Miller v. State, No. 172A25

Docket NºNo. 172A25
Citation153 Ind.App. 54, 285 N.E.2d 843
Case DateAugust 14, 1972
CourtCourt of Appeals of Indiana

Page 843

285 N.E.2d 843
153 Ind.App. 54
Wilbur Melvin MILLER, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 172A25.
Court of Appeals of Indiana, Second District.
Aug. 14, 1972.
Rehearing Denied Oct. 2, 1972.

Frank E. Spencer, Indianapolis, for appellant.

Theo, L. Sendak, Atty. Gen., for appellee.

BUCHANAN, Presiding Judge.

STATEMENT OF THE CASE AND FACTS--This is an appeal by defendant-appellant, Wilbur Melvin Miller (Miller), from a conviction of 'Theft by Failure[153 Ind.App. 55] to Make a Required Disposition of Property Received' pursuant to Ind.Ann.Stat. § 10--3031 (Burns Supp.1972), I.C.1971, 35--17--5--4.

Page 844

The affidavit charging Miller with theft, in part, reads:

'* * * Wilbur Melvin Miller * * * did then and there unlawfully commit the crime of theft in that he obtained the property of Burger Chef * * * then and there of the value of two thousand four hundred ninety eight dollars and fifteen cents ($2,498.15), upon agreement * * * to make a specified disposition of such property, to wit: to deposit said property * * * in the Merchants National Bank and Trust Company * * * and the said Wilbur Melvin Miller did then and there knowingly, unlawfully and feloniously deal with the property as his own and fail to make the aforesaid disposition * * *' (Emphasis supplied.)

During the weekend of August 14--16, 1970, Miller was employed as a night manager for the Burger Chef Restaurant (Burger Chef) at Nora on Route 100 in Marion County, Indiana.

On direct examination the Burger Chef area manager, William Morin (Morin), testified that among other things, Miller's duties as night manager were to:

'* * * handle receipts, see that the store was handled properly, kept clean, that it was locked up properly at night, that any deposits that were his obligation to make on his shift were to be made by him * * *.' (Emphasis supplied.) (Tr. p. 123.)

The general policy of the Burger Chef store at Nora was that each shift manager deposit the receipts from his shift at the Merchants Branch Bank near Nora if they exceeded $1,000.00--the manager not being permitted to leave the money in the store's safe for use by the next shift.

Morin stated on cross-examination that, to his knowledge, the Nora Burger Chef never kept Saturday or Sunday receipts in the store's vault, but rather all moneys were always taken to the Merchants Branch Bank deposit vault. Since each weekend shift, which included Friday, Saturday and Sunday, generally did more than $1,000.00 business, two deposits were [153 Ind.App. 56] required each day, one by the general manager after the day shift ended at 5:00 P.M., and the other by the night manager after closing, making a weekend total of six deposits.

The procedure for depositing shift receipts was for the shift manager to take the receipts to the Merchants Branch Bank in bags provided by the bank and deposit them in the deposit vault, using a special key for this purpose which Miller had in his possession. After the weekend deposits were made, the deposit slips and bags were then picked up at the bank on Monday morning by a responsible Burger Chef employee.

On Sunday, August 16, 1970, the Nora Burger Chef's general manager and day manager, Mr. Richard Patton (Patton), was scheduled to begin his vacation. Consequently, a deviation from the Burger Chef policy requiring each shift manager to make his own deposits was invoked. In order to implement the change in deposit policy for the weekend of August 14--16, Morin personally told Miller of Patton's approaching vacation and that during Patton's vacation Miller was '* * * to proceed as the general manager would and assume his duties pertaining to money and the overall handling of the operation.' The effect of this variance in the deposit policy was to authorize and require Miller to make both the day and night deposits for Saturday and Sunday, August 15 and 16. The unrefuted evidence showed that Miller's possession of the cash receipts was for the sole purpose of making deposits.

The evidence also showed that on both Saturday and Sunday, August 15 and 16, Thomas Walpole (Walpole) counted the day shift receipts around 4:00 P.M. and gave them to Miller, who purported to leave Burger Chef in order to deposit the receipts with the Merchants Branch Bank. Walpole testified to these events thusly:

'Q. What did you do during the day?

A. Well we were rather busy at working the lines then at approximately

Page 845

four o'clock, I believe it was, when Mr. [153 Ind.App. 57] Patton, the General Manager decided it was time to leave and he had me count the registers out. After I got through counting the registers out, I gave the deposit bags to Mr. Miller and he took it to the bank.

Q. Do you know whether or not he did take that bag to the bank?

A. Well he took the bag, I don't know if he--it was one of the bags that was never reported at the bank. * * *

Q. And what did you do Sunday when you got there?

A. Well, Sunday I had to run the store. * * * and I had three of my registers counted and I was on the front line, counting the fourth register when Mr. Miller came in, picked up Sunday's deposit bag and left with it, * * *' (Emphasis supplied.)

Nora Burger Chef store reports admitted in evidence reflected total receipts for Saturday and Sunday, August 15 and 16, in the amount of $2,498.15, which according to Miller's instructions and the established procedures of Burger Chef were to be made in four separate deposits by Miller on the Saturday and Sunday in question.

On Monday, August 17, Walpole went to the Merchants Branch Bank to pick up the six deposit bags and slips from the six deposits presumably made over the weedend. After arriving, however, Walpole and bank officials discovered that only two deposits were made during the weekend, representing the day and night receipts of Friday, the 14th of August. Only two deposit bags were found. The remaining four bags, which were to have contained the Saturday and Sundays deposits, were missing.

