Whitney v. State

• Decision Date: 16 February 1934
• Docket Number: 25,796
• Parties: Whitney v. State of Indiana
• Court: Indiana Supreme Court

188 N.E. 779

206 Ind. 562

Whitney v. State of Indiana

No. 25,796

Supreme Court of Indiana

February 16, 1934

From Marion Criminal Court; Homer Elliott, Special Judge.

Affirmed.

Frank A. Symmes, Harold F. Kealing, Garth B Melson, Donald F. Lafuze, and Robinson, Symmes & Melson, for appellant.

James M. Ogden, Attorney-General, and James B Stroup, Deputy Attorney-General, for the State.

OPINION

Hughes, J.

This is an action againstthe appellant upon an amended affidavit for embezzlement predicated upon § 2470, Burns 1926, § 10-1704, Burns 1933, § 2467, Baldwin's 1934. The appellant, in the lower court, filed a motion to quash the amended affidavit, the motion was overruled; the appellant was tried by the court without the intervention of a jury and found guilty as charged in the affidavit and sentenced to the Indiana State Prison for a period of not less than two (2) nor more than fourteen (14) years.

The assignment of errors is as follows: (1) The court erred in overruling appellant's motion for a new trial; (2) the court erred in overruling appellant's motion to quash the affidavit.

The amended affidavit, omitting caption and formal parts, is as follows:

"Be It Remembered, That on this day before me, William H. Remy, Prosecuting Attorney of Marion County, personally came Harry McGlenn, who being duly sworn, upon his oath says that Arthur E. Whitney, on or about the 30th day of March, A. D. 1927, at and in the County of Marion and State of Indiana, being then and there an employe of one Ruud Manufacturing Company, a corporation, did then and there receive for the said Ruud Manufacturing Company, a corporation, and take into his possession by virtue of said employment as aforesaid, the following property, to wit: One certain check drawn by C. C. York upon the Fletcher American National Bank of Indianapolis, Indiana, dated March 9, 1927, payable to the order of Ruud Manufacturing Company in the sum of one hundred fifty dollars (150.00), then and there of the value of one hundred fifty dollars (150.00), the property of the said Ruud Manufacturing Company, a corporation, and to the possession and ownership of which the said Ruud Manufacturing Company, a corporation, was then and there lawfully entitled; that the said Arthur Whitney, while in the employment of said Ruud Manufacturing Company, a corporation, and in possession and control of such check as aforesaid, did then and there unlawfully, feloniously and fraudulently, without the consent of the said Ruud Manufacturing Company, a corporation, take, purloin, secrete, cash, embezzle and appropriate to his own use the proceeds from said check then and there of the value of one hundred fifty dollars (150.00) as aforesaid, then and there being contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Indiana."

The motion to quash contains two reasons therefor as follows: (1) That the facts stated in the affidavit do not constitute a public offense; (2) That the affidavit does not state the offense with sufficient certainty.

Section 2470, Burns 1926, § 10-1704, Burns 1933, § 2467, Baldwin's 1934, upon which the amended affidavit is based, reads in part as follows:

"Every officer, agent, attorney, clerk, servant or employee of any person, firm, corporation, or association, who, having access to, control or possession of, any money, article or thing of value, to the possession of which his employer is entitled, shall, while in such employment, take, purloin, secrete, or in any way whatever appropriate to his own use, or to the use of others, . . . any money, coin, bills, notes, credits, choses in action or other property or article of value belonging to or deposited with or held by such person, firm, corporation or association in whose employment such officer, agent, attorney, clerk, servant, or employee may be, shall be deemed guilty of embezzlement, . . ."

