State v. Ensley

• Decision Date: 10 January 1912
• Docket Number: 21,920
• Citation: 97 N.E. 113,177 Ind. 483
• Parties: State of Indiana v. Ensley
• Court: Indiana Supreme Court

97 N.E. 113

177 Ind. 483

State of Indiana v. Ensley

No. 21,920

Supreme Court of Indiana

January 10, 1912

Rehearing Denied May 9, 1912.

From Criminal Court of Marion County (37,311); Ovid B. Jameson Special Judge.

Prosecution by the State of Indiana against Oliver P. Ensley. From a judgment quashing the indictment, the State appeals.

Reversed.

Thomas M. Honan, Attorney-General, Thomas H. Branaman, Edwin Corr and James E. McCullough, for the State.

Frank S. Roby, Ward H. Watson and Elias D. Salsbury, for appellee.

Morris C. J. Jordan and Myers, JJ., dissent.

OPINION

Morris, C. J.

Appellee, a former treasurer of Marion county, was charged by indictment with the crime of embezzlement, under § 2284 Burns 1908, Acts 1905 p. 584, § 391.

The indictment, omitting caption and signature, is as follows: "The grand jurors for the county of Marion and State of Indiana, upon their oaths present that on the -- day of November, 1904, Oliver P. Ensley was duly elected to the office of treasurer of the county of Marion in the State of Indiana for the term of two years, which said term commenced on the 1st day of January, 1906, and ended on the 31st day of December, 1907. That said Oliver P. Ensley was duly commissioned, gave bond and duly qualified as such treasurer of said county and entered upon the discharge of the duties of the office of treasurer of said county on the 1st day of January, 1906, and was then and thereafter the duly elected, qualified and acting treasurer of said county and discharged the duties of treasurer of said county until the 31st day of December, 1907, at which said date the said term of office of said Oliver P. Ensley as such treasurer of Marion county expired. That on the day of November, 1906, one Edward J. Robison was duly elected to said office of treasurer of said county of Marion for the term of two years, which said term commenced on the 1st day of January, 1908. That said Edward J. Robison was duly commissioned, and on the 24th day of December, 1907, gave bond, duly qualified and on the 1st day of January, 1908, duly entered upon the discharge of the duties of said office of treasurer of Marion county as the successor of said Oliver P. Ensley, the then incumbent of said office of treasurer of said county. That at the time of the expiration of the said term of office of the said Oliver P. Ensley as such treasurer, the said Oliver P. Ensley then and there surrendered said office of treasurer to the said Edward J. Robison and at the time of the surrender of said office of treasurer as aforesaid the said Oliver P. Ensley then and there had in his hands as such treasurer of said county the sum of $ 20,000 in money of the value of $ 20,000, which said sum of money had come into the hands of said Oliver P. Ensley as such treasurer by virtue of his said office of treasurer and which sum was then and there due from the said Oliver P. Ensley as treasurer as aforesaid to his successor in office, the said Edward J. Robison as treasurer of said county as aforesaid; that the said Oliver P. Ensley did then and there unlawfully, feloniously and fraudulently fail, neglect and refuse to pay over said $ 20,000 or any part thereof to the said Edward J. Robison although said Edward J. Robison was entitled to receive the same and was ready and willing to receive the same, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana."

The defendant filed a motion to quash the indictment, for the alleged reasons that it did not charge an offense, because it failed to aver a demand, and because the ownership of the money was not sufficiently averred. The lower court sustained the motion to quash, because, as we are informed by appellee's brief, no demand was averred. This appeal, prosecuted by the State, is based on the alleged error of the court in sustaining this motion.

The indictment was returned under § 391 of an act concerning public offenses, approved March 10, 1905 (Acts 1905 p. 584, § 2284 Burns 1908). This was a substantial reenactment of an act approved March 5, 1883 (Acts 1883 p. 106, § 2021 Burns 1901). Section 391 of the act of 1905, supra, is as follows: "It shall be the duty of each clerk of the circuit court, sheriff and treasurer of each county in this State, and of every other county, state, township, city or town officer in this State receiving money in his official capacity, at the expiration of his term of office, to pay over to his successor in office all moneys of every description, to whomsoever due, remaining in his hands at the expiration of such term, taking the receipt of such successor therefor; and such successor and his sureties shall be liable therefor on his official bond, as if the same had been originally collected by him; and any clerk, treasurer, sheriff or other such county, state, township, city or town officer, so failing to so pay over such moneys, and any such successor to any clerk, treasurer, sheriff or other such officer who shall fail to pay over any such moneys to parties entitled to receive the same, when called on to do so, shall be deemed guilty of embezzlement, and, on conviction, shall be fined in any sum not exceeding one thousand dollars, and be imprisoned in the state prison not less than one year nor more than five years."

