Whitney v. State, No. 25796.

• Docket Nº: No. 25796.
• Citation: 206 Ind. 562, 188 N.E. 779
• Case Date: February 16, 1934
• Court: Supreme Court of Indiana

206 Ind. 562
188 N.E. 779

WHITNEY
v.
STATE.

No. 25796.

Supreme Court of Indiana.

Feb. 16, 1934.

Appeal from Criminal Court, Marion County; Homer Elliott, Judge.

Arthur E. Whitney was convicted of embezzlement, and he appeals.

Affirmed.

[188 N.E. 780]

Robinson, Symmes & Melson and Harold F. Kealing, all of Indianapolis, for appellant.

James M. Ogden, Atty. Gen., and Earl B. Stroup, Deputy Atty. Gen., for the State.

HUGHES, Judge.

This is an action against the appellant upon an amended affidavit for embezzlement predicated upon section 2470, Burns' Ann. St. 1926. 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 nor more than fourteen 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 employee 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' Ann. St. 1926, 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,

[188 N.E. 781]

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' Ann. St. 1926, 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 section 2225, Burns' Ann. St. 1926, that “no indictment or affidavit shall be deemed invalid, nor shall the same be set aside or quashed *** for any other 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, 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...