Chapple v. State

• Decision Date: 04 March 1911
• Parties: CHAPPLE et al. v. STATE.
• Court: Tennessee Supreme Court

135 S.W. 321

124 Tenn. 105

CHAPPLE et al. v. STATE.

Supreme Court of Tennessee.

March 4, 1911

Error to Circuit Court, Maury County; Sam Holding, Judge.

John Chapple and W. A. Dawson were convicted of crime, and they bring error. Reversed and remanded for new trial.

J. L Jones, for plaintiffs in error.

Assistant Attorney General Fraw, for the State.

NEIL J.

The plaintiffs in error were indicted in the circuit court of Maury county under the following indictment:

"State of Tennessee, Maury County. Circuit Court, November Term A. D. 1909. The grand jurors for the state of Tennessee, good and lawful men, duly elected, impaneled, sworn, and charged to inquire for the body of the county of Maury aforesaid, upon their oaths aforesaid present that John Chapple and W. A. Dawson, heretofore, on the ___ day of August, 1909, in the said county of Maury aforesaid, unlawfully, feloniously, and burglariously broke and entered the mill-house of W. B. Long in the nighttime, with intent then and there to commit a felony, to wit, a larceny, and then and there feloniously and unlawfully did steal, take, and carry away nine sacks of flour, worth one dollar each, the personal property of the said W. B. Long, with intent to deprive him of the value of the same, against the peace and dignity of the state.

"Second Count. And said grand jurors on their said oaths further present that on said day and said year, in said county, said defendants unlawfully and feloniously did receive said flour with intent to deprive the true owner thereof, and that the same had been feloniously taken and stolen from, and was the personal property of, the said W. B. Long, and that said defendants well knew the same to have been so obtained, against the peace and dignity of the state.

"J. B. Garner, Atty. Genl."

The plaintiffs in error were convicted, and have appealed to this court, and assigned errors.

One of the errors assigned is on the refusal of the trial judge to quash the second count in the indictment. It is said that that count does not charge that John Chapple and W. A. Dawson received the four knowing it to be stolen, but merely that "defendants" received flour, and that their names are not mentioned in this count at all, and at no other place are they called "defendants," and that the first count is not referred to.

This is an erroneous view. The two counts are framed together, and the whole signed by the Attorney General for the district. The first count mentions their names, and the use of the words "said defendants" in the second count clearly refers thereto; likewise the expression "said grand jurors"; also "said flour"; likewise "said W. B. Long," and the mention of the flour in both counts as the property of W. B. Long.

It is said that the verdict of the jury is a nullity. It reads as follows: "We, the jury, find the defendants guilty, and assess the punishment of defendant John Chapple at three years' hard labor in the state penitentiary, and the defendant W. A. Dawson at six months' hard labor in the county workhouse." The objection stated is that the verdict does not show of what the jury find the defendants guilty, nor does it state that the jury find them "guilty as charged."

In section 7190 of Shannon's Code, it is provided:

"A general verdict of guilty will be sustained if there is any one good count in the indictment sustained by proof, although the other counts may be fatally defective."

It has been held that where both counts are good, and there is no evidence to sustain one of the counts, a general verdict upon a correct charge will be applied to the count which is sustained by the evidence. Taylor v. State, 3 Heisk. 460. This ruling has been extended to a case where the charge was not correct on a count as to which there was no evidence. Parham v. State, 10 Lea, 498. The underlying reason is that the court can see that the merits have been reached without any real prejudice to the rights of the defendant. In a case, however, where the proof is fully set out in the bill of exceptions, if it be clear upon the facts that the verdict is not responsive to the valid count, the presumption would fail, and, upon such a conviction, the judgment should be arrested. Rice v. State, 3 Heisk. 215, 222. Counts for stealing and for receiving stolen goods are constantly united in the same indictment. Hall v. State, 3 Lea, 559; Hampton v. State, 8 Humph, 69, 47 Am. Dec. 599; Cash v. State, 10 Humph. 111; Ayrs v. State, 5 Cold. 26; Foute v. State, 15 Lea, 715; Davis v. State, 85 Tenn. 522, 526, 527, 3 S.W. 348; Lawless v. State, 4 Lea, 173, 176, 177. See, also, Kelly v. State, 7 Baxt. 84, and McTigue v. State, 4 Baxt. 313.

It is clear the jury intended to find John Chapple guilty under the first count, and W. A. Dawson under the second count, as there was evidence to convict John Chapple under the first count, and none against him under the second count, and evidence to convict W. A. Dawson under the second count, and none to convict him under the first count.

It is insisted that there was a variance between the indictment and the evidence. The variance is averred to consist in this, viz.: That the evidence showed that the house broken into belonged to a corporation bearing the name of Webster-Locke Milling Company. The only evidence upon this subject is contained in the testimony of C. C. Wells, the miller of the concern. He says that the Webster-Locke Milling Company was a corporation, and that it was operated and controlled by Horton, Mefford, and W. B. Long. Again he says in his testimony: "The property was the property of W. B. Long, the prosecutor, and his partners, Horton and Mefford, and they had it under control, and owned the flour in the mill." However, if it be conceded that there could be no conviction for housebreaking because of this variance, yet there could properly be a conviction under that part of the first count which charges a larceny.

Section 6540 of Shannon's Code provides: "Any person indicted for burglary may be convicted under either of the preceding sections of this article; and any person indicted under these sections, where another felony is included in the charge, may be convicted for such felony." The previous sections referred to are section 6535, which defines burglary, section 6536, which defines the offense of breaking into a mansion house by day with intent to commit a felony, and section 6539, which is an extension of the three preceding ones just referred to. The same rule is laid down in Pardue v. State, 4 Baxt. 10, and Cronan v. State, 113 Tenn. 539, 82 S.W. 477.

Although the charge is that the personal property stolen belonged to W. B. Long, and the evidence is that it belonged to W. B. Long and two other persons as his partners, this is not a variance in law. Lowry v. State, 113 Tenn. 220, 81 S.W. 373. There is a variance so far as concerns the charge in the first count upon the subject of house-breaking, which (Cronan v. State, supra) comes under the generic name of burglary.

"The common law requires, in an indictment for burglary, a precise averment of the names of each of the several owners of the building burglariously entered. In the case of partners, as in that of others previously mentioned, where the ownership is in more than one, the...