176 Ind. 234 | Ind. | 1911
Appellant was convicted under §2285 Burns 1908, Acts 1905 p. 584, §392, of the crime of embezzlement. The assignment of errors calls in question the action of the court in overruling the motion to quash the indictment and the motion for a new trial. The indictment was in one count.
The contention of appellant rests on the ground that “the statements following the words ‘being' and ‘having’ in «aid indictment are mere recitals, and must be disregarded. ’ ’ If what follows said words “being” and “having” must be disregarded, it is evident that the court erred in overruling the motion to quash.
It has been held in many cases, however, that the allegation that “A, being an officer,” etc., or “being an employe,” etc., is a sufficient averment that he is an officer or employe.
In the ease of Rex v. Somerton (1827), 7 B. & C. 463, 14 Eng. Com. Law 210, the indictment charged that defendant, “being the servant of Joseph Hellier, on the same day, etc., feloniously did steal one gold ring then and there being in the possession of said Hellier, and being his goods and chat-ties.” This indictment was held good. The court said: “It is impossible that any person who reads this indictment can doubt that it imports that Mary Somerton was the servant of Hellier when she stole the property. 'I agree that we cannot by intendment or argument supply any thing which goes to constitute the guilt of the prisoner, or which may warrant a specific punishment in any particular case; but we must read and understand the language used in indictments as the rest of mankind would understand the same language, if used in other instruments, with the exception of those cases where the law requires technical terms to be used, as in the case of murder. If we were to hold that the allegation that on such a day the prisoner, being the
In the case of Rex v. Bootie (1759), 2 Burr. 864, the indictment, alleging that the defendant, being one of the constables, etc., and being in the execution of his said office did wilfully and unlawfully suffer Margaret Prince, being a loose, idle, lewd and disorderly person, to escape his custody, was held good.
In the case of Rex v. Lawley (1731), 2 Stra. *904, an indictment charging that the defendant, “knowing that Crookes had been indicted, and was to be tried,” attempted to persuade a witness not to appear, was held sufficient.
In the ease of King v. Moor (1688), 2 Mod. *128, the information charging “that the defendant, being above the age of fourteen years, did take a young maid away unmarried,” was held good.
In the case of Rex v. Royall (1759), 2 Burr. 832, 834, the indictment charged that Mawby, “being then and there the surveyor of the highways did,” etc. It was held that “ ‘being’ is a sufficient averment.”
In the case of Rex v. Ward (1727), 2 Ld. Raym. 1461, 1466, 1468, an indictment charging that the defendant, “onerabilis existens ad deliberandum 315 tons of alum to the Duke o£ Buckingham, ad cerium dies jam praeteriium, he, said defendant, contriving and intending said Duke of said alum to defraud, etc., forged the indorsement,” was held good. See, also, Rex v. Aylett (1785), 1 T. R. 63.
In the case of People v. Hatch (1910), 13 Cal. App. 521, 109 Pac. 1097, 1100, 1101, it was urged that “the fact that the defendant was the agent, attorney and trustee of Mrs. Sage, and that he had possession of and was intrusted with
In the ease of State v. Scoggins (1907), 85 Ark. 43, 47, 106 S. W. 969, the indictment charged that the defendant, "being the agent of the * * * and having then and there in his custody and possession as such agent, as aforesaid, * * * did,” etc. This is substantially the same as the charge in the case before us, and the court held that it sufficiently charged that the defendant was the agent, and that he had possession of the funds alleged to have been embezzled by virtue of his employment as agent.
In the case of State v. Manley (1891), 107 Mo. 364, 17 S. W. 800, it was held that an indictment charging "-that James Manley, * * * then and there being an officer duly elected by virtue of the law of the State of Missouri, to wit, a constable,” sufficiently avers that defendant was an officer.
In the ease of State v. Fogerson (1860), 29 Mo. 416, an indictment which charged that the defendant did disturb the peace "by then and there cursing and swearing, and by loud and abusive and indecent language,” was held good.
In the case of State v. Bloor (1898), 20 Mont. 574, 52 Pac. 611, it was said that "a material averment may sometimes be introduced with as much clearness and certainty by means of the participial clause, commenced by the word ‘being,’ as in the form of a direct proposition of a declarative sentence.”
In the case of Commonwealth v. Creed (1857), 74 Mass. 387, an indictment charging the defendant with "then and there being armed with a dangerous weapon, to wit, a gun,
In the ease of State v. Boncher (1884), 59 Wis. 477, 18 N. W. 335, where the indictment charged that the persons therein named, to whom the defendant sold liquors, “who being minors,” it was held sufficient. The court said: “Had the word ‘they’ been employed instead of ‘who,’ there could be no doubt of the sufficiency of the averment.”
