Sims v. State
| Decision Date | 22 April 1925 |
| Docket Number | 24,701 |
| Parties | Sims v. State of Indiana |
| Court | Indiana Supreme Court |
Rehearing Denied February 24, 1926.
1 CONSPIRACY.---Evidence held to sustain conviction of conspiracy to embezzle bank certificates and not conspiracy to steal them.---Evidence held sufficient to sustain conviction of conspiracy with bank cashier to embezzle certificates of deposit, as against contention that proof established conspiracy to commit larceny of the certificates and not embezzlement. p. 313.
2. CRIMINAL LAW.---Requested instructions in prosecution for conspiracy with a, bank cashier to embezzle certificates of deposit held properly refused because invading province of jury.---In a prosecution for conspiracy with the cashier of a bank to embezzle certificates of deposit, there was no error in refusing to give instructions that if the alleged conspirators, in good faith, took the certificates and tried to sell them for the purpose of averting a failure of the bank caused by overdrafts of the conspirators, then the element of intent to commit a felony would be lacking, and they would not be guilty of criminal conspiracy, as to have given them would have invaded the province of the jury. p 317.
3. CRIMINAL LAW.---Presumption of innocence continues until the close of the trial and jury should weigh the evidence in the light of such presumption and endeavor to reconcile the evidence with the presumption.---The presumption of innocence continues until the close of the trial, and the jury should weigh the evidence in the light of such presumption, and endeavor to reconcile all the evidence with the presumption of innocence, if it can. p. 321.
4. CRIMINAL LAW.---Instruction on presumption of innocence of defendant held inaccurate but harmless.---An instruction that the presumption of innocence of the defendant must be indulged "until the state by its evidence convinces you beyond a reasonable doubt of his guilt," while not strictly accurate, nor exactly equivalent to the language of the statute (2302 Burns 1926, 2137 Burns 1914), was not reversible error in view of other instructions on the same subject. p. 321.
5. CRIMINAL LAW.---Defendant cannot complain that an instruction was incomplete, but must request the giving of a complete instruction.---A defendant cannot complain that an instruction did not state the law as fully and completely as it should have done, as his remedy, if it was correct as far as it went, was to request the giving of a complete instruction. p. 321,
From Bartholomew Circuit Court; John W. Craig, Special Judge.
James M. Sims was convicted of conspiracy to embezzle certificates of deposit issued by the cashier of a bank, and he appeals.
Affirmed.
Joseph R. Morgan, C. J. Kollmeyer and Fred A. Eldean, for appellant.
U. S. Lesh, Attorney-General and Connor D. Ross, Deputy Attorney-General, for the State.
Appellant was prosecuted on a charge, as stated in the fourth count of the affidavit, in effect, that on or about September 20, 1923, at Bartholomew county, Indiana, he and the cashier of the Hope State Bank feloniously and knowingly conspired and agreed together unlawfully and fraudulently to take, purloin, secrete and appropriate to their own use ten certificates of deposit of said bank each calling for $ 3,000, that were of the total value of $ 30,000, which came into the possession of said cashier by virtue of his office as cashier of the bank, and of which he was entitled to have control as such official of the bank, to the possession and ownership of which said bank was lawfully entitled, and that appellant did feloniously and knowingly agree with said cashier that he would aid and abet the cashier to take, purloin, secrete and convert the same. Other counts charged the defendants with conspiracy to steal the same certificates, but appellant, who was tried separately, was only found "guilty of conspiracy to commit the felony of embezzlement as charged in the fourth count," etc. Overruling the motion for a new trial is the only error assigned, under which appellant challenges the sufficiency of the evidence to sustain the verdict, and complains of the giving and refusal to give certain instructions.
There was evidence, which the jury may have believed, as follows: That appellant's codefendant, Romie K Ferry, was and for several years had been the cashier of the Hope State Bank, at Hope, in Bartholomew county, Indiana, and, as such officer, had the custody, possession and control, on behalf of the bank, of all its property and assets, with power to execute and issue certificates of deposit in its name binding it to pay the sums of money therein certified to have been deposited; that appellant was the president and manager of the Republic Refining Company, which operated a refinery and a number of "filling stations" for the sale of gasoline and oil, and Romie K. Ferry was a director of said company from the time of its organization in February, 1923, until September 8, following; that appellant was also interested in the operation of another refinery not owned by said company; that the Republic Refining Company had an account with the Hope State Bank beginning March 5, and appellant had an account beginning June 21, 1923; that, during the summer, appellant and the Republic Refining Company made large deposits, almost daily, against which they drew checks; that both of the accounts were operated together by appellant in conducting the business of the company; that in July, 1923, appellant made an arrangement with the cashier of a bank in Pennsylvania to draw on him through the Hope State Bank, sending him checks to meet the drafts, and there were many such transactions in the next three months; that deposits were made by appellant in the Hope State Bank of many checks and notes, either to his own account, or to the account of the Republic Refining Company, or for which certificates of deposit in the name of one or the other were taken, which checks and notes were dishonored, and were returned to the bank, as a liability of the depositor; that by reason of these facts, appellant, on September 13, 1923, and thereafter, was liable to the Hope State Bank, as for an overdraft that amounted to $ 28,000, and this was true at the time when appellant was trying to sell the certificates of deposit mentioned in the affidavit; but that the books of the bank did not show this condition, because $ 28,000 of checks and drafts deposited by appellant that had been dishonored were not charged back on the books; that in May, 1923, appellant procured said Ferry to execute and issue, as cashier of the Hope State Bank, two certificates of deposit for $ 5,000 each, payable to appellant, which he carried away, indorsed, and negotiated by depositing them as security for the performance of a ninety-nine year lease on certain lots in Indianapolis that he had taken in his own name, which obligated him to erect a building on the leased property; that he did not give any consideration for said certificates of deposit until after they had been so negotiated in exchange for the lease, and then he had the lease recorded as made to himself, and did not assign it on the record, but only sent to Ferry an unofficial copy of it, with his note payable to R. K. Ferry and a paper purporting to be an assignment of the lease to Ferry, individually, which was not acknowledged, and therefore could not be recorded; but otherwise he gave the bank nothing; that these certificates of deposit were still outstanding in the hands of the lessor at the time of the trial; that no record of them was made at the bank, and its president did not learn they had been issued until after October 15; that on September 8, 1923, appellant and Ferry and other holders of stock to the amount of fifty-three per cent. of the capital stock of the Republic Refining Company assigned all of their stock to J. P. Hutchens upon the execution by E. W. Bowen of a promise in writing to make a loan to said company of $ 15,000 "to be secured by mortgage on the assets of said company for the purpose of enabling said company to carry on its business," and subject to the conveyance to appellant of all interest, as lessee, in "the refining property at Portland and the three filling stations located at Portland, Winchester and Decatur," all liabilities of such refinery to be assumed by appellant; that five days later, on September 13, a receiver was appointed for the Republic Refining Company, and on October 5, 1923, it was adjudged bankrupt by the federal court; that about the middle of September, 1923, appellant and Ferry had dinner together, and appellant suggested to Ferry that he issue some certificates of deposit, which appellant would sell to his friends, and use the money to take up the overdrafts of appellant and the Republic Refining Company; that appellant said he needed the money at once, that certificates...
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