62 N.E.2d 624 | Ind. | 1945
Waiving a jury appellant was tried and convicted of larceny of four cans of Prestone. The only question presented is whether the finding is contrary to law. The evidence leaves no doubt that for more than six months he continued to take property of his employer and convert it to his own use, but he contends that his employment was such as to make his crime embezzlement rather than larceny.
He was employed as a member of a maintenance crew *554 under a foreman in Plant No. 2 of the Allison Division of General Motors Corporation. The plant contained tanks for reception 1. and storage of gasoline, oil and Prestone. To a storage building housing Prestone both the foreman and appellant had keys. "The Chief Engineer . . . had exclusive control in Plant No. 2 of this Prestone." Appellant was not authorized to remove Prestone from the building except on requisition from some other person in authority. One of appellant's duties was to receive gasoline. A confederate (who pleaded guilty to the same affidavit upon which appellant was tried) was employed by a trucking company to deliver gasoline to the plant and thus obtained ingress. His truck was used to take away Prestone abstracted by appellant from the storage building. The Prestone was sold and the proceeds divided by appellant and the truck driver. A statement signed by appellant, and admitted in evidence, related numerous such transactions from June through August, 1943. In November they "took out some 30 to 35 drums of Prestone," each containing 55 gallons and sold them for $83 per drum. Appellant's employer became suspicious and early in January, 1944, investigators observed appellant surreptitiously placing four cans in the truck. It was followed away from the plant and the cans, containing Prestone, were recovered. No contention is made by appellant that he had a requisition when he took this Prestone. There was other testimony more favorable to appellant's theory, but upon appeal we look only to the evidence tending to support the finding.
The facts related bring the case within the rule of Colip v.State (1899),
"Where there is at most but a naked possession or control — that is, a bare charge — or where the access consists of a mere physical propinquity as an incident of the employment, the felonious appropriation should be regarded as larceny. The reference in the embezzlement statute to officers, agents, attorneys, clerks, servants, and employes is plainly indicative of the intent to limit the denouncement of the statute to cases in which such persons have, as an element of their employment, a special trust concerning the money, article, or thing of value that involves an actual possession thereof or a special right of access to or control over the same. This requirement would not be satisfied, as we may indicate by way of illustration, by the mere control, possession, or physical opportunity of access, which a watchman in charge of a store might have. As before indicated, the relationship contemplated by the statute is one of special trust and confidence; a relationship in which there inheres, either for the particular transaction or for all purposes, a special right of access to, control, or possession of, the money, article, or thing of value which is appropriated."
Usually a watchman carries a key. Appellant's key made access easier but did not give him possession. *556
We regard as immaterial the fact that he was bonded against embezzlement. It perhaps was a circumstance which the court might have taken into consideration in determining the relationship of the parties, but it was in no sense controlling. Appellant's contention that animus furandi was not proved is controverted by the evidence showing that the crime was preceded by similar consummated thefts over a period of many months. Similar transactions may be shown to prove felonious intent, knowledge and other similar states of mind. Anderson v. State (1941),
The cases relied upon by appellant belong to another category.Davis v. State (1925),
Judgment affirmed.
Note. — Reported in