State v. Baker, 30213
| Decision Date | 28 June 1963 |
| Docket Number | No. 30213,30213 |
| Citation | 191 N.E.2d 499,244 Ind. 150 |
| Parties | STATE of Indiana, Appellant, v. Fred O. BAKER and Sol Silver, Appellees. |
| Court | Indiana Supreme Court |
Edwin K. Steers, Atty. Gen. of Indiana, and Carl E. Van Dorn, Deputy Atty. Gen., Indianapolis, for appellant.
Milford M. Miller and W. C. Welborn, Evansville, for appellee.
This is an appeal from an order of the Vanderburgh Circuit Court sustaining appellees' motion to quash the amended affidavit. The State refused to plead further and, instead, filed its praecipe for this appeal. [The appeal was dismissed as to appellee Fred O. Baker for procedural reasons.] The material part of the affidavit was as follows:
'[T]hat FRED O. BAKER and SOL SILVER on or about the 1st day of April A.D., 1960, at said County and State as affiant verily believes did then and there unlawfully, knowingly and feloniously unite, combine, conspire, confederate and agree to and with each other, for the object and purpose and with the unlawful and felonious intent then and there feloniously and fraudulently to take, purloin, secrete and appropriate to their own use lawful and current money of the United States of America in the sum of Two Thousand Nine Hundred Thirty Dollars ($2,930.00), which the ANCHOR FINANCE CORPORATION, a corporation, owned and to the possession of which the said ANCHOR FINANCE CORPORATION was then and there entitled, the said SOL SILVER being then and there President, agent, servant and employee of the ANCHOR FINANCE CORPORATION, a corporation, organized and doing business under the laws of the State of Indiana at Evansville, Indiana, and the said SOL SILVER, by virtue of his office and employment as President, agent, servant and employee, occupied a relationship of special trust to the said ANCHOR FINANCE CORPORATION, had access to the funds of said ANCHOR FINANCE CORPORATION then and there on deposit with the * * * Bank * * *, Evansville, Indiana, and had authority to sign and cash checks drawn on said ANCHOR FINANCE CORPORATION, a corporation.'
Although, from an examination of the affidavit, it would appear that it may be sufficient to properly charge the offense of conspiracy to commit a larceny, since both the state and the appellee have presented the case to us solely on the issue as to whether or not the affidavit alleged grounds sufficient to constitute a charge of conspiracy to commit embezzlement, we will adopt the theory upon which the case is presented to us, and consider it accordingly.
Appellee asserts, first, that the affidavit was defective for the reason that there is no direct and positive allegation that the particular $2,930.00 money, which he allegedly conspired to embezzle, came into Silver's control and possession and was held by him by virtue of his being president, agent, servant and employee of Anchor Finance Corporation. Nor is it alleged that the money came into his control and possession as a result of his access to the funds of the corporation in the bank, or the signing and cashing checks of the corporation drawn on the bank.
Such omission is fatal under the long line of Indiana cases, commencing with Vinnedge v. State (1906), 167 Ind. 415, 418 419, 421, 79 N.E. 353, 354, 355. In that case this court stated:
'Construing the statute in question in the light of the common law, and keeping in mind the character of the offense of larceny, it becomes evident that, in denouncing the offense of embezzlement, it was the legislative intent to make the element of access, control, or possession such an access, control, or possession as was obtained or had by virtue of the employment. * * *
'In Colip v. State (1899), 153 Ind. 584, 55 N.E. 739, 74 Am.St.Rep. 322, this court, in discussing the statute here involved, said: 'The access to, control, or possession of property of the servant or employe intended by the statute, is such access to, control, or possession as arises from the nature of the employment with reference to the particular article of property feloniously appropriated. * * *' This holding was followed in State v. Winstandley (1900), 155 Ind. 290, 53 N.E. 71, wherein it was indicated that the indictment there under consideration was properly quashed because of the omission to allege that the defendants had access to, control or possession of, the money appropriated by virtue of their employment. In State v. Winstandley (1900), 154 Ind. 443, 57 N.E. 109, the court quoted with apparent approval the following statement concerning the requirement of an indictment for embezzlement: 'It must be...
To continue reading
Request your trial
-
Brown v. State
...and what part he allegedly had or was to have in the commission of the substantive or underlying crime. Brown cites State v. Baker, (1963) 244 Ind. 150, 191 N.E.2d 499, and Bickel v. State, (1978) Ind.App., 375 N.E.2d 274, in support of this contention. He further argues that the State's fa......
-
Dorsey v. State, 1268S197
...of the crime or crimes with which he is charged so that he may be able to intelligently prepare a defense. State v. Baker (1963), 244 Ind. 150, 191 N.E.2d 499; Loveless v. State (1960), 240 Ind. 534, 166 N.E.2d 864. In determining whether an affidavit states the alleged offense with suffici......
-
Bickel v. State
...perceive two particular deficiencies in the information. (1) It fails to set out Bickel's role in the conspiracy. See State v. Baker (1963), 244 Ind. 150, 191 N.E.2d 499. (2) It fails to describe the intended felony with the same certainty and particularity as an indictment for committing s......
- Donnella v. Crady, 19554