Sheets v. State

• Decision Date: 09 December 1940
• Docket Number: 27422.
• Citation: 30 N.E.2d 309,217 Ind. 676
• Parties: SHEETS v. STATE.
• Court: Indiana Supreme Court

30 N.E.2d 309

217 Ind. 676

SHEETS v. STATE.

No. 27422.

Supreme Court of Indiana

December 9, 1940

Appeal from Marshall Circuit Court; Frank Martindale Special judge.

Reed & Reed, of Knox, for appellant.

Samuel D. Jackson, Atty. Gen., and Geo. B. Davis, Deputy Atty. Gen for appellee.

SHAKE Judge.

The appellant was indicted, tried by a jury, and convicted of the crime of embezzlement. He has appealed, assigning error on the overruling of his motion to quash and his motion for a new trial. Omitting formal parts, the indictment reads as follows:

'* * * that one Floyd Sheets, late of said county, on the 8th day of December, 1938 did then and there purchase of Brady Brothers twenty-one Montana horses on a conditional sales contract in which contract the legal title to said horses was retained by said Brady Brothers. That there-after, the said Floyd Sheets received the consent of said Brady Brothers to sell said horses before the payment of said note was made upon the condition that all money received from said Floyd Sheets from the sale of any of said horses would be and constitute the property of said Brady Brothers and that said Brady Brothers would immediately be entitled to the possession of such money so received by the said Floyd Sheets. That thereafter in said county and state aforesaid the said Floyd Sheets did then and there on the 9th day of March, 1939, sell to one, James, Calhoun one bag (sic) colored Montana horse, which said horse was one of the horses purchased by said Floyd Sheets from said Brady Brothers under said conditional sales contract, and the said Floyd Sheets did then and there receive from said James C. Calhoun One Hundred Twenty-Five ($125.00) Dollars, which money was then and there the property of Brady Brothers and the possession of which money the said Brady Brothers were then and there lawfully entitled. That the said Floyd Sheets then and there acting as the agent and servant of Brady Brothers for the purpose of delivering said money so received to said Brady Brothers did then and there feloniously and fraudulently take, purloin, secrete, and appropriate to his own use the money aforesaid * * *.'

It is contended that the facts stated in the indictment do not constitute a public offense for two reasons: (1) The absence of a necessary allegation, to-wit: that the appellant received the money which he is alleged to have embezzled by virtue of his being the agent and servant of Brady Brothers, and (2) it affirmatively appears from the indictment that the appellant occupied the relationship of conditional vendee, rather than that of agent or servant of Brady Brothers.

With respect to the first alleged defect in the indictment, it is urged that the clause, 'the said Floyd Sheets then and there acting as the agent and servant of Brady Brothers for the purpose of delivering said money so received to said Brady Brothers,' does not positively charge that the appellant was the agent and servant of Brady Brothers and that the money alleged to have been embezzled came into his hands by virtue of such agency or employment. 'It is fundamental that, in embezzlement, the taking and receiving part of the charge must be connected and coupled with the statement that such taking and receiving was by virtue of the office, or the agency, or the employment.' Hinshaw v State, 1919, 188 Ind. 147, 156, 122 N.E. 418, 421. In consequence of this rule, it has been held that it is not sufficient to merely charge that at the time of the alleged appropriation the defendant was the officer, agent, or servant of the owner of the funds, or that the defendant obtained possession of such funds as such officer, agent, or servant, but it must be made to appear that the accused had or obtained possession of the thing appropriated by virtue of such employment. State v. Winstandley, 1900, 155 Ind. 290, 58 N.E. 71; Vinnedge v. State, 1906, 167 Ind. 415, 79 N.E. 353; Wright v. State, 1907, 168 Ind. 643, 81 N.E. 660. We do not mean to suggest that it is necessary to employ the specific words 'by virtue of' such employment to constitute a good charge of embezzlement, but we do understand the cases to hold that that ultimate fact must be charged by some appropriate language. Frost v. State, 1912, 178 Ind. 305, 99 N.E. 419; Green v. State, 1933, 204 Ind. 349, 184 N.E. 183, 87 A.L.R. 1251. While the participial form of averment is not to be commended, it is not now regarded as fatal...