Budd v. State

• Decision Date: 31 December 1842
• Citation: Budd v. State, 22 Tenn. 483 (Tenn. 1842)
• Parties: BUDD v. THE STATE.
• Court: Tennessee Supreme Court

22 Tenn. 483

BUDD

v.THE STATE.

Supreme Court of Tennessee.

December, 1842.

The Union Bank was incorporated in 1832.It was put in operation, and Thomas L. Budd was employed as a clerk in the bank from July, 1832, to March, 1841.During a portion of this time he was employed in posting the individual ledger, a book in which the accounts of depositors were kept.He was required to write out and balance the bank-books of customers monthly, and to furnish the cashier with a balance sheet at the end of each quarter, exhibiting therein a true statement of the indebtedness of the bank to depositors, and the indebtedness of depositors to the bank by over-draft.One H. A. Cargill, a customer of the bank, drew from the bank, by check, the sum of $1,608.09 more than he had deposited, and Budd, the clerk, on the 30th June, 1838, by a false entry of a credit to Cargill of $1,608.09, balanced his account.

He was indicted in the circuit court of Davidson county, at the May term thereof, 1841, for making a false entry with a view to defraud the bank.Upon the establishment of the criminal court, the case was transferred to that court.The defendant pleaded not guilty, and the case was submitted to a jury, Turner, judge, presiding, at the March term, 1842.

The judge charged the jury as follows:

“This is a prosecution commenced by the State of Tennessee, against the defendant, for making a false entry as in the indictment alleged.In order to come to a proper and just conclusion between the State and the defendant, you will enquire, 1st, whether there was in existence any such institution as the Union Bank of Tennessee, on the 30th day of June, 1838, the day upon which the alleged false entry, in the indictment, purports to have been made.For proof of this point of the charge in the indictment, you will look to the act of incorporation and charter of the bank, which have been read to you, and will be by the jury regarded as legal testimony.

Should you find from the testimony in the case, that there was such an institution as alleged in the indictment, you will then proceed to enquire, next, if the defendant, Thomas L. Budd, was a clerk in said bank, and employed by the same as clerk of the individual ledger; and to ascertain the truth of this allegation, you will again recur to the testimony, and if it be of that character that will convince you that the fact was so (for you are to judge solely of the testimony in the cause), you will then next proceed to enquire whether the defendant did on the 30th day of June, 1838, fraudulently and feloniously make a false entry in the account of Henry A. Cargill, in said book called the individual ledger, as alleged in the indictment.When you come to consider this part of the indictment, which is the gist of the offence, you will determine, 1st, whether there was an entry made in said book, as alleged in the indictment.For the proof of this fact you will again recur to the testimony.You have inspected the book, you have heard the testimony, and you will determine from the testimony, all taken together, how this fact is.If you shall find from the testimony that the defendant made in the book an entry in figures of 1608.09, that, in legal contemplation, would be entry of those figures on the book.If you should find this fact as alleged in the indictment, that is, that an entry was made you will next proceed to enquire whether the entry was made falsely and fraudulently.Was it made falsely? was it false? what is meant by this in legal contemplation?If in truth, in fact, the said Cargill had made no deposit of the sum specified in the indictment, and the entry was made on the book, showing that he had made a deposit, this in legal contemplation would be a false entry, provided it was done with the intention to defraud the bank.This is not a question of law, but a question of fact, to be by you determined from the whole testimony in the cause.With the intent to defraud the bank: this involves the consideration of the motives of the defendant.If the entry was made by mistake, or if the entry is a proper and correct entry so far as it goes, and there was a mere unintentional omission to complete it, it could not then be said to be done with the intention to defraud the bank; but if, on the contrary, there is in the entry itself, or in the testimony all taken together, that which shows that the defendant made entry with the intent to defraud the bank, then the offence would be complete, and the defendant would be guilty as charged in the indictment.

It is further proper that the court should declare to you its opinion upon the 22d section of the statute, it being the section under which this indictment is framed, and this proceeding is had.It is insisted that the same is unconstitutional and void.Let us see how this is; because, if the statute is unconstitutional, it is inoperative in law and the prosecution would be at an end.It is contended by the counsel for the prisoner, that it is in contravention of that section of our Constitution, which says that no man shall be disseized or imprisoned, etc., but by the judgment of his peers or the law of the land.Whenever the legislature passes a law, the presumption is in favor of the power, nor are we to disregard the law upon a mere doubt.What is the meaning of the words “the law of the land” in our Constitution?It means a general and public law, operating upon every individual in the community equally.Now it is admitted that the Legislature may pass laws affecting a certain class or character, and they would not be in violation of the Constitution.This the court considers to be a law of that description; then the law enacts that if any cashier, agent, servant, or any other officer of the corporation, shall do particular things that are by the statute forbidden, then they shall be punished in the manner prescribed by the statute.This is a general law, because it embraces all of a certain class or character; it embraces all cashiers, agents, servants, or other officers; and there is nothing to prevent any citizen or person from exercising any of said offices or stations in the bank.It is not a partial law within the meaning of the constitution, for the same reason that it embraces a class of persons and covers all that may act in the character pointed out by the statute.Wherefore the court will charge you that the law does not conflict with that section of the Constitution which says that no freeman shall be taken, or imprisoned, or disseized of his freehold liberties or privileges, or outlawed or exiled or in any way deprived of his property or liberty, but by the judgment of his peers or the law of the land, but that the same is in conformity thereto; nor is it consistent with the 7th section and 11th article of our Constitution, which says that the Legislature shall have no power to suspend any general law of the land for the benefit of any particular individual, nor to pass any law for the benefit of individuals, inconsistent with the general laws of the land, granting to individuals rights, privileges, immunities or exemptions, other than such as may be by the same law extended to any member of the community, who may be able to bring himself within the provisions of the law; provided, always, the Legislature shall have power to grant such charters of incorporation as they may deem expedient for the public good.The court can not see that any general law of the land is suspended by the 22d section of the statute, nor can the court see that it is inconsistent with any general law of the land.It is said there is no law making this an offence in the Bank of Tennessee.This may be true, yet it does not follow as a legal consequence therefrom, that the Legislature has no power to say that persons of a particular class or character, exercising certain duties, in a certain bank, shall be punished for the commission of certain offences.The Union Bank is a public institution.What is there in the Constitution to prevent the Legislature from passing a law, saying that all persons exercising certain vocations in a public institution, for certain misfeasances or non-feasances, shall be punished in a particular way or manner?It is a law operating upon every member of the community, for the reason before stated, that every member of the community could bring himself within the operation of the law, by exercising in the bank any of the offices or vocations mentioned in the statute.Therefore the court will charge you further, that the 22d section of the statute, the same being the statute under which this prosecution is had, is constitutional and valid, and is to be by you regarded as the law of the land.A further objection is made to the indictment; it is proper that the...