Wynegar v. The State
| Decision Date | 17 December 1901 |
| Docket Number | 19,682 |
| Citation | 62 N.E. 38,157 Ind. 577 |
| Parties | Wynegar v. The State |
| Court | Indiana Supreme Court |
From Marion Criminal Court; Fremont Alford, Judge.
Clyde Wynegar was convicted of embezzlement, and appeals.
Affirmed.
H. N Spaan, for appellant.
W. L Taylor, Attorney-General, Merrill Moores and C. C. Hadley for State.
Appellant was tried upon an indictment containing two counts. The first was an ordinary charge of larceny. The second alleged that appellant upon the 26th day of January, 1901, at and in Marion county and State of Indiana, was then and there acting as agent of Charles Hayes, and as such agent then and there had control and possession of $ 420 in money the property of said Charles Hayes, to the possession of which money the said Charles Hayes then and there was entitled; that the said appellant while acting as the agent of the said Hayes, and in possession and control of such money as aforesaid, did then and there unlawfully and feloniously and without the consent of said Hayes, purloin, embezzle, and appropriate to his own use all of said money, contrary, etc. Appellant was acquitted on the first and convicted on the second count of the indictment. His only complaint here is that the verdict of the jury was contrary to law and the evidence. The conviction rests upon § 2022 Burns 1901, the material part of which reads thus: "Every officer, agent, attorney, clerk, servant, or employe or any person * * * who, having access to, control, or possession of any money * * * 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 * * * any money * * * belonging to * * * such person * * * in whose employment said * * * agent * * * may be, shall be deemed guilty of embezzlement," etc. The uncontroverted facts are, in substance, these: The prosecuting witness, Charles Hayes, a colored man, and common laborer, on the afternoon of Saturday, January 26, 1901, came into the possession of $ 469. Between 7 and 8 o'clock the same evening he went to the saloon kept by appellant and requested the latter to keep the money for him in the safe until the following Monday morning. Appellant accepted of Hayes $ 420 of the money as requested and placed it in the safe. Between the time the money was placed in the safe, and some time on the following day (Sunday), appellant, without the knowledge or consent of Hayes, took the money, left town and appropriated all the money to his own use. About two weeks later appellant was arrested in New Albany.
Upon these facts he was found guilty of embezzlement, and not guilty of larceny. His contention here is that he was not guilty of embezzlement (1) because the prosecuting witness continued to retain at least constructive possession of the money, and that a felonious taking of property when the same is in the possession of the owner is larceny, and not embezzlement, and (2) because he was in no sense the agent of the prosecuting witness within the meaning of the statute above quoted. With respect to the first point we shall not stop to inquire whether these facts would sustain a charge of larceny under a former statute, for...
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