CONCURRING OPINION. I concur in the result reached by Judge Treanor. My reasons for my conclusion follow:
The record at bar does not satisfactorily disclose the theory upon which this case was tried. The affidavit charges that money was embezzled and hence clearly charges appellant with the offense of embezzlement, as defined by statute, § 2470 Burns 1926. The evidence, in some respects, indicates a trial on the theory that appellant embezzled a check. The amount in dollars said to have been embezzled was $268.85. There is nothing in the record to indicate that a check for any such amount had any part in the transaction. Appellant was the agent of the Prudential Insurance Company and he was authorized by that company to adjust a death claim on two policies payable to Shindledecker as beneficiary. The adjustment fixed the Company's loss at $756.40. The Company placed in appellant's hands its check drawn on a Chicago bank payable to Shindledecker for $756.40. This check, although endorsed by Shindledecker, was never turned over to him in payment of his claims. Appellant, on July 3rd, deposited this check, together with $103 in currency and 60 cents in change, totaling $860, in the Fletcher American National Bank of Indianapolis, and had the same credited to his individual account. Prior to this date he had no account in this bank. Thereafter, it appears from the books of the bank that checks, to whom is not disclosed, *Page 340 were drawn against this account by appellant and cashed, July 5th, $230; July 7th, $75; July 11th, $12; July 11th, $487.55; July 12th, $50; July 13th, $4, and Aug. 2d 83 cts., leaving in the bank to his credit on this last date, 62 cts. It is admitted that the check for $487.55 was issued to Shindledecker in payment of the larger one of his claims. The payment of this last check reduced appellant's balance to $55.45, which, except 62 cts., was checked out in the amounts above stated.
The evidence shows that the Insurance Company, after Shindledecker brought suit against it, paid to him his other claim amounting to $268.85. The evidence fairly shows that none of the checks drawn by appellant against his account in the bank, save the one, were in favor of Shindledecker. The credit in the bank of the Insurance Company check, although in the name of appellant, must, in the absence of a showing to the contrary, and there was no such showing, be regarded as under his control as the agent of the Company for a specific purpose. For aught appearing, the Shindledecker claims were to be paid in money. The method adopted by the Company for transferring the money from its Chicago bank account to Shindledecker was by check. For that purpose the check was drawn and in due course, on July 5th, it was paid to the Indianapolis bank. Through these instrumentalities the Company's check was changed to money in bank, subject to the personal check of appellant. While it may be said that as between the Indianapolis bank and appellant the relation of debtor and creditor existed, yet, as between the Insurance Company and appellant they were principal and agent as to responsibility for the money obtained by cashing the Shindledecker check. The mere cashing of the check by appellant, under all of the circumstances here shown, was not an infraction of the *Page 341 statute, supra. The violation took place when he converted to his own use or benefit, if such be the case, the money for which he had, by circuitous means, obtained credit in bank. Of the money so transferred to the control of appellant, he properly accounts for $487.55. As to the remainder, $268.85, the inference might well be drawn from the evidence that it was appropriated by appellant to uses otherwise than that authorized by the Company, or for its benefit.
The affidavit charges appellant with the embezzlement of money in violation of a statute which must be strictly construed, yet, in my judgment, the requirements of the statute are sufficiently met when money is intrusted to an agent, whether cash in hand or, in the usual course of business, money in bank, and he misappropriates it to his own use or benefit, the evidence otherwise being sufficient, he would be guilty as charged regardless of the fact, as here, that checks were employed by him in accomplishing his purpose.
Under all of the circumstances shown in this case, supplemented on appeal by the presumption in favor of correct action on the part of the trial court (Indianapolis Traction, etc., Co. v.Hensley [1917], 186 Ind. 479, 495, 115 N.E. 934, 117 N.E. 854), I am convinced that we would not be justified in disturbing the judgment rendered below.
Travis, J., concurs. *Page 342