Sprague v. State

• Decision Date: 24 June 1932
• Docket Number: No. 24813.,24813.
• Citation: 181 N.E. 507,203 Ind. 581
• Parties: SPRAGUE v. STATE.
• Court: Indiana Supreme Court

203 Ind. 581

181 N.E. 507

SPRAGUE

v.STATE.

No. 24813.

Supreme Court of Indiana.

June 24, 1932.

Appeal from Allen Circuit Court; John H. Aiken, Judge.

F. Guy Sprague was convicted of grand larceny, and he appeals.

Reversed, with instructions.

Olds & Thomas, of Ft. Wayne, for appellant.

Arthur Gilliom, Atty. Gen., and Edw. J. Lennon, Jr., Deputy Atty. Gen., for the State.

MYER, J.

Appellant, in the court below, was indicted, tried, and convicted of grand larceny. Section 2451, Burns' 1926. On appeal to this court he has assigned as errors the overruling of his motion to “quash the first paragraph of the indictment”; the overruling of his motion to be discharged under the statutory third term rule; and the overruling of his motion for a new trial.

[1] The motion to quash is predicated on the theory of two indictments and the failure of the grand jury foreman to indorse on each “A True Bill” and sign the same. The indictment in form for grand larceny and for embezzlement was complete as separate indictments, each closed by the signature of the prosecuting attorney. The two sheets of paper embodying the two charges were fastened together, and, on the back, immediately following the title of the case and the words “Indictment for Grand Larceny and Embezzlement,” was the following indorsement: “A True Bill, Richard J. Blackwell, Foreman.” The trial court evidently treated the document thus prepared as a single indictment consisting of two counts. The two sheets so attached were correctly interpreted as one instrument, and the indorsement by the foreman of the grand jury as stated was sufficient in that respect to repel a motion to quash. Blume v. State, 154 Ind. 343, 56 N. E. 771;State v. Bowman, 103 Ind. 69, 2 N. E. 289.

[2] The question on the motion to discharge the defendant for the reason he was not brought to trial within the period of three terms of court “not including the term at which a recognizance was first taken” depends alone upon whether or not the applicant was instrumental in any way in causing the delay. Section 2252, Burns' 1926. The applicant made a sufficient showing of time to try him at the third term, but there was a counter showing to the effect that the time for his trial was extended by consent of the state upon the request and for various reasons offered by counsel for appellant, otherwise he would have been tried not later than the third term after his recognizance was entered. The showing of the applicant and the counter showing on the part of the state were sufficient to raise an issue of fact for the trial court to decide. That question, under the evidence submitted to the court, was sufficient to justify a finding either for or against the applicant. Under such a state of the record this court would not be justified in disturbing the finding of the trial court on that issue. Gale v. State, 201 Ind. 532, 168 N. E. 241;Rosenberg v. State, 192 Ind. 485, 134 N. E. 856, 137 N. E. 53:Hinshaw v. State, 147 Ind. 334, 47 N. E. 157;Keyes v. State, 122 Ind. 527, 23 N. E. 1097.

Appellant, in his motion for a new trial, aside from verdict not sustained by sufficient evidence and verdict contrary to law, assigned eighty–three alleged erroneous causes, but in his brief, under the head of “Points, Propositions and Authorities,” he calls our attention to fifty–eight rulings of the court alleged to be erroneous which involved the admission or refusal to admit evidence, but is content to cite authorities claimed to sustain three only. Under the head of “Argument,” in support of his contention that the verdict of the jury is contrary to law, he refers to thirty–seven rulings on the evidence.

Upon a careful reading of appellant's brief we have reached the conclusion that it would serve no good purpose to take the space necessary to rule upon each item of evidence claimed to be erroneously admitted or refused, for the reason that these various rulings of the trial court in reality involve only four questions: (1) Refusing to strike out certain testimony; (2) refusing to permit the defendant to prove the prevailing custom of brokers in handling transactions similar to the one between the defendant and the prosecuting witness; (3) admitting evidence of transactions by defendant with other persons said to be similar to the one had with the prosecuting witness prior to, about the time of, and eight months after, the alleged larceny; and (4) admission in evidence of the notice by the state to the defendant to produce his books, records, etc., showing the transactions between appellant and his customers.

