Ritter v. State

• Decision Date: 23 June 1887
• Citation: 12 N.E. 501,111 Ind. 324
• Parties: Ritter v. State.
• Court: Indiana Supreme Court

111 Ind. 324

12 N.E. 501

Ritter

v.State.

Supreme Court of Indiana.

June 23, 1887.

Appeal from circuit court, Elkhart county.

H. C. Dodge, for appellant. F. D. Merritt and The Attorney General, for the State.

Howk, J.

The indictment in this case charged that appellant, Ritter, “on the twenty-third day of September, 1886, at the county of Elkhart and state of Indiana, was then and there an employe of one John McCarter; that said Daniel Ritter, as such employe, then and there had the control and possession of divers moneys, bills, notes, United States treasury notes, and national bank notes, current money of the United States, amounting in all to the sum of $315, of the property of the said John McCarter, to the possession of which the said John McCarter was then and there entitled. A more particular and accurate description of said moneys, bill, notes, United States treasury notes, and national bank notes is to this grand jury unknown, and cannot be given, for the reason that they are in the possession of some person or persons to this grand jury unknown. That said Daniel Ritter did then and there, and while in the employment of said John McCarter, unlawfully, purposely, knowingly, fraudulently, and feloniously purloin, secrete, embezzle, and appropriate to his own use all of said moneys, bills, notes, United States treasury notes, and national bank notes, then and there in the possession of said Daniel Ritter as aforesaid, without then and there having the consent of said John McCarter so to do.” Appellant's motion to quash the foregoing count of the indictment herein was overruled by the court, and this ruling is the first error of which complaint is here made by his learned counsel.

It is manifest that, in and by this first count of the indictment, the state intended to charge appellant with the commission of the public offense which is defined, and its punishment prescribed, in section 1944, Rev. St. 1881. In that section it is provided as follows: “Every officer, agent, attorney, clerk, servant, or employe of any person or persons, corporation, or association, who, having access to, control or possession of, any money, article, or thing of value, to the possession of which his or her employer or employers is or are entitled shall, while in such employment, take, purloin, secrete, or in any way whatever appropriate to his or her 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 or persons, or corporation or association, in whose employment said officer, agent, attorney, clerk, servant, or employe may be, shall be deemed guilty of embezzlement, and, upon conviction thereof, shall be imprisoned in the state prison,” etc.

It is claimed on behalf of appellant that the trial court erred in overruling his motion to quash the first count of the indictment, because it charges that appellant was “an employe of one John McCarter,” and does not state the facts which would enable the court to ascertain and determine whether or not he was such “employe,” within the meaning of that word as used in the statute. In discussing this objection to the indictment, appellant's counsel says: “In criminal pleading it is necessary to specify facts from which the conclusion flows that one is an employe; it will not do to state the conclusion. It was necessary for the pleader to state in the indictment the capacity in which appellant was engaged; and it would be for the court to state, as matter of law, on motion to quash, whether or not, under the averments of the indictment, a public offense had been committed. The ultimate fact to be found, to constitute guilt, was the fact whether appellant was an employe or not an employe. It will not do to charge in the indictment the ultimate fact.”

We do not think this objection to the indictment is well taken, or can be sustained. The word “empl...