Miller v. State, 172A25
| Decision Date | 14 August 1972 |
| Docket Number | No. 172A25,172A25 |
| Citation | 153 Ind.App. 54,285 N.E.2d 843 |
| Parties | Wilbur Melvin MILLER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Frank E. Spencer, Indianapolis, for appellant.
Theo, L. Sendak, Atty. Gen., for appellee.
STATEMENT OF THE CASE AND FACTS--This is an appeal by defendant-appellant, Wilbur Melvin Miller (Miller), from a conviction of 'Theft by Failure 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.
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 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 four o'clock, I believe it was, when Mr. 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:
'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 August.
Q. Now can you look at that log and tell us how many bags Burger Chef deposited?
A. Yes, over the weekend apparently there was one bag deposited which was shown as deposited on Monday the 17th. It was bag number one thirty four and the deposit amount was eight hundred thirty eight dollars and seventeen cents. ($838.17).
Q. Is that the only bag that was deposited over the weekend?
A. Right.'
Miller was scheduled to return to work Monday, August 17, at 4:00 P.M., but he failed to report. It was only much later that he was discovered to have gone to California. Miller did not give any explanation as to what happened to the money, why he failed to return to work, or why he went to California.
Miller was found guilty by the jury and sentenced to the Indiana State Prison for a term of not less than one nor more than ten years and fined $1900.00 and costs.
ISSUE--Is the verdict of the jury supported by sufficient evidence of all necessary elements of the crime, i.e., that Miller was under an 'agreement' to make the deposit, that he did not in fact make the deposit, and that he thereby wrongfully dealt with the property as his own?
Miller contends that the State failed to introduce evidence of an 'agreement' between Miller and Burger Chef to make the deposit in the specified amount of $2498.15; that the State failed to show that Miller did not make the specified disposition and; that the State failed to prove Miller dealt with the property as his own and could not rely on the inference created by Ind.Ann.Stat. § 10--3031 (Burns Supp.1972) to supply the omission.
The State counters that while the record does not show any verbalized agreement between Miller and Burger Chef as such, there was a sufficient showing of an agreement from the terms of Miller's employment contract and the duties imposed upon Miller as night manager, all of which were included in the basic job description and written instructions recognized by Miller's own conduct.
DECISION--It is our opinion that Miller's conviction is supported by sufficient evidence of all necessary elements of the crime charged.
Ind.Ann.Stat. § 10--3031 (Burns Supp.1972), (the statute), under which Miller was convicted, provides:
10--3031. Theft by failure to make required disposition of property received.--(1) Scope. A person who obtains property upon agreement, or subject to a known legal obligation, to make specified payment or other disposition, whether from such property or its proceeds commits theft if he deals with the property obtained as his own, and either fails to make the required payment or disposition or, if he is a private fiduciary, fails to make the required payment or disposition aftr demand has been made by the person legally authorized to do so or by the surety on his bond, except where the actor's obligation in the transaction was limited to a promise or other duty to be performed in the future without any present duty to reserve property for such performance. The foregoing applies notwithstanding that it may be impossible to identify particular property as belonging to the victim at the time of the actor's failure to make the required payment or disposition.
(2) Inferences. A person within the categories...
To continue reading
Request your trial
-
RICHMOND State Hosp. v. BRATTAIN
...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
...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 is no......
-
Windle v. State
...307 N.E.2d 73; Strode v. State (1973), Ind.App., 304 N.E.2d 549; Glover v. State (1973), Ind.App., 300 N.E.2d 902; Miller v. State (1972), Ind.App., 285 N.E.2d 843. The evidence circumstantial most favorable to the State was sufficient to support reasonable inferences of Windle's guilt beyo......
-
Williams v. State
...35. 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 h......