State v. Nugent
| Decision Date | 08 October 1914 |
| Docket Number | 22,599 |
| Citation | 106 N.E. 361,182 Ind. 200 |
| Parties | State of Indiana v. Nugent |
| Court | Indiana Supreme Court |
From Daviess Circuit Court; James W. Ogdon, Judge.
Prosecution by the State of Indiana against Thomas Nugent. From a judgment quashing the indictment, the State appeals.
Reversed.
Thomas M. Honan, Attorney-General, and Thomas H. Branaman, for the State.
Gardiner Tharp & Gardiner, Hastings, Allen & Hastings, Alvin Padgett Mattingly & Myers, Edgar T. Laughlin and Thomas M. Sears, for appellee.
Appellee was indicted in October, 1913, under § 2285 Burns 1914 Acts 1905 p. 584, § 392, for the alleged embezzlement of a bank check. The indictment contains four counts. The trial court sustained appellee's motion to quash each one, and this ruling is here assigned as error.
Aside from uncontroverted matters, the first count avers that appellee "on the 14th day of November, 1911, at and in the county of Daviess and State of Indiana, was then and there the agent of Reuben W. Stepp of Daviess County, Indiana, and having then and there by virtue of his said employment as the agent of the said Reuben W. Stepp the control and possession of one bank check executed by one James Mahoney in the sum of seventy-five dollars, dated on or about the 10th day of November, 1911, drawn on the Central National Bank of Greencastle, Indiana, payable to the order of the said Reuben W. Stepp, in the name and style of 'Reuben W. Stepp' * * * and endorsed on the back thereof by the said Reuben W. Stepp in the name and style of 'Reuben W. Stepp' * * * and which said bank check was then and there the property of the said Reuben W. Stepp and of the value of seventy-five dollars, to the possession and ownership of which said bank check said Reuben W. Stepp was then and there lawfully entitled, did then and there unlawfully, fraudulently and feloniously, embezzle, purloin, secrete and appropriate to his own use said bank check; that a more particular and accurate description of said bank check cannot be given for the reason that the said bank check is in the possession of the defendant Thomas Nugent, 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 Attorney-General contends that the averments of this count are sufficient to repel the motion to quash, which was grounded on the alleged insufficiency of the facts stated to constitute a public offense, and the alleged uncertainty of the averments. § 2065 Burns 1914, Acts 1905 p. 584 § 194. The statute under which the indictment was drawn, provides that "Every * * * agent, * * * or employee of any person, * * * who, having * * * possession of any money, article or thing of value, to the possession of which his employer is entitled, shall, while in such employment, take, purloin, secrete or in any way whatever appropriate to his own use, or to the use of others, * * * any money, coin, bills, notes, credits, choses in action or other property or article of value belonging to or deposited with or held by such person, * * * in whose employment such * * * agent * * * or employee may be, shall be deemed guilty of embezzlement", etc. Counsel for appellee seek to sustain the ruling of the trial court because no demand is averred. There is no necessity for such allegation, where the indictment is under § 2285 Burns 1914, supra. Dean v. State (1897), 147 Ind. 215, 46 N.E. 528; 15 Cyc. 495. It is contended that it is fairly inferable from the averments of the indictment that the check came into appellee's possession in November, 1911, and that he still held it when indicted without ever having put it in circulation,...
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