Brenner v. State

• Decision Date: 09 December 1965
• Citation: 398 S.W.2d 252,217 Tenn. 427,21 McCanless 427
• Parties: Lester H. BRENNER v. STATE of Tennessee. 21 McCanless 427, 217 Tenn. 427, 398 S.W.2d 252
• Court: Tennessee Supreme Court

Page 252

398 S.W.2d 252

Lester H. BRENNER v. STATE of Tennessee.

21 McCanless 427, 217 Tenn. 427, 398 S.W.2d 252

Supreme Court of Tennessee.

Dec. 9, 1965.

Hal Gerber and Marshall Gerber, Memphis, Gerber & Gerber, Memphis, of counsel, for plaintiff in error.

George F. McCanless, Atty. Gen., and Robert F. Hedgepath, Asst. Atty. Gen., Nashville, for the State.

BURNETT, Chief Justice.

Plaintiff in error was indicted, found guilty of forgery of an instrument not exceeding the value of one hundred ($100.00) dollars, and was sentenced to serve not more than five years in the State penitentiary. From this conviction an appeal has been seasonably perfected, able briefs filed and arguments heard.

The facts out of which this indictment arose are that there was an election held in Shelby County on November 7, 1963. This election was under the direction of the Shelby County Election Commission, which has three members, a Chairman, Secretary and third member. The plaintiff in error is the Secretary of this Commission. The record shows that for many years in Shelby County the Secretary of the Comission has been given the responsibility of handling practically all of the administrative responsibilities of the board at election time, and for this he is given additional compensation.

Since voting machines are being adopted by all large cities and they are in use in Shelby County, it has become necessary for the Election Commission to hire instructors whose duty it is to be available at the polling places on election day and give instructions to persons who do not know how to use the voting machines. Normally such instructors are more in demand in the colored neighborhoods where persons are not accustomed to voting. Prior to this election the plaintiff in error had hired numerous persons as voting machine instructors. Those hired attended a schooling session which lasted from fourteen to sixteen days, and they were paid $10.00 per day for attending this school. In addition to the voting machine instructors the Election Commission, acting through its Secretary, has for a long time had the responsibility of seeing that workers were available at the polls to handle the voting processes with respect to polling books, etc. This in a large county like Shelby is indeed a very sizeable job and there are generally from two to three thousand persons hired to conduct the election in the various wards and precincts throughout the county.

On the day of the election in question, November 7, 1963, as is generally true, a number of persons who had been contacted to work didn't show up. Under such circumstances the practice has developed that in each voting place the chief official selects certain persons to fill in as workers for that day. In view of this fact that these people are put to work on the day of the election a development has grown up in Shelby County for the officer in charge of the voting place to complete a 'Payroll Sheet' which is turned in with the poll books, etc., immediately after the election, to the County Courthouse. These payroll sheets are then turned over to the Election Commission in order that the names of the workers to be paid by the county can be verified and authenticated by the Election Commission.

In the election in question the Commission's office received the payroll sheets immediately after the election, checked to see that the names were legible, and prepared envelopes which were to be used later for mailing county warrants to the individuals who had worked in the election. These payroll sheets were then sent to the office of the Chairman of the County Court--he is the chief financial agent for the county. It is the responsibility of his office to prepare and issue county warrants for debts of the county. After the election the Chairman's office prepared the warrants and sent them back to the Commission's office in order that they could be mailed to the respective payees.

According to the testimony of one of the secretaries of the plaintiff in error, a Mrs. Glanville, the plaintiff in error presented her with a list made out on a yellow legal pad of approximately sixty names which he directed her to add to the various payroll sheets which were to be sent to the County Chairman's office so that the persons on this list could be paid ten dollars each for working in the election. The names on this list were made out in the handwriting of plaintiff in error, and, contrary to the normal procedure, there were no addresses listed to the side of the names of the particular persons. Another secretary in the office of plaintiff in error verified this testimony as did plaintiff in error himself in his testimony. Mrs. Glanville testified, with reference to this sheet which had no addresses on it, that the plaintiff in error told her: 'After I told him we would have a little controversy about it, he said it would be all right to add addresses.' Thus Mrs. Glanville testified that she just picked addresses at random and out of the thin air and included them in the payroll list that went to the County Chairman's office.