It is claimed by appellee that the italicized phrase, "when called on to do so," qualifies not only the immediately preceding clause, "and any such successor to any * * * treasurer * * * who shall fail to pay over any such moneys to parties entitled to receive the same," but also the clause preceding the latter, which reads, "and any * * * treasurer * * * so failing to so pay over such money," and, therefore, no offense is charged, unless it is averred in the indictment that the defendant failed to pay to his successor after he was "called on to do so."

On the other hand, the Attorney-General contends that the italicized phrase qualifies only the clause immediately preceding it, and the statute defines two offenses, viz., the failure of a retiring officer to pay to his successor, at the expiration of his term, money then remaining in his hands, and the failure of the successor to pay over any such moneys to parties entitled thereto, on demand, or "when called on to do so."

It is admitted by counsel for appellee that the treasurer's failure to pay to his successor money remaining in his hands, at the expiration of his term, renders him liable on his bond without demand. Foster v. State, ex rel. (1899), 22 Ind.App. 471, 53 N.E. 1095; Boyd v. State, ex rel. (1908), 42 Ind.App. 243, 84 N.E. 350. These cases hold that the law itself, not the bringing of the suit, makes the demand.

Counsel also admit that the reenactment of the act of 1905, supra, did not substantially change the statute as originally enacted in 1883, so far as treasurers are concerned. On this subject they say: "By § 391 of this act [Acts 1905 p. 584, § 2284 Burns 1908], the act of 1883 [Acts 1883 p. 106, § 2021 Burns 1901] was revived and reenacted, the principal change made by the revision was to make all officers liable to the penalty, instead of only the clerks, sheriffs and treasurers. As to county treasurers failing to pay over moneys, there was no substantial change." (Italics ours throughout opinion.)

In our opinion, aside from broadening the scope of the act so as to apply to all officers, the slight changes made were such only as to evidence the adoption by the legislature of the construction of the act given it by this court in State v. Wells (1887), 112 Ind. 237, 13 N.E. 722.

In State v. Mason (1886), 108 Ind. 48, 8 N.E. 716, the indictment was returned in May, 1885, the treasurer's term of office expired in November, 1882, and demand was made on the treasurer in July, 1883. In holding that the prosecution was barred by the two-year statute of limitations, this court said: "The statute of limitations began to run when Mason failed to pay over the money in his hands to his successor in office, and the alleged subsequent demands and refusals did not take any of the counts out of the operation of that statute." 12 Cyc. 255.

Of course, the General Assembly may make the commission of the offense to depend on the condition precedent of a failure to comply with a demand. The question here is whether or not the statute expressly, or by necessary implication, requires it. In ascertaining the intent of the act, courts will look to the letter thereof, to the mischief aimed at, to other statutes, and to the common law. State Board, etc v. Holliday (1898), 150 Ind. 216, 49 N.E. 14, 42 L. R. A. 826; City of New Albany v. Stier (1905), 34 Ind.App. 615, 72 N.E. 275. Another familiar rule of statutory construction, thoroughly settled, is that where a statute has been construed by the courts of a state, and is thereafter substantially reenacted, the legislature thereby adopts such construction, unless the contrary is clearly shown by the language of the act. Board, etc., v. Conner (1900), 155 Ind. 484, 58 N.E. 828; Hilliker v. Citizens St. R. Co. (1899), 152 Ind. 86, 52 N.E. 607; State, ex rel., v. Swope (1855), 7 Ind. 91; Dill v. Fraze (1907), 169 Ind. 53, 79 N.E. 971; McIntyre v. State (1908), 170 Ind. 163, 83 N.E. 1005; Rupel v. Ohio Oil Co. (1909), 172 Ind. 300, 88 N.E. 508, 88 N.E. 508; Strange v. Board, etc. (1910), 173 Ind. 640, 91 N.E. 242; Smith v. Biesiada (1910), 174 Ind. 134, 90 N.E. 1009. And where a statute is adopted from a foreign state, the construction thereof by the courts of such state, is followed. Bowman v. Conn (1856), 8 Ind. 58; City of Laporte v. Gamewell, etc., Tel. Co. (1896), 146 Ind. 466, 45 N.E. 588, 35 L. R. A. 686, 58 Am. St. 359; Robertson v. Ford (1905), 164...