Leonard v. State

• Decision Date: 15 January 1968
• Docket Number: No. 30966,30966
• Citation: 249 Ind. 361,232 N.E.2d 882
• Parties: Robert E. LEONARD, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

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.

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

'* * * Here there was no 'relation of special trust in regard to the article appropriated' which this court in Colip v. State, supra, said was necessary to an embezzlement. * * *'

From the above cases it is clear that proof of access in a situation of confidence and trust with an unlawful conversion of the goods by the entrusted party will sustain a conviction of embezzlement. The attorney-client relationship is certainly one of trust and confidence, and in the case at bar the evidence makes it crystal clear that attorney Leonard had the complete confidence of the client-guardian, and that the client-guardian had on numerous occasions entrusted appellant with executed checks with blank payees. The appellant abused that confidence and, therefore, brought himself clearly within the doctrine of Colip v. State, supra, and the succeeding Indiana cases which have sustained this doctrine.

The State of Indiana in the trial of this cause introduced as evidence certain ledger sheets and other written records from the bank where appellant had a checking account. As part of this documentary evidence photo copies of canceled checks drawn on Leonard's account were placed in evidence. At least one of the checks introduced in evidence was signed by the guardian and the appellant had inserted his own name as payee. The appellant now contends that his constitutional rights under the Fourth and Fifth Amendments of the United States Constitution were violated. It is the contention that for the State of Indiana to present in evidence records from appellant's bank violated his guaranteed freedom from illegal search and seizure. He also contends that for the State of Indiana to present photo copies of checks drawn on his account violates his right to freedom from self-incrimination. Appellant takes the mistaken position that the records held by the bank were his records rather than the records of the bank. We must only decide the question of whether the bank lawfully had possession of the records, and appellant does not even contend that all of the documents were not lawfully in the possession of his bank. If the documents were lawfully in the possession of the bank, and they were, then the appellant cannot be held to claim unlawful search and seizure since he did not have possession of the documents. The law in Indiana is well settled that unlawful search and seizure is a personal privilege. Tyler v. State (1931), 202 Ind. 559, 177 N.E. 197; May v. State (1953), 232 Ind. 523, 112 N.E.2d 439. In Minton v. State (1966), Ind., 214 N.E.2d 380, this Court said:

'But even if the search were improper, the appellant cannot raise any question as to the legality of the search of property belonging to other persons. * * *'

The foregoing rule applies to the question of self-incrimination which appellant seeks to interpose. Appellant cites State v. Pence (1909), 173 Ind. 99, 89 N.E. 488, 25 L.R.A.,N.S., 818, in which case a druggist was charged with selling whiskey without a license. The State attempted to compel him to produce applications made to him by persons desiring to purchase liquors upon which sales were made by him. The Court held that he could not be compelled to produce these records,...