154 Ind. 443 | Ind. | 1900
The indictment against appellees was quashed and the State appeals. It charged that on, etc., at, etc., "Winstandley was the president and Frederick the cashier of the New Albany Banking Company, a corporation organized under the State laws and. doing a-banking business at New Albany; that the bank was wholly insolvent, which fact was known to Winstandley as president and Frederick as cashier of the bank; “that they, the said Isaac S. Winstandley and Clarence J. Frederick, each then and there
Probably it is true, as the State’s attorneys claim, that “embezzlement” is an inapt naming of the crime defined in this statute, and that the offense aimed at is fraudulent banking. Carr v. State, 104 Ala. 4, 16 South. 150; Robertson v. People, 20 Col. 279, 38 Pac. 326; Meadowcroft v. People, 163 Ill. 56, 45 N. E. 303, 35 L. R. A. 176; State v. Cadwell, 79 Iowa, 432, 44 N. W. 700; Commonwealth v. Rockafellow, 163 Pa. St. 139, 29 Atl. 757; Baker v. State, 54 Wis. 368, 12 N. W. 12; State v. Shove, 96 Wis. 1, 70 N. W. 312, 37 L. R. A. 142; In re Cook, 49 Fed. 833. But it does not follow that the rules of pleading applicable to embezzlement are not controlling in this case. If the defendants are auswerable, it is for abuse of their official duties. A consistent system should apply the same rules to all cases in which the abuse of official duty is an essential element, so far as that feature is concerned. And therefore the rules of pleading that govern in bribery of an official, extortion by an official, embezzlement by an official, etc., are
“An indictment for the bribery of an officer or functionary of justice should allege the pendency and character of the suit or duty in which he was to be thereby influenced, with such averments as to show that" the intent was to bribe him in respect to his official duties.” 3 Ency. PL & Pr. 698. “Defendant’s receipt -of property embezzled. — It must be directly and positively alleged that the property came into the defendant’s possession and was held by him by virtue of his being a servant, agent, bailee, trustee, or officer, as the case may be.” 7 Ency. Pl. & Pr. 422. Ex-, tortion. “It is usual and probably indispensable to charge that the money was taken under color of office. And the indictment should state what the office was. Lack of the allegation that the money was extracted under color of office renders the indictment defective in substance, and this defect is not waived by pleading to the indictment or cured by verdict.” 8 Ency. Pl. & Pr. 793. State v. Oden, 10 Ind. App. 136, was a prosecution against a county clerk for extortion. The indictment alleged that the moneys were received by the clerk for fees claimed to be due him in a certain action, but failed to charge that he demanded and received them in his official capacity. The court said: “The indictment under consideration wholly fails to show that appellee received the money as fees for the performance of any official duty, or in his official capacity. So far as the allegations of the indictment advise us, it may have been claimed by him for services as witness or juror in the case.” In Moore, v. United States, 160 U. S. 268, 16 Sup. Ct. 294, 40 L. ed. 422, the indictment charged that the defendant “Moore, being then and there an assistant, clerk, or employe, in or connected with the business or operation of the United States post-office in the city of Mobile, in the state of-Alabama, did embezzle the sum of-, money of the United States, of the value of -, the said money being tha
Whether or not appellees received the money in their official capacity is left to conjecture. The indictment states that appellees were president and cashier of the bank; that the bank was insolvent, etc.; and that appellees received from The F. Wunderlich Company a certain sum of money as a deposit with the bank, etc. There is no averment that the money was received by them in their official capacity. Nor are there allegations from which such fact would follow as an inevitable conclusion. For aught that appears in the indictment, appellees may have received, at their homes, or on the street, the money of The F. Wunderlich Company as a deposit with the bank, — and the bank may never have received it. It may also be conjectured that the bank received the money through appellees as its officers. But accused persons are not to be arraigned on conjectures.
Judgment affirmed.
Dowling, J., took no part in this decision.