Walpole and the bank officials examined the bank's weekend deposit records and discovered that only one deposit in the amount of $838.17 (representing a Friday deposit) was made by the Nora Burger Chef during the weekend of August 14 through 16, 1970. Robert W. Pollett, Assistant Manager of the Merchants Branch Bank, testified as such:

[153 Ind.App. 58] 'Q. Now do you have a log for the weekend of August 15, well August 14 to August 17?

A. Yes, sir.

A. Yes. You are primarily interested in what date now, the Monday following the 15th and 16th?

Q. Is that what you call the weekend deposits?

A. Right. We are not open on Saturday, of course, nor on Sunday, so any brought in Friday night after we close or Saturday or Sunday would be taken into business on Monday, which would be the 17th of...

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16 practice notes
  • Richmond State Hosp. v. Brattain, No. 49A02-0908-CV-718
    • United States
    • Indiana Court of Appeals of Indiana
    • October 8, 2010
    ...N.E.2d 485, 488. Cf., New Albany Forge and Rolling Mill v. Cooper (1892), 131 Ind. 363, 369, 30 N.E. 294, 296; Miller v. State (1972), 153 Ind. App. 54, 61, 285 N.E.2d 843, 847; Michel v. Forde (1963), 135 Ind. App. 360, 372, 191 N.E.2d 507, 513; McDowell v. Duer (1922), 78 Ind. App. 440, 4......
  • RICHMOND State Hosp. v. BRATTAIN, No. 49A02-0908-CV-718.
    • United States
    • Indiana Court of Appeals of Indiana
    • December 27, 2010
    ...73 N.E.2d 485, 488. Cf, New Albany Forge and Rolling Mill v. Cooper (1892), 131 Ind. 363, 369, 30 N.E. 294, 296; Miller v. State (1972), 153 Ind.App. 54, 61, 285 N.E.2d 843, 847; Michel v. Forde (1963), 135 Ind.App. 360, 372, 191 N.E.2d 507, 513; McDowell v. Duer (1922), 78 Ind.App. 440, 44......
  • Doyle v. State, No. 4-782A233
    • United States
    • Indiana Court of Appeals of Indiana
    • September 11, 1984
    ...Wells v. State, (1980) Ind.App., 401 N.E.2d 779, 780-781; State v. Gates, (1979) Ind.App., 394 N.E.2d 247, 248; Miller v. State, (1972) 153 Ind.App. 54, 60, 285 N.E.2d 843, 846-847. Even when the evidence in this case is viewed, as it must be, in the light most favorable to the State, there......
  • Williams v. State, No. 1-880A220
    • United States
    • Indiana Court of Appeals of Indiana
    • January 27, 1981
    ...It is well established that a conviction may be supported by circumstantial evidence. Walker v. State, supra; Miller v. State (1972), 153 Ind.App. 54, 285 N.E.2d 843; Vaughn v. State (1971), 255 Ind. 678, 266 N.E.2d 219. The specific test for the examination of circumstantial evidence has b......
  • Request a trial to view additional results
16 cases
  • Richmond State Hosp. v. Brattain, No. 49A02-0908-CV-718
    • United States
    • Indiana Court of Appeals of Indiana
    • October 8, 2010
    ...N.E.2d 485, 488. Cf., New Albany Forge and Rolling Mill v. Cooper (1892), 131 Ind. 363, 369, 30 N.E. 294, 296; Miller v. State (1972), 153 Ind. App. 54, 61, 285 N.E.2d 843, 847; Michel v. Forde (1963), 135 Ind. App. 360, 372, 191 N.E.2d 507, 513; McDowell v. Duer (1922), 78 Ind. App. 440, 4......
  • RICHMOND State Hosp. v. BRATTAIN, No. 49A02-0908-CV-718.
    • United States
    • Indiana Court of Appeals of Indiana
    • December 27, 2010
    ...73 N.E.2d 485, 488. Cf, New Albany Forge and Rolling Mill v. Cooper (1892), 131 Ind. 363, 369, 30 N.E. 294, 296; Miller v. State (1972), 153 Ind.App. 54, 61, 285 N.E.2d 843, 847; Michel v. Forde (1963), 135 Ind.App. 360, 372, 191 N.E.2d 507, 513; McDowell v. Duer (1922), 78 Ind.App. 440, 44......
  • Doyle v. State, No. 4-782A233
    • United States
    • Indiana Court of Appeals of Indiana
    • September 11, 1984
    ...Wells v. State, (1980) Ind.App., 401 N.E.2d 779, 780-781; State v. Gates, (1979) Ind.App., 394 N.E.2d 247, 248; Miller v. State, (1972) 153 Ind.App. 54, 60, 285 N.E.2d 843, 846-847. Even when the evidence in this case is viewed, as it must be, in the light most favorable to the State, there......
  • Williams v. State, No. 1-880A220
    • United States
    • Indiana Court of Appeals of Indiana
    • January 27, 1981
    ...It is well established that a conviction may be supported by circumstantial evidence. Walker v. State, supra; Miller v. State (1972), 153 Ind.App. 54, 285 N.E.2d 843; Vaughn v. State (1971), 255 Ind. 678, 266 N.E.2d 219. The specific test for the examination of circumstantial evidence has b......
  • Request a trial to view additional results

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