Vinnedge v. State

• Decision Date: 27 November 1906
• Docket Number: 20,889
• Citation: 79 N.E. 353,167 Ind. 415
• Parties: Vinnedge v. The State
• Court: Indiana Supreme Court

79 N.E. 353

167 Ind. 415

Vinnedge v. The State

No. 20,889

Supreme Court of Indiana

November 27, 1906

From Madison Circuit Court; H. J. Paulus, Special Judge.

Prosecution by the State of Indiana against Llewellyn H. Vinnedge. From a judgment of conviction, defendant appeals.

Reversed.

Bagot & Bagot, for appellant.

Charles W. Miller, Attorney-General, C. C. Hadley, H. M. Dowling and W. C. Geake, for the State.

OPINION

Gillett, J.

Appellant, having been convicted of the crime of embezzlement, appeals to this court, and assigns as error the overruling of his motion to quash the indictment. Omitting the formal parts, that pleading reads as follows: "That on or about November 23, 1903, at and in the county of Madison, State of Indiana, one Llewellyn H Vinnedge was then and there an employe of the American Steel & Wire Company, a corporation, and as such employe then and there had control and possession of ninety-eight and twenty-five hundredths ($ 98.25) dollars in money, of the value of ninety-eight and twenty-five hundredths ($ 98.25) dollars, the property of said American Steel & Wire Company, a corporation, to the possession of which said money said American Steel & Wire Company was entitled; that said Llewellyn H. Vinnedge while in the employ of said American Steel & Wire Company, a corporation, and in the possession and control of said money as aforesaid, did then and there unlawfully, feloniously, and fraudulently, without the consent of said American Steel & Wire Company, a corporation, purloin, secrete, embezzle, and appropriate to his own use all of said money."

It is contended by counsel for appellant that the access, control or possession which the statute (§ 2022 Burns 1901, § 1944 R. S. 1881) refers to is an access, control, or possession which is had by virtue of the employment, and that because of the omission of an allegation to that effect the motion to quash should have been sustained. The Attorney-General, on the other hand, contends that it is sufficient to follow the language of the statute in charging the crime of embezzlement, and also that the facts pleaded are sufficiently certain to preclude any other reasonable inference than that the money came into appellant's hands by virtue of his employment.

While it is true that statutory crimes may be charged in the language of the statute, where the words of the statute itself directly and expressly, and without any uncertainty or ambiguity, set forth the elements of the offense, yet this is not the rule where the pursuing of the words of the statute would create uncertainty as to the nature of the charge, or where, owing to a narrowing of the statute by judicial construction, a charging of the facts would not, owing to some other element which is involved, state an offense. Johns v. State (1902), 159 Ind. 413, 59 L. R. A. 789; Stropes v. State (1889), 120 Ind. 562, 22 N.E. 773; State v. Welch (1882), 88 Ind. 308; Schmidt v. State (1881), 78 Ind. 41; Manheim v. State (1879), 66 Ind. 65. It was said in United States v. Carll (1881), 105 U.S. 611, 26 L.Ed. 1135: "The fact that the statute in question, read in the light of the common law, and of other statutes on the like matter, enables the court to infer the intent of the legislature, does not dispense with the necessity of alleging in the indictment all the facts necessary to bring the case within that intent." The same idea was expressed by this court in Bates v. State (1869), 31 Ind. 72, where it was said: "Law may be construed according to the evident intent and purpose of the legislature, but an indictment cannot be thus modified."

It is a well-known fact in the history of the criminal law that the offense of embezzlement was created to cover a class of cases in which the act of the wrongdoer did not involve the element of a trespass, owing to the fact that the possession was in him.

Construing the statute in question in the light of the common law, and keeping in mind the character of the offense of larceny, it becomes evident that, in denouncing the offense of embezzlement, it was the legislative intent to make the element of access, control, or possession such an access, control, or possession as was obtained or had by virtue of the employment. It has been said that the purpose of embezzlement statutes is to protect employers against the frauds of those in whom they have confided, and that where this element of confidence does not exist the statutes do not apply. 2 Bishop, Crim. Law (8th ed.), § 352.

In Colip v. State (1899), 153 Ind. 584, 74 Am. St. 322, 55 N.E. 739, this court, in discussing the statute here involved, said: "The access to, control, or possession of property of the servant or employe intended by the statute, is such access to, control or possession as arises from the nature of the employment with reference to the particular article of property feloniously appropriated. Something more than mere physical access, or opportunity to approach to the thing, is required. There must be a relation of special trust in regard to the article appropriated, and it must be by virtue of such trust that the servant has access to, or control, or...