Schoenrock v. State, 24285.

• Decision Date: 13 November 1923
• Docket Number: No. 24285.,24285.
• Citation: 141 N.E. 351,193 Ind. 580
• Parties: SCHOENROCK v. STATE.
• Court: Indiana Supreme Court

193 Ind. 580

141 N.E. 351

SCHOENROCK

v.STATE.

No. 24285.

Supreme Court of Indiana.

Nov. 13, 1923.

Appeal from Criminal Court, Marion County; Jas. A. Collins, Judge.

Henry Schoenrock was convicted of embezzlement, and he appeals. Reversed, with instructions.

Holmes & McCallister, of Indianapolis, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. Edward F. White, Deputy Atty. Gen., for the State.

WILLOUGHBY, C. J.

The appellant was prosecuted by indictment for a violation of section 2285, Burns' 1914, which defines the offense of embezzlement by employees. The indictment, omitting the formal parts, is as follows:

“The grand jurors for the county of Marion and state of Indiana, upon their oaths, present that Henry Schoenrock, on or about the 1st day of December, A. D. 1921, at and in the county of Marion and state aforesaid, being then and there an employee and cashier of one, the Beech Grove State Bank (a corporation), receive for the said Beech Grove State Bank (a corporation), and take into his possession by virtue of his said employment as aforesaid, the following property, to wit: Two 4 1/4 per cent. First Liberty Loan Converted Bonds of the United States of America then and there of the value of $1,000, being then and there the property of one Charles Lancaster then and there being, and to the possession and ownership of which bonds the said Charles Lancaster was then and there lawfully entitled; that the said Henry Schoenrock, while in the employment of said Beech Grove State Bank (a corporation), and in possession and control of such bonds as aforesaid, did then and there unlawfully, feloniously and fraudulently without the consent of the said Charles Lancaster, take, purloin, secrete, embezzle and appropriate the said bonds then and there the property of the said Charles Lancaster then and there of the value of $1,000, for the use and benefit of the said Beech Grove Bank (a corporation), then and there being, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Indiana.”

After a motion to quash the indictment had been made and overruled, a trial by jury resulted in a verdict of guilty as charged. A motion for a new trial was made and overruled. Appellant then moved in arrest of judgment, which motion was overruled. Exceptions to the action of the court in overruling each of said motions were duly taken. The court then rendered judgment on the verdict of the jury. Appellant then appealed, and the errors assigned are: (1) The court erred in overruling appellant's motion to quash the indictment. (2) The court erred in overruling appellant's motion for a new trial. (3) The court erred in overruling appellant's motion in arrest of judgment.

The first cause assigned in appellant's motion to quash the indictment is that the facts stated in the indictment do not constitute a public offense.

Section 2285, Burns' 1914, provides as follows:

“Every officer, agent, attorney, clerk, servant or employee 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 employee may be, shall be deemed guilty of embezzlement. ***”

[1] The appellant urges that the indictment does not allege that the employer of the appellant was entitled to the possession of the bonds alleged to have been embezzled, and that the property came into the possession of the accused by virtue of his employment. He claims that for these reasons the indictment is insufficient on motion to quash.

An essential element of the crime of “embezzlement,” as defined by the statute under which this indictment is drawn, is the employer's right of possession of the thing embezzled. State v. Nugent...