A Mrs. Ragsdale, who is likewise a secretary to plaintiff in error, helped in preparing these lists of employees at the polls. She received some of the names which plaintiff in error had added and was expected to include them on some of the payroll sheets for the purpose of having county warrants issued to the particular persons. Mrs. Ragdale, in adding the names from the list given her by the plaintiff in error, did not put addresses on the payroll sheets. She testified: 'I said, 'Well, what ward and precinct,' and he said, 'Just start copying one at the bottom of the sheets here,' and I thought nothing about it.'

Plaintiff in error, when he took the stand as well as in a statement that he gave the District Attorney General, admitted that he had prepared a list of names and directed the two secretaries to add them to the various payrolls which were to be sent to the County Chairman's office. He said after the election was over he received a number of calls telling him certain persons had worked and that he should put their names on the lists for pay. He did not remember from whom he received these calls nor did he obtain any addresses for the names of the particular persons who worked. He testified that he assumed these persons would come down to the election office and pick up their checks since this was not an unusual practice.

These is no question in this record but that all of the names submitted to the County Chairman's office, both for the workers in the election whose names were added to the payroll sheets and the instructors at the voting machine places, were submitted at the direction of the plaintiff in error. Plaintiff in error likewise prepared two letters which listed the names of persons who had attended the voting machine instructor's school. Each of the persons who attended the voting machine instructor's school were to be issued a warrant for ten dollars per day for sixteen days or a warrant for $160.00. The plaintiff in error admits that he wrote two letters to the Chairman's office authorizing the issuance of these warrants. Thus it is that it clearly appears that each of the names that were added to the payroll sheets were added at the direction of the plaintiff in error, and certain of the names included in the voting instructor's list were of fictitious persons.

The State in its evidence in chief introduced volunminous proof which shows that persons included were not residents of Shelby County, were unknown to the neighborhoods near the voting precinct, and could not be found in the city directory or by the police department. It was likewise shown that the addresses picked out of the thin air by the secretary of the plaintiff in error were in some cases vacant lots, and at least in one case was the garage of the trial judge in this case.

After the warrants were drawn to these workers, as well as the warrants which were drawn to the fictitious persons, they were returned to the Election Commission office and the warrants which were drawn to actual persons were mailed out by the secretaries of the plaintiff in error. The warrants made out to the names which had been added to the list at the direction of the plaintiff in error were not mailed; they were held out at direction of the plaintiff in error. Plaintiff in error told the secretaries in his office to put these warrants in a brown envelope and put them in a filing cabinet. At the time they were filed away, none of them was endorsed and the testimony from the secretaries is that they never saw these warrants again. The warrants for the voting machine instructors were not returned to the commission office.

The proof shows from the chief officers at the various polling places in the county that at the close of the day they had all the persons who had worked in that particular election to sign their names on the particular payroll sheets and to put their addresses thereon. These officers in the various polling places were personally acquainted with the persons who had worked and could identify each of them, with the exception that every officer testified that he had not heard of, nor did the person work, whose name was added to the particular payroll sheet by the Election Commission's office. In other words, the names which were added in the Election Commission's office to the payroll sheets were of persons of whom the chief officer had never heard.

There were seven indictments returned against the plaintiff in error but he was only charged in one of these indictments with the crime of forgery, and that was on a warrant payable to Frank P. Nicholson. The chief election official for Ward 34 testified that this Frank P. Nicholson, whose name was on the payroll sheet for that particular ward and precinct at the direction of plaintiff in error, did not work in the election and that the name was not on the list...