
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