State v. Silver, 30187

• Decision Date: 28 May 1962
• Docket Number: No. 30187,30187
• Citation: 243 Ind. 67,182 N.E.2d 587
• Parties: STATE of Indiana, Appellant, v. Sol SILVER, Appellee.
• Court: Indiana Supreme Court

Page 587

182 N.E.2d 587

243 Ind. 67

STATE of Indiana, Appellant, v. Sol SILVER, Appellee.

No. 30187.

Supreme Court of Indiana.

May 28, 1962.

Edwin K. Steers, Atty. Gen., Carl E. Van Dorn, Deputy Atty Gen., Indianapolis, O. H. Roberts, Jr., Pros. Atty., First Judicial Circuit, Evansville, for appellant.

Milford M. Miller, W. C. Welborn, Evansville, for appellee.

ARTERBURN, Chief Justice.

The appellee herein was charged by a second amended affidavit in four counts with embezzlement. The four counts were worded the same, with the exception that the amount involved and the dae of the alleged crime varied as to each count. For the purposes of this opinion we need set out the wording of only Count One, which (omitting the caption and signature) is as follows:

'EDWARD A SALISBURY being duly sworn upon his oath says that SOL SILVER on or about the 8th day of APRIL A. D., at said County and State as affiant verily believes was then and there the 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 OLD NATIONAL BANK in Evansville, Evansville, Indiana, and had authority to sign and cash checks drawn on the said ANCHOR FINANCE CORPORATION. That while acting as President, agent, servant and employee of the ANCHOR FINANCE CORPORATION, a corporation, and by virtue of said office and employment as President, agent, servant and employee the said SOL SILVER had access to, control over, and possession of lawful and current money of the United States of America in the sum of One Thousand Dollars ($1,000.00), which the said ANCHOR FINANCE CORPORATION owned and to the possession of which the said ANCHOR FINANCE CORPORATION was then and there entitled and the said SOL SILVER did then and there, while in such employment, feloniously and fraudulently take, purloin, secrete and appropriate to his own use the money aforesaid, owned by the ANCHOR FINANCE CORPORATION, a corporation.

'Then and there being contrary to the form of the Statute, in such cases made and provided, and against the peace and dignity of the State of Indiana.' (Our italics.)

The trial court sustained a motion to quash all four counts. There are certain technical questions raised with reference to the procedure in this appeal, to which we need not give consideration for the reason that the same may be easily remedied and would only delay a consideration of this case upon its merits.

Upon the sustaining of the motion to quash the State refused to plead further and an appeal on the sustaining of the motion to quash is presented to this court. The gist of the motion is that the words 'money aforesaid' used in the latter part of the count are too indefinite and uncertain as to whether they refer to 'current money' or 'funds'...