We do not assent to either of the reasons presented by appellant to quash the amended affidavit. The argument is advanced by appellant that the offense of the embezzlement of the check is not completely averred in that the amended affidavit does not charge that the defendant embezzled, converted to or appropriated to his own use or the use of others, the said check. The affidavit specifically states "that the said Arthur E. Whitney, while in the employment of said Ruud Manufacturing Company, a corporation, and in possession and control of such check as aforesaid, did, then and there unlawfully, feloniously, and fraudulently, without the consent of the said Ruud Manufacturing Company, a corporation, take, purloin, secrete, cash, embezzle and appropriate to his own use the proceeds from said check then and there of the value of one hundred and fifty dollars as aforesaid." We think the reasonable and fair construction of the indictment to be that the defendant was charged with the embezzlement of the "check" and not the embezzlement of "the proceeds of the check." The offense of embezzlement of the check is sufficiently charged and it is also sufficiently charged that the defendant converted and appropriated the check to his own use.

This was the construction and view placed upon the indictment by the appellant's attorneys. The record (page 56) shows that the following statement was made by appellant's attorneys: "He is charged with embezzling this check and converting this check to his own use."

Section 2224, Burns 1926, § 9-1126, Burns 1933, § 2205, Baldwin's 1934, provides: "The indictment or affidavit is sufficient if it can be understood therefrom. . . .

"Fifth. That the offense charged is stated with such a degree of certainty that the court may pronounce judgment upon a conviction according to the right of the case."

And it is further provided by § 2225, Burns 1926, § 9-1127, Burns 1933, § 2206, Baldwin's 1934, that:

"No indictment or affidavit shall be deemed invalid, nor shall the same be set aside or quashed, . . . for any defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits."

No more certainty is required in criminal cases than in civil cases and all that is necessary is that the allegations be certain to a common intent. Agar v. State (1911), 176 Ind. 234, 94 N.E. 819.

The true test of the sufficiency of an indictment is whether the material averments thereof are stated with such certainty as to apprise the defendant of the nature and character of the charge against him. Agar v. State, supra.

The court did not commit error in overruling the motion to quash.

It is next insisted that the court erred in overruling appellant's motion for a new trial. The reasons assigned in the motion are as follows: (1) The finding of the court is not sustained by sufficient evidence; (2) the finding of the court is contrary to law.

Reasons 3 to 16, inclusive, are based upon the admission of certain evidence and the introduction of certain exhibits.

It appears from the evidence that from 1926 to April, 1927, the appellant was an employee of the Ruud Manufacturing Company, a corporation, in the branch office at Indianapolis, Indiana, and his work was to sell water heaters manufactured by said company. R. A. Parke, was called as a witness for the State. He stated that he was the credit manager and acting secretary and treasurer of the company and had been with the company for more than nine years; that in August, 1926, and in 1927, he was assistant auditor of the company. Certain questions were asked the witness Parke, and answered over the objection of the defendant as to the manner and custom of making sales to customers and the disposition of the money received. We see no valid objection to this line of evidence and especially in view of the evidence given by the defendant. The evidence of the witness Parke shows that when any money or checks were received by the defendant Whitney, the same should have been sent to the home office at Pittsburgh and that Whitney had no authority to endorse and cash checks payable to the company.

The evidence given by the defendant on direct and cross-examination shows that he was to receive two hundred dollars per month as a salary and that he was to requisition the company for the current expense of the branch office for each month. The necessary blanks and forms were furnished for this purpose. His evidence further shows that when he sold a heater, the contract for the same was to be forwarded to the home office and all payments whether by cash or check were also to be forwarded.

The evidence shows that when the defendant was employed by a Mr Lewis, that money would be supplied by the home office on defendant's requisition for operating expenses and that he was to deposit it locally but not in the name of the Ruud Company. The defendant established two bank accounts with the Fletcher Savings and Trust Company. One in the name of A. E. Whitney, and one in the name of A. E. Whitney, manager. The evidence further shows that the defendant was not permitted to take checks payable on a contract and put them in his bank account and then use that to pay current expenses; that he knew the home office was expecting every payment made on a contract which they had registered at their home office to be sent direct to the company; that he knew the home office kept on file the terms of each contract and that they expected the payments month by month; that at first when the checks came in, he would send them direct to the company and did not cash them and deposit them in his own account, later he would indorse the Ruud Manufacturing Company's name by A. E. Whitney, and deposit them in his account. The company did not know this and when the checks failed...