Leonard v. State, No. 30966

Docket NºNo. 30966
Citation249 Ind. 361, 232 N.E.2d 882
Case DateJanuary 15, 1968
CourtSupreme Court of Indiana

Page 882

232 N.E.2d 882
249 Ind. 361
Robert E. LEONARD, Appellant,
v.
STATE of Indiana, Appellee.
No. 30966.
Supreme Court of Indiana.
Jan. 15, 1968.

[249 Ind. 362]

Page 883

Richard C. VerWiebe, Fort Wayne, for appellant.

John J. Dillon, Atty. Gen., Murray West, Deputy Atty. Gen., for appellee.

LEWIS, Chief Justice.

The appellant was charged with the crime of embezzlement. He appeals from a conviction after a finding of guilty by the Trial Judge. The indictment, omitting the formal parts, reads as follows:

'The Grand Jury of the County of Allen, State of Indiana, upon their oath present that on or about the 3rd day of September 1963, at and in the County of Allen, State of Indiana, said Defendant, Robert E. Leonard, being then and there an attorney at law and employed by Mary L. Knapp as the attorney of record for Mary L. Knapp, Guardian of Carol Ann Jackson, and by virtue of said employment had access to the monies on deposit in the checking account of said Guardian at the Fort Wayne National Bank, Fort Wayne, Indiana, by virtue of then and there having possession of voucher checks drawn on said checking account at said bank and signed in blank, as to the payee, amount of each check and date, by said Guardian Mary L. Knapp, to which monies the said Mary L. Knapp, as Guardian of Carol Ann Jackson, was then and there entitled, the said Robert E. Leonard, while in the said employ of said Mary L. Knapp, unlawfully and feloniously appropriated to his own use and benefit the sum of One Thousand Eight Hundred Fifty Dollars ($1,850.00) belonging to the said guardianship checking account of Mary L. Knapp, Guardian of Carol Ann Jackson, by then and there inserting his name,

Page 884

Robert E. Leonard, as payee, the amount, to wit: One Thousand Eight Hundred Fifty Dollars ($1,850.00), and the date, to-wit: September 3, 1963, on one of said voucher checks, endorsing said voucher check and depositing the same in the personal checking account of the said Robert [249 Ind. 363] E. Leonard, in the Anthony Wayne Bank on the 3rd day of September, 1963, being contrary to the form of statute in such case made and provided.'

Leonard was the attorney for a guardian who was acting in the estate of a minor ward. It was the practice of the guardian to sign blank checks drawn on the guardianship account and to deliver the checks to her attorney, the appellant. Leonard would fill in the name of the payee and deliver the checks. On at least one occasion the appellant inserted his own name as the payee, endorsed the check and deposited the same in his own personal checking account, and then withdrew the funds for his own purposes. The check on which Leonard inserted his own name as payee was not intended for him, and was intended for a creditor of the guardianship.

Basically, the appellant raises the following claimed errors:

(1) The decision of the Trial Court is not sustained by sufficient evidence, and is, therefore, contrary to law.

(2) Appellant's rights under the Fourth and Fifth Amendments under the Constitution of the United States were violated.

(3) The Trial Court committed error in sustaining the State's demurrer to appellant's plea in abatement; the plea in abatement claimed error in impaneling the grand jury.

The crime of embezzlement as covered by the indictment is found in Burns' Indiana Statutes, Anno., § 10--1704, (1956 Repl.), and the pertinent parts of this section of the statute are as follows:

'Every * * * attorney * * * having access to control or possession of any money, article or thing of value, to the possession of which his employer is entitled, shall, while in such employment, take, purloin, secrete or in any way whatever appropriate to his own use * * * in whose employment such * * * attorney * * * shall be deemed guilty of embezzlement * * *.'

