Cole v. State
| Decision Date | 08 April 1916 |
| Citation | 185 S.W. 691,134 Tenn. 645 |
| Parties | COLE v. STATE. |
| Court | Tennessee Supreme Court |
Error to Circuit Court, Wayne County; W. B. Turner, Judge.
J. E Cole was convicted of embezzlement as a public officer, and he appeals and assigns errors. Affirmed.
Frank Boyd, of Waynesboro, and W. C. Cherry, of Nashville, for plaintiff in error.
W. H Swiggart, Jr., Asst. Atty. Gen., for the State.
Plaintiff in error was convicted of the crime of embezzlement as a public officer, under the provisions of Code (Shannon) § 6574, and has appealed and assigned errors.
One of these assignments is that, since the record shows that the sureties on the official bond of Cole as county trustee paid the amount found to have been embezzled between the date of the indictment and the date of the trial in the court below a conviction could not properly be had under the provision of section 6575 of Shannon's Compilation. That section which was a part of the original act making embezzlement by public officers a crime, reads as follows:
"If such officer or person shall account for and pay over, according to law, all money, property, or other effects by him collected or received, he shall not be within the provisions of the preceding section."
This section for many years has been construed to provide that, if restitution were made by the embezzler of public funds, a conviction was thereby precluded. The two Code sections in relation to embezzlement were drawn from Acts 1839-40, c. 82, and the provision for settlement by accounting for all money received was made a proviso of the preceding section, which prescribed the crime to be a felony. As applied to public officers, whose misuse or misapplication of public money or effects was alone being dealt with in the original act, we think this construction warranted. The proviso, we may assume, grew out of the distressed condition of the commonwealth following the panic of 1837, and looked to the condoning of the offense of a public official who might make a restoration to the public treasury of funds that had been embezzled.
It has ever since remained on the statute books, though it appears to be the only affirmative statutory provision for defense, because of settlement, in all of the states of the Union. California and some of the other states have statutes providing that:
"The fact that the accused intended to restore the property embezzled, is no ground...
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Whisnant v. State
...company" in the sense of our statutes, such descriptive words are without effect. Embezzlement is not an offense at common law. Cole v. State, supra. Neither is the making of false entries by an officer, or employee on the books of his principal, so far as we know, an offense at common law.......
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State v. Matthews
...embezzled funds. To do so would be to exercise a legislative power that this court, in our opinion, does not possess. In Cole v. State, 134 Tenn. 645, 185 S.W. 691, court expressly recognized that the proviso contained in section 6575 applies only to an embezzler of public funds, for, after......