At the close of the state's evidence the second count of the indictment charging embezzlement was dismissed. The count charging grand larceny, at present material, stated that F. Guy Sprague “did then and there feloniously, unlawfully and purposely steal, take and carry away of the personal goods and chattels of Jesse W. Bowers, one certificate calling for two hundred (200) shares of the common capital stock of the Sinclair Consolidated Oil Corporation then and there of the value of eight thousand ($8,000.00) dollars.”

[3][4] Appellant first moved to strike out the testimony of the prosecuting witness covering four pages of the record, which he insists was a conversation with one Ford, whom the evidence shows was the manager of appellant's business, but by reference to the record it appears that most of this conversation, if not all, was had with the defendant or with Ford in the presence of the defendant. The second motion to strike related to Sprague assuring the prosecuting witness that the shares of stock, if left with him, would be kept in a safety deposit box at the Lincoln Trust Company. This motion is supported by the claim that this testimony did not tend to prove or disprove the charge of embezzlement. The third motion was on the ground that the answer of the witness Buist, “Yes, I made an examination of the books of Mr. Sprague in the early part of 1922,” was hearsay and a conclusion, and not responsive to the question, “State whether or not you made an examination of any books for him (Mr. Cutshall) back in 1921 or 1922.” It was shown that Mr. Cutshall was the trustee in the Sprague bankruptcy proceedings, and as such trustee had possession of Sprague's books and caused them to be audited by the witness Buist. Thereafter, and prior to the instant trial, the books were returned to Sprague. There was no error in any of these rulings.

[5] The fourth motion was to strike out the evidence of four witnesses for the reason that their testimony was an attempt to show other transactions by the defendant similar to the one charged in the instant case, on the ground that they were not similar, wholly different, in that the instant alleged larceny was predicated upon a special and separate agreement fraudulently made with the prosecuting witness for the purpose of inducing him to part with the possession of his oil stock. Furthermore, that it tended to prove independent offenses. What we shall say on this motion applies to the questions raised on the admission of evidence included in our classification 3 above.

[6] It is obvious that the evidence of transactions with persons other than Bowers, both before and after the one mentioned in the indictment, was admitted, not for the purposeof showing the commission of distinct crimes, but as tending to show a general system inaugurated by appellant to defraud, or as bearing on the question of criminal intent in his dealings with Bowers. Zimmerman v. State, 190 Ind. 537, 130 N. E. 235. The testimony of these witnesses stopped short only of an agreement by appellant to retain the custody of their collaterals at the Lincoln Trust Company or at any other place, but it did tend to show, as in the instant case, the purpose for which they were obtained, collateral on indebtedness for purchases made, and their use by appellant to secure payment of his indebtedness to Wagner & Co., brokers. There was evidence before the jury to the effect that appellant used his customers' collateral with their consent, but whether this was true or not was a question for the jury. To this particular phase of this case we apply the principle that one receiving from another negotiable securities or stocks as collateral security, or as a guaranty of the performance of a principal agreement, would not be authorized, without the consent of the pledgor, to separate it from the primary contract and to use it as security for the payment of his own obligations. To do so would be a misappropriation of the pledged property.

In Warfield v. Adams, 215 Mass. 506, 515, 102 N. E. 706, 710, it is said: “A pledgee has no right to separate collateral from the debt for which it is pledged and to re–hypothecate it for a new loan made to him by a third person. A pledgee (in the absence of a special agreement) is bound to hold the collateral pledged to him as security for the debt for which it was pledged so that the pledgor can redeem his property at any time by paying the debt for which it is security.”

[7][8] Our second combination of questions is fairly exemplified by a refused offer to prove the custom of doing business in the office of Sprague known to Bowers, and the custom of brokers generally to have pledged certificates indorsed. The evidence without dispute conclusively shows that the subject of the larceny, oil stock, was delivered by Bowers to appellant as collateral security for a debt incurred by him in the purchase of additional stock. The stock so pledged was admittedly indorsed by the pledgor. The legal effect of the indorsement is not questioned, nor is it claimed that the pledgor was thereby misled. The agreement, if proved, between appellant and Bowers, was not ambiguous. It fixed the place for safe–keeping of the stock. In effect it forbid the rehypothecation of the collateral by appellant. Under the circumstances here stated generally, Bowers' indorsement of the stock...