Kops v. State
| Decision Date | 12 June 1942 |
| Docket Number | 27617. |
| Citation | 42 N.E.2d 58,220 Ind. 373 |
| Parties | KOPS v. STATE. |
| Court | Indiana Supreme Court |
Appeal from Superior Court, St. Joseph County; Wirt Worden, Special judge.
George L. Rulison and George Sands, both of South Bend, for appellant.
George N. Beamer, Atty. Gen., James K. Northam First Asst. Atty. Gen., and Obed T. Kilgore, Deputy Atty Gen., for appellee.
This was a prosecution against appellant for the alleged offense of conspiracy to commit a felony. § 10-1101, Burns' Ann.St., 1905 Acts, Ch. 169, § 641, p. 584.
Appellant was jointly charged with one Louis E. Fiffe. There was a motion to quash which was overruled, and appellants present this ruling as one of the errors for a reversal of the judgment.
The affidavit, omitting the formal parts, reads as follows: 'Henry E. Waltz, being first duly sworn, upon his oath says, that on the--Day of January, A. D. 1938, at the County of St. Joseph, in the state of Indiana, Louis E. Fiffe and William G. Kops did then and there unlawfully knowingly and feloniously unite, combine, conspire, confederate and agree to and with each other for the object and purpose and with the unlawful and felonious intent that Louis E. Fiffe who was then and there Auditor of the City Water Works of the City of South Bend, Indiana, and as such Auditor would be entrusted with the receipt and safe keeping of money in the sum of Ten Thousand Five Hundred and One Dollars and Sixty-nine Cents ($10,501.69) which belonged to the City Water Works of the City of South Bend, Indiana, and which said sum would be in the possession and keeping of the said Louis E. Fiffe as such Auditor, would while acting as such Auditor and in the possession of the said money as aforesaid and entrusted as such Auditor with its receipt and safe keeping as aforesaid would then and there unlawfully, feloniously and willingly embezzle, convert and appropriate the said sum to the use of the Redz Beverage Corporation, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Indiana.'
Appellant first contends, in support of his motion to quash, that the affidavit does not state a public offense, because, 'ownership of the funds purposed to be embezzled was not alleged.' It is appellant's contention that, 'The City Water Works' stated in the affidavit as the owner of the funds, is neither the name of a person or a legal entity.
Nowhere in the record does it appear whether the Water Works of the City of South Bend was operated by the Board of Public Works, or by a Board of Trustees. § 48-5301, Burns' 1933, § 12788, Baldwin's 1934, Acts 1933, ch. 235, § 1, p. 1063, provides for the creation by ordinance, of a department of water works, in any city or town owning and operating a water works system.
By § 48-5303, Burns' 1933, § 12790, Baldwin's 1934, being § 3 ch. 235, Acts 1933, the department of water works is placed under the management and control of a board of trustees, and by a subsequent section (§ 5 of said Act, § 48-5305, Burns' 1933, § 12792, Baldwin's 1934) the powers and duties of said board are defined. Among the powers and duties given said board, is the power to fix rates and collect water rentals for the supply of water to consumers.
By § 48-5401, Burns' 1933, § 11768, Baldwin's 1934, Acts 1931, ch. 86, § 1, City Water Works may be operated by the board of public works, and in this section the act refers to officers of the water works and further provides that the money so collected shall be deposited in a separate fund. Consequently, from a study of the various statutes of this state governing the control and operation of city water works, the city water works is considered and meant to be a separate department of the city government, with power to operate and manage the water works system, including the right to charge, collect, and receive money for water service. In either event the water works, whether operated by the Board of Public Works or by a Board of Trustees was authorized to receive money from its various customers for water service; and customers, when they paid their water bill to the water works, were fully discharged of their obligation, and could not be compelled to pay it again. So, under the law, the money alleged to have been embezzled was lawfully possessed and rightfully under the control of the City Water Works of South Bend. We therefore, hold that the words 'The City Water Works' found in the affidavit is a department of city government with power to receive and control funds in such manner as to be the subject of embezzlement.
