The Plymouth tribune. (Plymouth, Ind.) 1901-1911, 1906-11-22
WILL FREE SHERRICK.
Supreme Court Reverses Lower
Court Decision.


Court Decision.
The Indiana supreme court re-
versed the decision of the Marion
county criminal court Friday, in
the .Sherrick case.
David E. Sherrick, former au-
ditor of state, convicted by the
local court for embezzling state
funds, will be freed from the
Michigan City penitentiary, tenn
porarily, at least. And it is not
improbable that he will never be
brought to trial again, SO sweep
ing is the decision of the supreme
court. =.
The reversal is based on the
general proposition that Sherrick
as auditor of state was not legal
ly chargeable with the collection
and care of the insurance taxes
and fees which he is alleged to
have embezzled. This was the
contention that Sherrick's attor-
neys4-made, during the trial and
afterward in the appeal brief be-
fore the supreme court. The
court holds that this contention
is true: Sherrick, not being the
proper collecting officer, for these
insurance taxes, was not legally
chargeable with them.
The law provides that such
taxes shall be paid into the state
treasury" 1t makes no provision
as to whom, personally, the taxes
are to be paid. Away back in
the past a clause was inserted in
the tax notice to the insurance
companies to the effect that the
taxes were to be paid to the state
auditor, and in compliance with
this such taxes had been SO paid
for years.
Sherrick, as other state audi
tors before him, had collected
these taxes. He admitted in a
letter to the governor that he had
used part of the tax money. This
letter, and the general proof that
he had used these taxes for pri-
vate purpose formed the basis foI
the conviction.
The decision reverses Judge
McColloughs' ruling and instruc-
tons as to the responsibility for
this money. 1t holds that as
Sherrick was not the proper col
lecting officer for this money, il
did not come into his hands as
state money, hence the state could
not prosecute him for a misuse OF
such money.
The court held that in accept
ing this money from the insur-
ance companies, Sherrick acted
as the agent of the insurance
companies themselves and not as
the agent for the state. Accord
ing to the theory of the reversal
the companies paid Sherrick as
they would pay any agent OF
theirs, and the responsibility was
on the shoulders of the company.
If that money was not paid to
the state, it was the fault of the
insurance companies who had
trusted an agent who had betray-
ed that trust. 1t was no con-
Germ of the state as to what be-
came of the money, SO far as the
agent was concerned. If the
money was lost, the state could
recover, true enough, but from
the companies, who were the
principals ;.and not from the au-
ditor, wfb was merely the agent
of the companies.
Under this theory, then, the
state could not proceed against
Sherrick and thesdeeision based
upon such proceedings was
wrong. y
The decision still leaves oppor-
tunity for proceedings against
the ex-afiditor,' but At is not
thought that they will be. started
The i..srfrarce companies, whose
agent, thu Supreme court holds
Sherrick have been. may pros
ecute him for embezzlement. II
he embezzled at all, it was from
them, according to the decision
Hence they might proceed. In
asmuch sail of the money wa:
paid, however, and none of the
Insurance. companies suffered
any loss, it is not, probable that
these COMPANIES will bring any
criminal slit against Sherrick.