Warren v. State

• Decision Date: 26 September 1945
• Docket Number: 28092.
• Citation: 62 N.E.2d 624,223 Ind. 552
• Parties: WARREN v. STATE.
• Court: Indiana Supreme Court

62 N.E.2d 624

223 Ind. 552

WARREN v. STATE.

No. 28092.

Supreme Court of Indiana

September 26, 1945

Appeal from Criminal Court, Marion County; William D. Bain, judge.

Floyd G. Christian and Ralph H. Waltz, both of Noblesville, and Oscar F. Smith, of Indianapolis, for appellant.

James A. Emmert, Atty. Gen., and Frank E. Coughlin, 1st Asst. Atty Gen., for appellee.

RICHMAN Chief Justice.

Waiving a jury appellant was tried and convicted of larceny of four cans of Prestone. The only question presented is whether the finding is contrary to law. The evidence leaves no doubt that for more than six months he continued to take property of his employer and convert it to his own use, but he contends that his employment was such as to make his crime embezzlement rather than larceny.

He was employed as a member of a maintenance crew under a foreman in Plant No. 2 of the Allison Division of General Motors Corporation. The plant contained tanks for reception and storage of gasoline, oil and Prestone. To a storage building housing Prestone both the foreman and appellant had keys. 'The Chief Engineer * * * had exclusive control in Plant No. 2 of this Prestone.' Appellant was not authorized to remove Prestone from the building except on requisition from some other person in authority. One of appellant's duties was to receive gasoline. A confederate (who pleaded guilty to the same affidavit upon which appellant was tried) was employed by a trucking company to deliver gasoline to the plant and thus obtained ingress. His truck was used to take away Prestone Abstracted by appellant from the storage building. The Prestone was sold and the proceeds divided by appellant and the truck driver. A statement signed by appellant, and admitted in evidence, related numerous such transactions from June through August, 1943. In November they 'took out some 30 to 35 drums of Prestone,' each containing 55 gallons and sold them for $83 per drum. Appellant's employer became suspicious and early in January, 1944 investigators observed appellant surreptitiously placing four cans in the truck. It was followed away from the plant and the cans, containing Prestone, were recovered. No contention is made by appellant that he had a requisition when he took this Prestone.

There was other testimony more favorable to appellant's theory, but upon appeal we look only to the evidence tending to support the finding.

The facts related bring the case within the rule of Colip v. State, 1899, 153 Ind. 584, 55 N.E. 739, 74 Am.St.Rep. 322; Currier v. State, 1901, 157 Ind. 114, 60 N.E. 1023; Vinnedge v. State, 1906, 167 Ind. 415, 79 N.E. 353, 355; and cases from other jurisdictions cited in a note in 125 A.L.R. at p. 368, holding that an employe who has 'mere custody of personal property, as distinguished from legal possession' and with animo furandi converts same to his own use is guilty of larceny. Here there was no 'relation of special trust in regard to the article appropriated' which this court in Colip v. State, supra, said was necessary to an embezzlement. Appellant had access to the storage building but the Prestone therein was in the possession of the employer. We see no essential difference between this case and the hypothetical case of the watchman referred to in the following quotation from Vinnedge v. State, supra:

'Where there is at most but a naked possession or control--that is, a bare charge--or where the access consists of a mere physical propinquity as an incident of the employment, the felonious appropriation should be regarded as larceny. The reference in the embezzlement statute to officers, agents, attorneys, clerks, servants, and employés is plainly indicative of the intent to limit the denouncement of the statute to cases in which such persons have, as an element of their employment, a special trust concerning the money, article, or thing of value that involves an actual possession thereof or a special right of access to or control over the same. This requirement would not be satisfied, as we may indicate by way of illustration, by the mere control or possession, or physical opportunity of access, which a watchman in change of a store might have. As before indicated, the relationship contemplated by the statute is one of special trust and confidence; a relationship in which there inheres, either for the particular transaction or for all purposes, a special right of access to, or control or possession of, the money, article, or thing of value which is appropriated.'

Usually a watchman carries a key. Appellant's key...