Appellant also contends that the affidavit is bad because of uncertainty, and relies upon State v. Ensley, 1911, 177 Ind. 483, 97 N.E. 113, Ann.Cas.1914D, 1306, Agar v. State, 1911, 176 Ind. 234, 94 N.E. 819, and Davis v. State, 1924, 196 Ind. 213, 147 N.E. 766.
In the first case cited above [177 Ind. 483, 97 N.E. 119, Ann.Cas.1914D, 1306], the court used this language:
In Agar v. State, supra [176 Ind. 234, 94 N.E. 823], the following language is found: 'The true test of the sufficiency of an indictment is whether the material averments thereof are stated with such certainty as to apprise the defendant of the nature and cause of the charge against him.'
To the same effect are all the cases cited and relied upon by defendant. The latest expression of this court on this subject is found in the case Marks v. State, Ind.Sup.1942, 40 N.E.2d 108.
It is obvious from the wording of the affidavit that the money purposed to be embezzled was the money paid to city water works, and money that belonged to the City of South Bend. Appellant could not have been misled or left in doubt as to the ownership of the money. We think the affidavit sufficient.
The second question presented by appellant in his brief is also attempted to be presented in his motion for a new trial, by objecting to certain instructions given by the court to the jury. Whether the question is properly presented by appellant's motion for a new trial we need not decide, inasmuch as the state has not challenged the sufficiency of appellant's brief.
The question around which most of the controversy certers arises out of the following situation: This prosecution was called for trial twice. The first hearing was in January, 1941, and proceeded on the theory that the purposed felony charged was the embezzling of public funds. It seemed that the state took the position that the funds in the possession and under the control of the City Water Works belonged to the City of South Bend, and was therefore public funds. Consequently the purposed felony was the felony defined by § 10-1701, Burns' Ind.St.1933, § 2464, Baldwin's 1934.
During the progress of the proceedings, upon motion of appellant, the submission of said cause was taken from the jury, and a mistrial resulted.
At the second hearing, the state, for some unexplained reason, took a different view of the nature of the funds purposed to be embezzled, and adopted the theory that the funds in the possession of and under the control of the City Water Works, were private funds, and therefore the purposed felony alleged in the affidavit was that defined by § 10-1704, Burns' Ind.St.1933, § 2467, Baldwin's 1934.
Inasmuch as the state contended in the second trial that the funds purposed to be embezzled were private funds, appellant contends that there is no charge ro evidence that Louis E. Fiffe, as Auditor of the City Water Works, sustained any fiduciary relationship whereby he had access to the funds, and therefore the purposed felony, defined by § 10-1704, was not sufficiently alleged or proved. The court, by its instruction No. 4, told the jury that the purposed felony alleged in the affidavit was defined by § 10-1704, and incorporated the statute in full in the instruction. This instruction was objected to by appellant.
As stated above, it is our judgment the affidavit was sufficient to charge appellant with the crime of conspiracy to commit a felony, and the purposed felony was to embezzle public funds. Therefore, instruction No. 4 was erroneous and the judgment must be reversed, unless we can say that it was harmless.
We must keep in mind that the charge against appellant was conspiracy to commit a felony, § 10-1101, Burns' Ind.St.1933, § 2909, Baldwin's 1934, and not the crime of embezzling either private or public funds. Appellant was informed by the charge in the affidavit of the nature of the offense placed against him. He knew that the money purposed to be embezzled was the money in the possession and under the control of the City Water Works. He was fully informed on that subject. The nature of the fund embezzled was not of the essence of the crime. As far as this case is concerned, it was immaterial whether the court construed the funds in the hands of the City Water Works as private funds or public funds. No doubt the court took the position that the city was acting in its private capacity in furnishing water service to its customers, and therefore the money receive therefor was private funds.
The purposed felony...
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