The State v. Matthews
| Decision Date | 14 October 1891 |
| Docket Number | 15,980 |
| Parties | The State v. Matthews |
| Court | Indiana Supreme Court |
From the Harrison Circuit Court.
Judgment reversed, with instructions to proceed in accordance with this opinion.
A. G Smith, Attorney General, C. W. Cook, Prosecuting Attorney, T J. Wilson, W. N. Tracewell and R. J. Tracewell, for the State.
M. W Funk and W. Ridley, for appellee.
This is an appeal from the judgment of the court sustaining a motion to quash an information charging the commission of a crime.
A preliminary question is raised by a motion to dismiss the appeal, because it is claimed that the transcript does not contain all the entries in the cause, and is not, therefore, full, true and complete.
The specific omission is said to consist in the failure of the clerk to copy the order-book entry showing the filing of the affidavit and information in the court below. We find in the transcript, immediately preceding the affidavit, a statement of the clerk that on the 24th day of September, 1890, during the September term of the court, the State, by her prosecuting attorney, appeared and filed with the clerk the affidavit and information which follow.
We can not judicially know, and are not otherwise informed, that an entry of such filing was made by the clerk upon the order-book, and must therefore overrule the motion.
It may not be improper to add that the statute does not require informations to be filed in term time and in open court, as in cases of presentment for crime by indictment, and, therefore, cases holding that the record must show the returns of indictments in open court are not in point.
It may be proper practice on the part of clerks to make order-book entries of such filing, but we are satisfied that the mere statement of the clerk, as shown by his file-mark on the back of an information, is sufficient prima facie to give jurisdiction; and in the absence of objection made in the trial court, we will presume in favor of the regularity of the proceedings. App v. State, 90 Ind. 73.
The facts charged in the information are, in brief, that on, and prior to, November 8th, 1889, the defendant and one James Woodward were doing business as partners; that on that day Woodward died, and that afterwards the defendant, as the surviving partner of the late firm, filed his bond, qualified, and entered upon the discharge of his duties as such; that afterwards, in June, 1890, the defendant, having failed to give an additional bond, as ordered by the court, was removed, and a receiver appointed of the firm assets, who qualified and entered upon the discharge of his duties as such receiver; that there came into the hands of the defendant as such surviving partner, and of the moneys and assets of said partnership and belonging thereto, the sum of fifteen hundred and sixty-two dollars in current money of the United States; that on the 20th day of September, 1890, the defendant, Halleck Matthews, did then and there feloniously fail and refuse to pay over the said sum collected and received by him as such surviving partner, on demand, then and there made, to the receiver, who was then and there entitled to receive the said money--the said defendant not then and there having a good cause for so failing and refusing to pay said money to said receiver.
The information is predicated upon section 1952, R. S. 1881, which, omitting the portion fixing the punishment, is as follows:
"Whoever, being the administrator of the estate of a decedent, or the executor of a last will, or guardian of any minor or insane person, or trustee or other person acting in any fiduciary capacity, without good cause, fails or refuses, when legally required by the proper person or authority, to account for or pay over to such person or persons as may be lawfully entitled to receive the same, any money, choses in action, or other property which may have come into his hands by virtue of his office, duty, or trust, shall be deemed guilty of embezzlement."
The information was quashed, as we are informed in the brief of counsel, upon the assumption that the above-quoted section does not embrace a surviving partner who is proceeding under the statute to wind up the partnership affairs.
It is well settled that a partner can not commit a crime by any acts relating to the possession of the partnership property, such as embezzlement, larceny or burglary, for he is both principal and agent. Bates Partnership, section 277; Soule v. Hayward, 1 Cal. 345; State v. Butman, 61 N.H. 511; Napoleon v. State, 3 Tex. Ct. App. 522; Jones v. State, 76 Ala. 8; Becket v. Sterrett, 4 Blackf. 499. Also that our statute relating to the settlement of partnerships by the surviving partner does not change or affect his interest in or right of possession of the partnership assets, but that he is the legal owner of the assets (Wilson v. Nicholson, 61 Ind. 241), and may make a voluntary assignment of the partnership assets, or prefer one firm creditor over the others by the execution of chattel mortgages. First Nat'l Bank v. Parsons, 128 Ind. 147, 27 N.E. 486; Hadley v. Milligan, 100 Ind. 49.
A number of cases may be found in which it has been held that even a slight interest in the property converted was sufficient to shield the abstractor from punishment, but upon examination it will be found that the statutes upon which the prosecutions were predicated defined embezzlement as a conversion of the "property of another;" and the cases, therefore, are of little or no weight when applied to the construction of the section of our statute under consideration where these controlling words are omitted. State v. Kusnick, 45 Ohio St. 535, 15 N.E. 481.
It will be observed that surviving partners are not enumerated as one of the class against whom the act is directed, and if included it must be under the words "or trustee or other person acting in any fiduciary capacity." By the rules of construction the trustee or person acting in the fiduciary capacity must be of the same class as those enumerated, viz., administrators, executors and guardians. Nichols v. State, 127 Ind. 406, 26 N.E. 839; Sutherland Stat. Const., section 270, et seq.; Endlich Int. Stat., section 405.
In determining whether a surviving partner is within the class enumerated, we must look to the statutes defining his duties and powers rather than to definitions given in standard dictionaries, which, owing to the changes...
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