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The Board of Commissioners of Cass County v. Crockett.

Both of the appropriations made by the board of commissioners were, as must have been observed, for the raising and maintaining of military companies within the county of Cass for the service of the United States, and, hence, were plainly intended only to procure the voluntary enlistment of men not already in the military service. The call of the President was upon its face a call for additional men to be added to the military forces already in the field, and the appropriations were obviously made in aid of the object which the President thus had in view in making the call. The raising of additional troops involved an important question of public policy. The adjustment of the credits for troops already in the service presented a question of only incidental and much inferior importance. The offer, therefore, of bounties as an inducement to men to thereafter enter the army, and to thus increase its numerical force, was a very different thing from offering bounties to men already in the army as a means of swelling the credits to which the county was entitled under some previous call. Consequently the propositions contained in the orders of the board hereinabove set out were not addressed to men who were already in the military service of the United States, but to another and entirely different class of persons. It follows that the agreement alleged to have been entered into by the appellee and other veterans on the 10th day of March, 1865, was neither responsive to, nor an acceptance of, any proposition contained in those orders. That agreement was rather in the nature of a counter-proposition which would have required the further order of the board to have made it mutually binding as a contract between the parties. No such further order of the board was averred in the complaint, and, hence, the complaint was not based wholly upon a contract in writing, if, indeed, upon any well pleaded contract.

Under such circumstances the six years statute of limitations was a good defence to the action, and the circuit court erred in sustaining a demurrer to the paragraph of answer The Board of Commissioners of Cass County v. Crockett.

setting up that statute. Board, etc., v. Shipley, 77 Ind. 553; High v. Board, etc., 92 Ind. 580; Hackleman v. Board, etc., 94 Ind. 36.

At the trial there was no evidence either showing or tending to show that the proposition contained in the alleged agreement of the 10th of March, 1865, signed by the appellee and others, was ever accepted by the appellant, or any one acting in its behalf, or had anything whatever to do in procuring the appellee's previous re-enlistment to be credited to Cass county. On the contrary, the appellee's muster-in roll, which was read in evidence, described him as a resident of Washington township, Cass county, at the time of his reenlistment, and, therefore, contained facts tending to prove that, in legal contemplation, the appellee was credited to Cass county when he was mustered into the service under his re-enlistment. Board, etc., v. HamrAond, 83 Ind. 453; 13 United States Statutes at -Large, 489, sections 13 and 14.

Neither was it shown that Mr. Pratt was at any time agent of Cass county, either for obtaining recruits or credits of men for that county.

If, as a matter of law, the appellee was credited to Cass county, at the time he was so mustered in, or that county then became entitled to have him so credited, any subsequent promise made to him for the purpose of obtaining his consent to be credited to Cass county was without consideration.

The conclusion to which we feel constrained to come, is that the verdict was not sustained by sufficient evidence, and that, for that reason, a new trial ought to have been ordered.

The judgment is reversed, with costs, and the cause is remanded for further proceedings.

Filed June 21, 1887.

Ritter v. The State.

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No. 13,787.

RITTER v. THE STATE.
CRIMINAL LAW.-- Embezzlement.Indictment.—“Employee.”—Meaning of and

Averments as 10.— The word “employee " has a well defined meaning, and
in an indictment for embezzlement against one employed by another,
charging him with having embezzled the funds of his employer, it is
sufficient to describe him as an "employee,” without setting out the

facts constituting the employment. SAME.-Supreme Court. - Practice.- Case not Reversed on Weight of Evidence.

In a criminal case the verdict will not be disturbed on appeal, nor the

judgment reversed, merely on the weight or sufficiency of the evidence. 12: From the Elkhart Circuit Court.

H. C. Dodge, for appellant.

L. T. Michener, Attorney General, F. D. Merritt, Prosecuting Attorney, and J. H. Gillett, for the State.

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Howk, J.-The indictment in this case charged that appellant, Ritter, “on the 23d day of September, 1886, at the county of Elkhart and State of Indiana, was then and there an employee of one John McCarter; that said Daniel Ritter, as such employee, then and there had the control and possession of divers moneys, bills, notes, United States treasury notes, and national bank notes, current money of the United States, amounting in all to the sum of $315, of the property of the said John McCarter, to the possession of which the said John McCarter was then and there entitled; a more particular and accurate description of said moneys, bills, notes, United States treasury notes and national bank notes, is to this grand jury unknown and can not be given for the reason that they are in the possession of some person or persons to this grand jury unknown; that said Daniel Ritter did then and there, and while in the employment of said John McCarter, unlawfully, purposely, knowingly, fraudulently and feloniously purloin, secrete, embezzle and appropriate to his own use all of said moneys, bills, notes, United States treasury notes and national bank notes, then and there

Ritter v. The State.

in the possession of said Daniel Ritter as aforesaid, without then and there having the consent of said John McCarter so to do."

Appellant's motion to quash the foregoing count of the indictment herein was overruled by the court, and this ruling is the first error, of which complaint is here made by his learned counsel. It is manifest that, in and by this first count of the indictment, the State intended to charge appellant with the commission of the public offence, which is defined and its punishment prescribed in section 1944, R. S. 1881. In that section it is provided as follows: "Every officer, agent, attorney, clerk, servant, or employee of any person or persons, 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, * * * 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," etc.

It is claimed on behalf of appellant, that the trial court erred in overruling his motion to quash the first count of the indictment, because it charges that appellant was "an employee of one John McCarter," and does not state the facts which would enable the court to ascertain and determine whether or not he was such "employee" within the meaning of that word as used in the statute. In discussing this objection to the indictment, appellant's counsel says: "In criminal pleading it is necessary to specify facts from which the conclusion flows that one is an employee; it will not do to state the conclusion. It was necessary for the Ritter v. The State.

pleader to state, in the indictment, the capacity in which appellant was engaged; and it would be for the court to state, as matter of law, on motion to quash, whether or not under the averments of the indictment a public offence had been committed. The ultimate fact to be found, to constitute guilt, was the fact whether appellant was an employee, or not an employee. It will not do to charge, in the indictment, the ultimate fact."

We do not think this objection to the indictment is well taken or can be sustained. The word "employee," although of French derivation, was long since transplanted and adopted as an English or, at least, an American word. In this country it is of such common use that its meaning is not at all uncertain. Besides, the word "employee" is one of those used in the statute, in specifying the persons who may commit the public offence of embezzlement; and, as a general rule, under our decisions, in framing an indictment or information, it is safe to adopt and follow the terms and language of the statute. Shinn v. State, 68 Ind. 423; Howard v. State, 87 Ind. 68; Toops v. State, 92 Ind. 13; State v. Miller, 98 Ind. 70.

Webster thus defines the word "employee:" "One who is employed." If, in the case in hand, appellant was not employed by John McCarter, in any capacity or for any purpose, he was not guilty of the crime of embezzlement as defined in our statute; but if he was so employed, no matter in what capacity or for what purpose, and by virtue of his employment was entrusted with money of his employer, which he fraudulently and feloniously appropriated to his own use, he was no doubt guilty, under our statute, of the public offence of embezzlement. 1 Bishop Crim. Law, section 567; 2 Bishop Crim. Law, section 325.

It is doubtful whether the indictment under consideration does, or does not, show with sufficient certainty that appellant, by virtue of his employment; was entrusted with the money upon which the charge of embezzlement against hira is predicated. Smith v. State, 28 Ind. 321; State v. Wingo,

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