Appellant contends the State must prove that appellant had possession of the guardian's funds and that the mere possession[249 Ind. 364] of a negotiable instrument does not meet this test, and that appellant, therefore, cannot be guilty of embezzlement, and if he is guilty of any crime it must be an offense connected with a negotiable instrument. Here we find that appellant obtained access to the funds by means of the check signed in advance by the guardian. It is true, appellant did not have actual possession of the funds and could not have embezzled the actual funds. However, the law is well established in Indiana that mere access to the item converted is not sufficient to sustain a conviction for embezzlement, but access coupled with the wrongdoer being in a position of trust and confidence has been held to be sufficient. This Court said in Colip v. State (1899), 153 Ind. 584, 55 N.E. 739:

'* * * Something more than mere physical access, or opportunity of approach to the thing, is required. There must be a relation of special trust in regard to the article appropriated, and it must be by virtue of such trust that the servant has access to, or control, or possession of it. * * *'

See also Young v. State (1932), 204 Ind. 331, 183 N.E. 100. In Warren v. State (1945), 223 Ind. 552, 62 N.E.2d 624, the appellant was convicted of the larceny of four cans of Prestone. It was alleged he had embezzled the goods rather than having

Page 885

been guilty of larceny. This Court affirmed the conviction saying:

'* * * Here there was no 'relation of special trust in regard to the article appropriated'...

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17 practice notes
  • U.S. v. Whitlock, No. 78-1305
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 4, 1980
    ...States Code, and entitled "Crimes and Criminal Procedure." In that 1948 codification § 656 attained its present form. 4 Leonard v. State, 249 Ind. 361, 232 N.E.2d 882 (1968), involved an attorney who misappropriated his client's money by putting his own name in the payee blank on a check si......
  • Addonizio, In re, Nos. A--62
    • United States
    • United States State Supreme Court (New Jersey)
    • December 16, 1968
    ...U.S. 912, 79 S.Ct. 1297, 3 L.Ed.2d 1261 (1959); United States v. Gerhart, 275 F.Supp. 443, 462--463 (S.D.W.Va.1967); Leonard v. State, 232 N.E.2d 882, 885 Addonizio's argument seems to rest upon an assumption that the Fourth Amendment makes transactions 'confidential.' Of course, it does no......
  • Oman v. State, No. 46S03-9909-CR-00495.
    • United States
    • Indiana Supreme Court of Indiana
    • September 26, 2000
    ...non-party. A party generally lacks standing to challenge the validity of a subpoena issued to a third party. See, e.g., Leonard v. State, 249 Ind. 361, 365, 232 N.E.2d 882, 885 (1968); Cox v. State, 181 Ind.App. 476, 392 N.E.2d 496 (1979). However, a party may establish standing if he or sh......
  • Wireman v. State, No. 382S118
    • United States
    • Indiana Supreme Court of Indiana
    • March 26, 1982
    ...requirements, this Court will require a showing of prejudice to the defendant's rights. Shack v. State, supra; Leonard v. State, (1968) 249 Ind. 361, 232 N.E.2d 882. However, when there is a lack of substantial compliance, the defendant need not show actual prejudice." Id., 397 N.E.2d at He......
  • Request a trial to view additional results
17 cases
  • U.S. v. Whitlock, No. 78-1305
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 4, 1980
    ...States Code, and entitled "Crimes and Criminal Procedure." In that 1948 codification § 656 attained its present form. 4 Leonard v. State, 249 Ind. 361, 232 N.E.2d 882 (1968), involved an attorney who misappropriated his client's money by putting his own name in the payee blank on a check si......
  • Addonizio, In re, Nos. A--62
    • United States
    • United States State Supreme Court (New Jersey)
    • December 16, 1968
    ...U.S. 912, 79 S.Ct. 1297, 3 L.Ed.2d 1261 (1959); United States v. Gerhart, 275 F.Supp. 443, 462--463 (S.D.W.Va.1967); Leonard v. State, 232 N.E.2d 882, 885 Addonizio's argument seems to rest upon an assumption that the Fourth Amendment makes transactions 'confidential.' Of course, it does no......
  • Oman v. State, No. 46S03-9909-CR-00495.
    • United States
    • Indiana Supreme Court of Indiana
    • September 26, 2000
    ...non-party. A party generally lacks standing to challenge the validity of a subpoena issued to a third party. See, e.g., Leonard v. State, 249 Ind. 361, 365, 232 N.E.2d 882, 885 (1968); Cox v. State, 181 Ind.App. 476, 392 N.E.2d 496 (1979). However, a party may establish standing if he or sh......
  • Wireman v. State, No. 382S118
    • United States
    • Indiana Supreme Court of Indiana
    • March 26, 1982
    ...requirements, this Court will require a showing of prejudice to the defendant's rights. Shack v. State, supra; Leonard v. State, (1968) 249 Ind. 361, 232 N.E.2d 882. However, when there is a lack of substantial compliance, the defendant need not show actual prejudice." Id., 397 N.E.2d at He......
  • Request a trial to view additional results

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