Roberts v. State
| Decision Date | 23 April 1914 |
| Docket Number | No. 22,418.,22,418. |
| Parties | ROBERTS v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Criminal Court, Marion County; Joseph E. Markey, Judge.
Daniel P. Roberts was convicted of grand larceny, and appeals. Reversed, with directions to grant a new trial.
Ulric Z. Wiley, of Indianapolis, for appellant. Thomas M. Honan, Atty. Gen., and Thomas H. Branaman, Asst. Atty. Gen., for the State.
Appellant was convicted of the crime of grand larceny. The indictment contains a single count, and charges that appellant stole a certain check, for the payment of $200, averred to have been the property of Frank T. Dowd and of the value of $200. A copy of the check is set out in the indictment, and reads as follows: Appellant moved to quash the indictment for the alleged reason that the facts stated do not state a public offense. The overruling of this motion is here assigned as error.
[1] Appellant claims the indictment is insufficient because it fails to allege that Dowd had funds in the bank to meet the check. Section 2122, Burns 1914, makes a bank check the subject of larceny. Stealing personal property of the value of $25 and upwards constitutes grand larceny. Section 2269, Burns 1914. If the value of the stolen property be under $25, the crime is petit larceny. Section 2270, Burns 1914. The indictment here avers that the value of the check was $200. This court has held that the value of such an instrument is for the determination of the jury. Burrows v. State, 137 Ind. 474, 476, 37 N. E. 271, 45 Am. St. Rep. 210. Even if there had been no funds in bank to meet the check, its felonious taking would have constituted petit larceny, under our statute, and that renders the indictment sufficient to repel the motion to quash that was here interposed.
[2] Appellant also assails the indictment because it does not aver that appellant cashed the check, or presented it for payment; and because the check, being payable to the order of a third party, could not have been cashed by appellant. To constitute the crime of larceny it is not necessary that the taking be for the purpose of gain to thief. Best v. State, 155 Ind. 46, 57 N. E. 534. If the purpose be to deprive the owner of the property stolen, it is immaterial whether the thief steals it for his own use or that of another. Gillett, Crim. Law (2d Ed.) §§ 545, 546. There was no error in overruling appellant's motion to quash.
Counsel for appellant earnestly contends that there is no evidence to sustain a finding of guilty of the crime of larceny, and that if there is evidence of any crime it is that of obtaining property by false pretense. Considering only the evidence most favorable to the prosecution, the trial court was warranted in finding the following facts: Appellant went to the prosecuting witness, Dr. Dowd, and offered to sell him stock in a life insurance company, then being organized in Terre Haute, known as the Great Western Life Assurance Company, and represented to him that said company, on the completion of its organization, would take over the assets and business of a life insurance company called the Great Western Life Insurance Company; that the latter company had a premium income of $40,000, and by taking over said business the new company would be enabled to pay an 8 per cent. dividend on its capital stock from the start. The witness relied on the representations, and by reason thereof subscribed for a block of the offered stock. The check in question was executed some time afterwards, in part payment of the stock subscription. The representations in regard to the income of the Great Western Life Insurance Company were false. Its income was less than $900 per annum. At the time of the trial a receiver was in control of the assets of the Great Western Life Assurance Company. Dowd wrote and signed the check, payable to the Assurance Company, and delivered it to appellant with instructions to give it to the company, for credit on his stock subscription. Appellant, who was the agent of the company for the sale of its capital stock, delivered the check to the proper officers of the corporation who cashed the same...
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