Robertson v. State

• Decision Date: 12 December 1934
• Docket Number: 26210
• Parties: ROBERTSON v. STATE
• Court: Indiana Supreme Court

192 N.E. 887

207 Ind. 374

ROBERTSON v. STATE

No. 26210

Supreme Court of Indiana

December 12, 1934

1. FACTORS---Definition---Limited Agency.---A factor is an agent employed to sell goods for his principal which are in his possession for a commission, the ordinary consignment contract creating the relation of factor and principal, and although a factor is in a sense an agent, the agency is a limited one. p. 378.

2. CRIMINAL LAW---Nature and Elements of Crimes---Statutes.---In Indiana crimes and misdemeanors are defined and punished by statute and not otherwise. p. 380.

3. EMBEZZLEMENT---Statutes Applicable---Prosecution Under Wrong Statute.---Proof of embezzlement by a factor, which would constitute the crime of embezzlement as defined by 2474 Burns 1926 (10--1708, Burns 1933), held insufficient to support a conviction under 2470, Burns 1926 (10--1704, Burns 1933), applying to officers, agents, employees, etc. p. 380.

Claycomb & Stump and John F. Watkins, all of Indianapolis for appellant.

James M. Ogden, Atty. Gen., and Harry Taylor, Asst. Atty. Gen., for the State.

OPINION

HUGHES, Judge.

This was a criminal prosecution by the state against the appellant. There were two counts in the indictment. One count was for embezzlement and the other was for grand larceny. The court instructed the jury to find the appellant not guilty on the count charging grand larceny and he was convicted on the count charging embezzlement.

The error relied upon for reversal is as follows:

(1) The court erred in overruling appellant's motion for a new trial.

Several reasons are assigned in the motion for a new trial, but we will only consider the first two in disposing of the case. The first reason is that the verdict of the jury is not sustained by sufficient evidence and the second is that the verdict is contrary to law.

The evidence shows that in 1923, the Haddorff Sales Company, a partnership composed of Oscar E. Lindstrom and Armer E Johnson, doing business as wholesale piano dealers at Roxford, Ill., entered into a contract with the Robertson's Music House, Inc., of Terre Haute, Ind. Lane Robertson, appellant, was president of said Robertson's Music House. The company had a place of business in Terre Haute, and also in Indianapolis. In 1929, the Robertson Piano Company was organized and the said Robertson was also president of this company, and in 1929, entered into a contract with the Haddorff Sales Company, practically the same as that entered into in 1923 between the Haddorff Sales Company and the Robertson Music House.

The contracts provided that the Haddorff Sales Company was to consign pianos and player pianos to the Robertson Music House and the Robertson Piano Company on consignment. The contract provided that 'consignment value' meant the value and price at which the goods were invoiced and that all sales were to be made on terms which would pay the consignment value to the Haddorff Sales Company within twenty-four months. On all cash sales, remittances were to be made immediately in cash for the instrument sold at the consignment value less such discount, if any, or other terms, as might be agreed upon. On all time or part cash sales the consignee was allowed to retain all of the first cash payment made by the purchaser, provided the amount so retained should not be more than the amount by which the sales price exceeds the consignment value. However, if the cash down payment made by the customer at the time of sale was less than $ 75, then the consignee was allowed to retain from the first installments paid enough, in addition to the down payment, to make $ 75, providing, that the total amount so retained shall not be more than the amount by which the sales price exceeds the consignment value. The consignee was to indorse and transfer to the consignor and guarantee the payment of all notes, contracts, or leases taken and all renewal of same. The consignee was to pay all freight charges and other expenses connected with the handling of goods, or other expenses, incurred, including taxes that may have been assessed on same. At the first of each month the consignee was to report to the consignor all instruments consigned and settled for, in stock, and in possession of prospective customers. The contract was limited to the sale of goods to retail customers only and did not give to consignee any right, without the consent of the consignor, to sell or transfer any goods shipped to any dealer, dealers, or prospective dealers.

The contract was quite lengthy, but we think we have stated enough of its provisions for the purpose of this opinion.

It is the contention of the state that the evidence shows an embezzlement of money obtained by the consignee from sales of pianos to various purchasers.

The indictment in this case is predicated on section 2470, Burns' 1926, the same (as amended by Laws 1931, c. 159, § 1) being section 10-1704, Burns' 1933, and the trial was conducted on the theory that this section was the one involved. The appellant was sentenced to the Indiana state prison for a period of not less than two nor more than fourteen years, the penalty provided for in said section.

There are twelve distinct sections of the statutes relating to the crime of embezzlement. The Legislature has attempted in these sections to cover every conceivable case of embezzlement and it is the duty of this court to give each section its proper consideration, and, when we do so, what...