In the case of People v. Hamilton (1893), 32 Pac. (Cal.) 526, an information alleged that the defendant, “having heretofore” been a county clerk and charged with the safekeeping, etc., of {he public funds, and his official term having expired, he wilfully omitted to pay them over to his successor. It was held good.
In the case of Battrell v. Ohio River R. Co. (1890), 34 W. Va. 232, 12 S. E. 699, 11 L. R. A. 290, where the question of participles and recitals is discussed, the court said: “The first assignment of error is that the court overruled a demurrer to the declaration. Counsel for appellant points out as a defect in the declaration the fact, that, by way of recital, it alleges: ‘ The plaintiff being then and there, and still being, owner in fee of the land in said alley, to the median line thereof, and the plaintiff, by reason of the acts and doings aforesaid of the defendant, being cut off and deprived of access to the back part of his said lot over and by means of said alley;’ whereas it should have positively and directly made those averments, because it is a general rule of pleading that whatever facts are necessary to constitute the cause of action must be directly and distinctly stated. 3 Rob. Pr. (new) 530; Burton & Co. v. Hansford [1877], 10 W. Va. 470, 27 Am. Rep. 571. The rule of pleading forbidding the statement of facts constituting the cause of action with a quod cum, that is, ‘for that whereas,’ which is purely by way of recital, is centuries old, and, though tech
In the ease of In re Nickodemus (1869), Fed. Cas. No. 10,254, the court held the language, “N., ‘being a merchant,’ ” is sufficient averment that he is a merchant under clause nine of the bankruptcy act.
It was held in the case of United States v. Fox (1868), 1 Lowell 199, 201, Fed. Cas. No. 15,156, that “then and there distilling and manufacturing spirits,” etc., is a sufficient affirmative allegation that the defendant did distill such spirits.
In the following cases the indictment was in the participial form and was held sufficient: Quertermous v. State (1910), 95 Ark. 48, 127 S. W. 951, 952; Fleener v. State (1893), 58 Ark. 98, 100, 101, 23 S. W. 1; People v. Ennis (1902), 137 Cal. 263, 265, 70 Pac. 84; People v. Piggott (1899), 126 Cal. 509, 511, 512, 59 Pac. 31; Lycan v. People (1883), 107 Ill. 423; Bergen v. People (1856), 17 Ill. 426, 65 Am. Dec. 672; State v. Hutchinson (1853), 36 Me. 261, 263; State v. Jackson (1855), 39 Me. 291; State v. Palmer (1852), 35 Me. 9; State v. Minch (1875), 22 Minn. 67, 68-70, 74; State v. Roberts (1872), 52 N. H. 492, 493, 497; State v. Parker (1876), 57 N. H. 123; State v. Hooker (1845), 17 Vt. 658, 659-661, 667; State v. Bridgeman (1876), 49 Vt. 202, 24 Am. Rep. 124; State v. Bogardus (1904), 36 Wash. 297, 303, 304, 78
While it is trae that the participial form of averment may not be the best method of stating a fact, yet it is held sufficient as to facts like the ones here involved in states having statutory provisions in regard to the sufficiency of indictments substantially the same as ours, as is shown by the authorities before cited.
As was said by this court in the case of Thomas v. State (1885), 103 Ind. 419, 435: “The strict rules applied in criminal pleading and practice are a part of our inheritance from the mother country. They came to us from another age, and grew up in a different state of society. Some of them have been greatly modified by statutes in many of the states and others have been, in some degree, relaxed by the rulings of the courts. The modern tendency, both in legislation and judicial determination, is to relax the severe rigor of those rales, so as to apply them to the changed order of things, and still protect the liberty of the citizen to the fullest extent. In speaking of those strict rules, more especially as applied to criminal pleadings, Mr. Wharton, in his work on Criminal Pleading and Practice, §173, says: ‘The great rigor of the old English law in this respect was one of the consequences of the barbarous severity of the punishment imposed. A more humane system of punishment was followed by a more rational system of pleading. ’ ’ ’
To carry out this purpose it is enacted that “the words used in an indictment or affidavit must be construed in their usual acceptation, in common language, except words and phrases defined by law, which are to be construed according to their legal meaning” (§2044 Burns 1908, Acts 1905 p. 584, §173); that “words used in the statute to define a public offense need not be strictly pursued, but other words conveying the same meaning may be used” (§2045 Burns 1908, Acts 1905 p. 584, §174); that an indictment or affidavit shall
And it is provided that no indictment shall be deemed invalid or shall be quashed for any of the following defects: ‘ ‘ Sixth. Por any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and the person charged. * * * Tenth. Por any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” §2063 Burns 1908, Acts 1905 p. 584, §192.
