
    No. 236
    SWISHER et v. STATE
    Ohio Appeals, 2nd Dist., Montgomery Co.
    No. 615.
    Decided Feb. 4, 1925.
    456. EMBEZZLEMENT—Use of deposits on building contracts, by applying them on debts of Realty Company, held to be.
    Published only in Ohio Law Abstract
    Attorneys—Herbert E Kreitzer, Fredrick W. Howell, for Swisher; Albert H. Scharrer, Paul J. Wortman for State; all of Dayton.
   ALLREAD, J.

Epitomized Opinion.

The Swishers, plaintiffs herein, were indicted in Montgomery County for embezzlement of property fixed at $954Í.50; alleged as being the personal property of the Swisher Realty Company. The Swishers were officers in the Company, and conceived the idea of building a number of houses of various owners at certain prices stated in written contracts between the Realty Co., and the owners of the buildings. Each owner was required to deposit 10% of the contract price, and it was out of these funds that the embezzlement was committed. One, Caldwell, who contracted to build the buildings in question testified, that he received practically none óf these deposits. Swishers sought to justify the use of the money upon the theory that it was used to defray the obligations of the Realty Co. to them. The Montgomery Common Pleas rendered judgment in favor of the State.

On prosecution of error, the Court of Appeals, held:

Under the building contracts, it is clear that the deposits were to be used only for those purposes therein mentioned and could not be used for indebtedness of the Realty Co. to Swishers.

Evidence of State tended to prove that in a majority of cases, very little work had been done on the buildings, therefore proving a case of embezzlements against the plaintiffs.

Judgment of Common Pleas affirmed.  