State v. Sarlls

Citation135 Ind. 195,34 N.E. 1129
Decision Date17 October 1893
CourtSupreme Court of Indiana


Appeal from circuit court, Posey county; R. D. Richardson, Judge.

Indictment of Roy Sarlls for embezzlement. Indictment quashed. The state appeals. Reversed.

John W. Spencer and Seth Leavenworth, for the State. Walter S. Jackson, for appellee.


On the 29th of November, 1892, the grand jury of Posey county returned into court an indictment charging the appellee, Roy Sarlls, with the embezzlement of $31 of the funds of William Ford and Braddock McGregor. Appellee moved the court, orally, to quash the indictment, alleging for cause that said indictment, on its face, charged the defendant with embezzlement under section 1945, Rev. St. 1881; that said indictment contained no allegation that reasonable demand had been made of the appellee by his client or employer, or persons designated by them to receive the same. The appellant claimed, in substance, that the indictment, on its face, was a good and sufficient charge of embezzlement, under section 1944, Rev. St. 1881, that it was drawn upon said section, and therefore no averment of demand was necessary. The court sustained appellee's motion to quash, to which ruling and judgment appellant at the time excepted, and appealed to this court. But one question arises for consideration under the assignment of error in this case: Did the court err in quashing the indictment? The charging language of the indictment is: “That Roy Sarlls, on or about the 15th day of November, 1892, at said county, being then and there the employe, clerk, servant, and collector of William Ford and Braddock McGregor for the collecting and keeping of the accounts of the electric light bills and accounts due, and then and there belonging to said Ford and McGregor, did then and there receive and take into his possession, from the moneys of said Ford and McGregor, to which the said Roy Sarlls then and there had the control and possession by virtue of his employment, and whilst so employed as aforesaid, the following property, to wit.” Here the indictment describes the property taken as money, and states the denomination of each bill and piece of coin, “to the possession of all and each of which the said William Ford and Braddock McGregor were then and there entitled, and did then and there feloniously and fraudulently take, purloin, secrete, and appropriate to his own use the moneys aforesaid,” etc. The appellee, in support of the rulings of the court below, contends that the indictment is bad for three reasons: “First, for uncertainty; second, because it shows upon its face that it was returned under section 1945, Rev. St. 1881, which defines embezzlement by attorneys at law and collectors; third, that, showing on its face that the offense charged was against the provisions of section 1945, Rev. St. 1881, the indictment was bad for not alleging that a demand had been made as required by that section.”

In 2 Bish. Crim. Law, § 332, we have the following clear doctrine upon the interpretation of terms: “The most frequent terms to indicate the person embezzling are ‘agent,’ ‘servant,’ and ‘clerk.’ We saw in ‘Statutory Crimes' that according to an old doctrine now exploded in England, and not uniformly followed in this country, where a statute enumerated several things in words so broad in meaning as to overlie one another, the less specific are narrowed in the interpretation to permit this overlying. 1 Bish.St.Crimes, § 247. Now, the words of our principal statutes are ‘agent,’ ‘servant,’ ‘clerk;’ and if the exploded doctrine were to be applied to them the person offending could be deemed to belong to one of these classes, not to two or all, and the pleader must select, at his peril, one, and only one, which the count should charge him as being. But the author is not aware that any attempt has been made to apply this doctrine to these statutes; consequently, if the pleader is satisfied the defendant is either an ‘agent,’ ‘clerk,’ or a ‘servant,’ he selects the term which pleases him best. Then, should the proofs sustain the allegation in this respect, all is well, though it should appear that one of the statutory terms would be equally appropriate.” It is a rule of construction in this state that when a statute makes it a crime to do any one of several things mentioned disjunctively, all of which are punished alike, the whole may be charged conjunctively in a single count. The indictment, excepting the word “collector,” does not use a single term or expression of section 1945, nor does the word “collector” appear in the body of that statute, its only use being in the title. The language of that section is “any attorney at law or person engaged in making collections for others.” If a person...

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