Foute v. State

• Decision Date: 31 December 1885
• Citation: 83 Tenn. 712
• Parties: JOE D. FOUTE v. THE STATE.
• Court: Tennessee Supreme Court

83 Tenn. 712

JOE D. FOUTE

v.THE STATE.

Supreme Court of Tennessee.

December Term, 1885.

FROM DAVIDSON.

Appeal in error from the Criminal Court of Davidson County. MATT. W. ALLEN, J.

E. H. EAST, LYTTON TAYLOR and DAVID R. NELSON for Foute.

Attorney-General LEA and HEAD & CHAMPION for the State.

DEADERICK, C. J., delivered the opinion of the court.

Defendant, Foute, was convicted in the criminal court of Davidson county, on an indictment containing two counts, one for obtaining money by false pretenses, and the second for passing forged paper.

The facts constituting the false pretense, as charged, in substance, are that defendant Foute was sheriff and jailer in Loudon county, and enclosed in a letter to P. P. Pickard, comptroller, accounts for jail fees claimed to be due him, in State cases for the months of May, June, July and August, 1884; that the accounts were false and fraudulent, and upon his representations, the accounts being properly certified on their face when received by the comptroller, he issued his warrant upon the treasurer, which was paid by the treasurer when presented; that the claims set up were false and fraudulent, and were concocted to defraud the State of Tennessee.

The second count charges that defendant unlawfully, feloniously and fraudulently did pass and transfer a certain forged report and jail bill, which is set out, and is the same as that for the month of May, which appears on its face to have been approved by the judge and attorney-general, and sworn to by defendant before the circuit court clerk, intending to defraud the State, well knowing the said report and jail bill to be forged, etc.

It satisfactorily appears from the evidence, that for each of the four months mentioned in the indictment, the defendant made out his account correctly and had it approved by the presiding judge, and attorney-general. These officers testified that the bills exhibited on the trial were approved by them, and then each had from six to eight or ten names of prisoners, and now have thirty to forty names, which were not on them when approved.

These names were all in the hand-writing of defendant. And the circuit court clerk, Cassedy, stated that he swore defendant to several papers, he only exposing that part of the paper containing his, defendant's oath, and the clerk's certificate, his name appearing on bills.

So that, when received by the comptroller, they appeared to be in conformity to the requirements of section 6309 of the new Code, and the warrant was issued and sent by mail to defendant at Loudon, sent by him to the treasurer at Nashville, and paid by check on Bank of Knoxville, and the money received there by defendant, so that there can be no doubt defendant received a large amount of money from the treasury to which he was not entitled, by means of the fraudulent alteration of said bills after they were officially approved.

In the court below the defendant moved to quash the indictment because it contained a charge of two distinct felonies of different degrees. This motion was overruled, and defendant then requested the court to require the attorney-general to elect upon which of the two counts he would put defendant on trial. This the court also refused to do, and this, it is insisted, is error.

Both of these questions are settled in a recent decision of this court, in which it is said: “It has long been settled in this State, in accord with authority, that different offenses, punished by different degrees of severity, differing only in degree, and belonging to the same class of crimes, may be united, and it is not error for the court below to refuse to quash for this reason, or to refuse to compel the prosecutor to elect on which of the charges he would proceed: 4 Lea, 176, citing 8 Hum., 69;10 Hum., 11; and this is especially so where the offense is the same, and the several counts are inserted to meet the uncertainty of the evidence: 7 Cold., 77;4 Hum., 194;3 Lea, 559.”

There was, therefore, no error in the refusal of the court to compel election, or to quash the indictment.

It is next insisted that the offense, if committed at all, was committed in Loudon, not in Davidson county. The false pretense was contained in the letter and the accompanying bills transmitted to, and received in Nashville, and so as to the passing of the forged paper. Both counts are founded upon, substantially, the same facts.

And this being so, and it appearing that the judge had distinctly stated in his charge that upon the first count they could not punish beyond ten years, and on the second they might fix the punishment from three to fifteen years-- the verdict being for thirteen years--it is thus seen, although the verdict was general, it is sustained by, and was in fact rendered upon, the second count.

It is insisted that the first count is defective, not in form, but in charging that certain facts alleged, made the defendant guilty of “false pretenses” under our statute.

It is insisted that the facts charged in the first count do not constitute a false pretense, in its legal sense. Passing counterfeit money for property, was held not to be a false pretense, but an offense of higher grade than that of obtaining money by false pretenses, and not punishable as a false pretense, because it had been long previously declared a distinct, substantive felony, and differently punished: 1 Cold., 172;2 Head, 231.

The same reasoning would apply to forgery, as it is an older felony than that made by the act of 1842, punishable with greater severity. “To hold otherwise,” says the court, in the case in 1 Cold., “would involve the law in confusion,” punishing different persons for precisely the same criminal acts differently, as the prosecution might be conducted under the one statute or the other.

But if the facts averred did constitute the offense charged, there would be, of course, no ground of objection, the count being good in form. If they did not constitute such offense, the count would be defective or bad in law. And as it was founded on the same facts...