Finally it was provided that, “in consideration of the questions which' are presented upon an appeal, the court shall not regard technical errors or defects, or exceptions to any decision or action of the trial court, which did not, in the opinion of the court to which the appeal is taken, prejudice the substantial rights of the defendant.” §2221 Burns 1908, Acts 1905 p. 584, §334.
Under said provisions of the statutes concerning public offenses, it is evident that criminal pleading need not be framed in the technical language that prevailed under the common law. To hold otherwise would render the provisions of said sections vain and useless, and would require us to return to the same technical system of pleading abolished or rendered unnecessary by the code of procedure in criminal cases. Woodward v. State (1885), 103 Ind. 127.
Appellant contends that the instruction is erroneous because “it was an undisputed and unqualified fact, proved by the testimony of a witness for the State, that by the acquiescence of the company in the practice of the appellant, its agent, the appellant was authorized to cash the check, and to deposit its proceeds in bank in the manner in which he did. This being true, his act was lawful and could not have been made the basis of an inference against him. The doing of a lawful act, even with a wrongful intent, cannot be made the basis of a crime. To constitute a crime of which intent is an element, two things must concur: (1) An unlawful act, and (2) a wrongful intent. If either is wanting the crime does not exist.” This argument is erroneous. Authority to do the act relied on as conversion is no defense if it was done with felonious intent. The intent with which the act was done was the vital question in the ease. The rule is that when an agent or employe does with money or property in his possession only what he is authorized to do by the terms of his employment, having no felonious intent, he is not guilty of embezzlement. But the authority to sell property or otherwise to deal with it is no defense to a charge of embezzlement, if the agent or employe converts it to his own use with a fraudulent intent. Therefore when an agent or employe has authority to sell or otherwise dispose of property, and does sell or otherwise dispose of it, not for the purpose authorized but with the fraudulent intent to appropriate it, or its proceeds, to his own use, he is guilty of embezzling the property itself, as much as if he had no authority to sell or otherwise dispose of it, for the sale or disposition of the property with said fraudulent intent is a
While said instructions may be inaptly drawn the jury could not have been misled thereby. Considering said instructions in connection with all the other instructions given any one would understand that the felonious intent charged must accompany the conversion.
This is hardly a fair statement of the record, for there was evidence from which the jury might find as it did, that the check was delivered and made payable to appellant as the agent of said trust company to pay in full a debt due to said company which was secured by a mortgage on property owned by one Altdredge, for whom the maker of the check was acting. It may be true as claimed by appellant that during a continuous period of ten years appellant had been the agent of said trust company at Princeton and in the conduct of his agency it had been his custom from the begin
It was shown at the trial that a certain elevator company, in which appellant was interested was in the hands of a receiver and that appellant was on its paper for large amounts; that appellant was “short” with the trust company and that he was insolvent. All this tended to show the financial condition of appellant at the time of the alleged embezzlement, and it is a rule, supported by the weight of authority, that proof of insolvency at and before the time of the embezzlement is admissible on behalf of the State as tending to show the motives and intent of the defendant. The jury were told they might consider this evidence on the question of intent. Said instruction was not erroneous. Dimmick v. United States (1905), 135 Fed. 257, 266, 70 C. C. A. 141, and cases cited; State v. Moyer (1905), 58 W. Va. 146, 52
The cases cited by appellant in support of said contention are either not in point, for the reason that it was impossible to reconcile the proof with the allegation, or they are forgery cases in which the rule of pleading is widely different from that in cases of larceny and embezzlement. Thomas v. State, supra; State v. Laechelt (1908), 18 N. Dak. 88, 118 N. W. 240; State v. Thompson (1895), 28 Or. 296, 300, 42 Pac. 1002; People v. Arras (1891), 89 Cal. 223, 26 Pac. 766; 2 Bishop, Crim. Proc. (4th ed.) §732.
It is evident that the variance with reference to the name of the payee of the check was not material and that it in no manner tended to prejudice defendant in any of his substantial rights, and therefore furnishes no ground for reversal. §2221, supra.
As to the manner of proving fraudulent intent, and the necessity for demand, Wharton says: “But if he had received the money and rendered an account in which it was
Under the authorities cited in this opinion, there was legal evidence to sustain every essential element of the crime charged.
The court did not err in overruling the motion for a new trial.