Ridge v. State

• Decision Date: 24 January 1923
• Docket Number: 24,103
• Citation: 137 N.E. 758,192 Ind. 639
• Parties: Ridge v. State of Indiana
• Court: Indiana Supreme Court

137 N.E. 758

192 Ind. 639

Ridge v. State of Indiana

No. 24,103

Supreme Court of Indiana

January 24, 1923

From Crawford Circuit Court; Thomas J. Wilson, Judge.

Prosecution by the State of Indiana against Gilbert F. Ridge. From a judgment of conviction, the defendant appeals.

Reversed.

Arnold J. Padgett and Arthur A. Clark, for appellant.

U. S Lesh, Attorney-General, and Mrs. Edward Franklin White, for the state.

OPINION

Willoughby, J.

The appellant was convicted of a violation of § 2285 Burns 1914, Acts 1905 p. 584, § 392. The prosecution was by affidavit in two counts. The first count charged the embezzlement of $ 10,828.12 in money, and the second count charged the embezzlement of three promissory notes dated March 1, 1921, and being in the aggregate sum of $ 14,437.50. Each of the counts charged that the property alleged to have been embezzled was the property of the English-Princeton Oil Company, a common-law trust association; that the appellant was an employe of such English-Princeton Oil Company.

Appellant filed a motion to quash each count of the affidavit, for the reason that the facts stated in said affidavit do not constitute a public offense, and, second, that the said counts of the said affidavit do not state the offense with sufficient certainty. The motion to quash was overruled by the court, and defendant excepted, and the alleged error is one of the questions brought to this court for decision.

The particular objection to this affidavit as pointed out by the appellant is that-- "Each count of the affidavit is defective in this: The property alleged to have been embezzled is not alleged to have been the property of any person."

The appellant contends that the English-Princeton Oil Company stated in the affidavit to be the owner of and entitled to the possession of the money and property alleged to have been embezzled was not recognized in law as a person capable of taking and holding title to property. We think this position is untenable. The statute upon which this prosecution is based recites: (§ 2285 Burns 1914, supra)

"Every officer, agent, attorney, clerk, servant or employe of any person, firm, corporation or association, who, 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, or to the use of others, or who shall knowingly permit any other person to take, purloin, secrete or in any way appropriate to his own use, or to the use of others, any money, coin, bills, notes, credits, choses in action or other property or article of value belonging to or deposited with or held by such person, firm, corporation or association in whose employment such officer, agent, attorney, clerk, servant or employe may be, shall be deemed guilty of embezzlement, * * *."

Under this statute it is not necessary to allege that the owner of the property alleged to have been embezzled had an absolute title to the property. Waterman v. State (1888), 116 Ind. 51, 18 N.E. 63; Wynegar v. State (1901), 157 Ind. 577, 62 N.E. 38; Laycock v. State (1894), 136 Ind. 217, 36 N.E. 137.

Was the offense stated with sufficient certainty? 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 character of the charge against him. Woodward v. State (1885), 103 Ind. 127, 2 N.E. 321; Whitney v. State (1858), 10 Ind. 404. See, also, Agar v. State (1911), 176 Ind. 234, 94 N.E. 819; State v. Cameron (1911), 176 Ind. 385, 96 N.E. 150; Lipschitz v. State (1912), 176 Ind. 673, 96 N.E. 945.

We think the affidavit sufficient to apprise the defendant of the nature and character of the charge against him. The motion to quash each count was properly overruled.

The appellant claims that the court erred in refusing to give certain instructions tendered by him.

There is evidence to the effect that appellant sold 350 shares of the stock of the company to Fred J. Meyer, at $ 165 per share; that at the time of signing the subscriptions for said stock Fred J. Meyer executed three notes in the aggregate sum of $ 14,437.50, being twenty-five per cent. or one-fourth of the total purchase price of said stock; that the notes were executed payable to Fred J. Meyer, and signed by him and then endorsed by him and delivered to appellant. Afterward Meyer repudiated his subscription and claimed that he did not intend to subscribe for any more stock than the amount the notes would pay for, which was eighty-seven and one-half shares. After some negotiation, Alson Roberts, president of the company, sent a certificate of stock for Meyer for eighty-seven and one-half shares to Mr. Meyer's attorney in Vincennes.

Meyer testified that he did not know how many shares of stock he bought from the appellant in the company, but he thought that the notes which he gave covered the entire amount of stock which he bought; that his signature to the subscription card was genuine; that appellant gave him the receipt at the time he signed the card and notes, which receipt stated that he had given the notes for one-fourth of the purchasing price for 350 shares of stock and that he had kept that receipt in his possession until he turned it over to his attorney.

The undisputed evidence in the case was that appellant was to receive twenty-five per cent. commission on all sales made by him. Appellant testified that the agreement between himself and the trustees was that he would have a right to retain the commission on all sales made by him and that he was only required to account for the balance of the purchase price of the stock sold by him. The testimony on behalf of the state was to the effect that appellant was to retain the twenty-five per cent. of the purchase price of the sale of stock on the first ten shares sold by him and thereafter he was to turn all of the proceeds of the sale in to the company and be paid the twenty-five per cent. commission.

In embezzlement an intent to feloniously appropriate the property, at the time of the appropriation, is essential, and, if the appropriation is made upon the belief, honestly entertained by the accused, that he has lawful title or right to appropriate it, the act is not criminal. Beaty v. State (1882), 82 Ind. 228, 232. See, also, Ewbank, Criminal Law § 826.

It is the claim of the appellant in this case that he kept the money and notes which he is charged with embezzling under the honest belief that he had a right so to do under his contract...