Woodward v. The State

• Decision Date: 24 September 1885
• Docket Number: 12,430
• Citation: 2 N.E. 321,103 Ind. 127
• Parties: Woodward v. The State
• Court: Indiana Supreme Court

2 N.E. 321

103 Ind. 127

Woodward v. The State

No. 12,430

Supreme Court of Indiana

September 24, 1885

From the Marion Criminal Court.

The judgment is affirmed, with costs.

J. L Mitchell and N. C. Carter, for appellant.

F. T Hord, Attorney General, and W. B. Hord, for the State.

OPINION

Howk J.

The appellant, Woodward, was indicted, tried and convicted for the crime of embezzlement, as charged in the second count of the indictment against him. From the judgment of conviction he has appealed to this court, and the only errors assigned by him here are such as call in question the sufficiency of the facts stated in the second count of the indictment to constitute a public offence, before as well as after verdict. The evidence is not in the record.

In the second count of the indictment it is charged "that John T. Woodward, on the 17th day of November, A. D. 1884, at and in the county of Marion and State of Indiana, was then and there the agent and employee of Jeremiah Miller for the purpose of collecting money on a certain lottery ticket, then and there, and by virtue and on account of such agency and employment by the said Jeremiah Miller, for the purpose aforesaid, he, the said John T Woodward, as such agent and employee, at and in the county and State aforesaid, did then and there receive and take into his possession divers moneys, bills, notes, United States treasury notes, national bank notes, gold and silver coins, nickel and copper coins, current money of the United States, amounting in all to twelve hundred dollars, and of the value of twelve hundred dollars; a more particular and accurate description of said moneys, bills, notes, United States treasury notes, national bank notes, gold and silver coins, nickel and copper coins is to the said jurors unknown, and can not be given for the reason that they are in the possession of some person or persons to said jurors unknown; said moneys, bills, notes, United States treasury notes, national bank notes, gold and silver coins, nickel and copper coins, then and there being the moneys, personal goods and chattels of Jeremiah Miller; and he, the said Woodward, on the day and year aforesaid, at and in the county and State aforesaid, did then and there unlawfully, feloniously, purposely, knowingly and fraudulently purloin, secrete, embezzle and appropriate to his own use all of said moneys, personal goods and chattels aforesaid, with intent then and there and thereby to defraud him, the said Miller, out of said moneys, personal goods and chattels, contrary to the form of the statute," etc.

It is manifest that it was the intention of the State, in and by this second count of the indictment against the appellant, John T. Woodward, to charge him with the commission of the crime of embezzlement, as the same is defined and its punishment prescribed in section 1944, R. S. 1881, in force since September 19th, 1881. In this section it is provided as follows:

"Every officer, agent, attorney, clerk servant, or employee of any person or persons, or corporation or association, who, having access to, control, or possession of any money, article, or thing of value, to the possession of which his or her employer or employers is or are entitled, shall, while in such employment, take, purloin, secrete, or in any way whatever appropriate to his or her own use, or to the use of others, or knowingly permit any other person to take, purloin, secrete, or in any way appropriate to his or her 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 or persons, or corporation or association, in whose employment said officer, agent, attorney, clerk, servant, or employee may be, shall be deemed guilty of embezzlement, and, upon conviction thereof, shall be imprisoned in the State prison for not more than fourteen years nor less than two years, fined in any sum not more than one thousand dollars nor less than one dollar, and disfranchised and rendered incapable of holding any office of trust or profit for any determinate period."

In section 1759, R. S. 1881, of the criminal code, in force since September 19th, 1881, it is provided as follows: "The defendant may move to quash the indictment or information when it appears upon the face thereof, either -- * * *

"Second. That the facts stated in the indictment or information do not constitute a public offence. * * *

"Fourth. That the indictment or information does not state the offence with sufficient certainty."

Upon these two statutory grounds of objection, the appellant's counsel earnestly insist that the criminal court erred in overruling both the motion to quash the second count of the indictment and the motion in arrest of judgment. The question for our decision is this: Does the second count of the indictment state sufficient facts, with sufficient certainty to constitute a public offence? As bearing upon the question of certainty, section 1756, R. S. 1881, of the...