Epitomized Opinion

Ruthven was indicted for fraudulently converting to his own use $1500, which had been1 deposited with him for safekeeping. He had been conducting a bonding and depositing business, and one Danesh deposited with the accused Liberty Bonds to' the value of $1500. Danesh was given a receipt for these bonds, which stipulated, according to his oral testimony, that the bonds could be used as ■ collateral in the company’s business, but were to be redelivered to the owner upon demand. In addition to the interest on the bonds, Danesh was to receive 4% interest for their use. About a year afterwards the owner demanded the bonds. Instead of returning the bonds, Ruthven took up the receipt and gave Danesh another in its place. The owner demanded the bonds from time to time, but was repeatedly put off by thea ccused. Finally, Ruthven told him he did not have them, and that he could not turn them over to him. After being indicted, a motion to quash the indictment was made by the accused upon the ground that the indictment was insufficient on its face. This motion being overruled, Ruthven was tried and convicted. He then prosecuted error. Held:

1. That the indictment was sufficient because the gravamen of the offense was the failure' to return the bonds which had been placed in trust.

2. Inasmuch as the owner did not intend to part with the title to these bonds, the relationship between the parties was that of depositor and depositary, rather- than creditor and debtor.

3. While the owner knew that the bonds were to be used, the accused had no power to use them in a way inconsistent with the owner’s right and power to have them returned at any time. ■