Roberts v. State, 26516.

Decision Date30 March 1936
Docket NumberNo. 26516.,26516.
Citation200 N.E. 699,210 Ind. 375
PartiesROBERTS v. STATE.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Donn M. Roberts was convicted of embezzlement of motor vehicle fuel license fees, and he appeals.

Affirmed.

Appeal from Vigo Circuit Court; Frank R. Miller, Judge.

Orph M. Hall and Hunter J. Von Leer, both of Terre Haute, for appellant.

Philip Lutz, Jr., Atty. Gen., and Paul K. Shepard, Deputy Atty. Gen., for the State.

ROLL, Chief Justice.

Appellant was prosecuted upon an affidavit in one count charging him with the crime of embezzlement of motor vehicle fuel license fees, under the provisions of chapter 68 of the Acts of the Special Session of 1932. Acts Special Session 1932, c. 68, p. 249, § 1, and § 16 as amended by Laws 1933, c. 159, § 9, sections 47-1501, 47-1519, Burns' Ind.St.Ann.1933, sections 16024 and 16043, Baldwin's Ind.St.1934. Appellant was convicted, and he appeals, and assigns twelve errors for reversal. All of the assigned errors are waived by failure to properly present them by his brief, except the fifth error assigned, which relates to the action of the court in overruling his motion to quash.

The first four assigned errors relate to action taken by the court on a plea in abatement filed by appellant; but neither the plea in abatement nor the substance thereof is set out in appellant's brief, and we are unable to tell from appellant's brief what question he is attempting to present. Under such circumstances this court will deem the question waived. Schreiber et al. v. Worm (1904) 164 Ind. 7, 72 N.E. 852;Tongret et al. v. Carlin et al. (1905) 165 Ind. 489, 75 N.E. 887;Henderson v. Henderson (1905) 165 Ind. 666, 75 N.E. 269;Tisdale v. State (1906) 167 Ind. 83, 78 N.E. 324.

The fifth assigned error calls in question the sufficiency of the affidavit.

The affidavit, omitting the formal parts, reads as follows:

Charles C. Whitlock swears that Donn M. Roberts, late of said county, on or about the 25th day of September, 1933, and for a period of one year immediately prior thereto at said County and State aforesaid was then and there a motor vehicle fuel dealer engaged in the buying and selling of motor vehicle fuels under and by virtue of the laws of the State of Indiana, and at said time and place did then and there, and theretofore receive, collect, and have in his possession as public money the property of the State of Indiana a certain sum of money to-wit: the sum of $312.08 as motor vehicle fuel license fees public property, the property of the State of Indiana by virtue of and under the provisions of the laws of the State of Indiana. He, the said Donn M. Roberts, at said time and place then and there having received, collected and taken into his possession said sum of $312.08 prior thereto as gasoline motor vehicle fuel license fees from the sale of said motor vehicle fuels prior thereto under the provisions of the laws of the State of Indiana, and the said Donn M. Roberts at said time in said County and State aforesaid did then and there unlawfully and feloniously neglect, fail, and refuse to pay said sum of $312.08 or any part thereof to the Auditor of the State of Indiana at the said time and place, as required by the laws of the State of Indiana, and that the said Donn M. Roberts has ever since at all times since said date failed, refused and neglected to pay said sum of $312.08, or any part thereof to the said Auditor of the State of Indiana, all being then and there contrary to the form of the Statutes in such cases made and provided and against the peace and dignity of the State of Indiana.’

Appellant, in his brief under the fifth error relied upon for reversal, questions the sufficiency of the affidavit for the reason that it fails to charge in direct and specific language that any of the money was received and held by appellant in trust and by virtue of his trust and fiduciary capacity and that it was so held by him at the time of the alleged embezzlement.

Section 9 of chapter 159 of the Acts of 1933, p. 838, which section amended section 16 of chapter 68, Acts 1932, Sp.Sess., pp. 249, 268 (Burns' Ann.St.1933, § 47-1519), provides: ‘That section 16 of the above entitled act be amended to read as follows: Sec. 16. That the third above entitled act be amended by creating and adding thereto a supplemental section to be numbered section 19 to read as follows: Sec. 19. If any person, firm or corporation or any resident trustee of any firm or corporation, or any officer, agent, employee or representative of any person, firm or corporation, who shall receive or collect any money as motor vehicle fuel license fees under the provisions of this act, shall fail to pay the same to the auditor of state of Indiana at the time or times required by this act, he or it, as the case may be, shall be guilty of embezzlement of public money, the property of the State of Indiana.’

Section 1, chapter 68, Acts 1932, Sp.Sess., p. 249, being section 47-1501, Burns' Ind.St.Ann. 1933, section 16024, Baldwin's Ind.St.1934, provides among other things that: ‘Any and all sums of money paid by the purchaser to the dealer, as motor vehiclefuel license fees, shall be and remain public money, the property of the state of Indiana, and shall be held in trust by such dealer for the sole use and benefit of the state of Indiana until paid to the auditor of state as hereinafter provided.’

The affidavit specifically charges that appellant was, at the time he received the fees, a dealer engaged in selling motor-vehicle fuel and received the sum of $312.08, a motor-vehicle fuel license fee from the sale of motor-vehicle fuel. By the very terms of the statute, appellant was the agent and trustee of the state when he, as a dealer, sold motor-vehicle fuel, and collected the fee provided in the statute, and could receive it in no other capacity, other than that of trustee. The fees collected were the property of the state, and appellant was, under the statute, the trustee of the money belonging to the state. The allegations of the affidavit were sufficient under the statute to show that appellant received and held the money in a...

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