Hays v. State
| Decision Date | 19 July 1929 |
| Parties | HAYS v. STATE. |
| Court | Tennessee Supreme Court |
Rehearing Denied Aug. 19, 1929.
Appeal from Criminal Court, Shelby County; Phil Wallace, Special Judge.
W. A Hays was convicted of embezzlement, making false entries, and fraudulent breach of trust, and he appeals. Modified and affirmed.
R. R Bond, of Memphis, for appellant.
The Attorney General, for the State.
Under an indictment in five counts Hays was found guilty, after a lengthy trial, of embezzlement, making false entries, and fraudulent breach of trust. He appeals and says (1) that the evidence preponderates against the verdict, and (2) that the arguments of the Attorneys General were improper and prejudicial. The state insists that the charges of embezzlement and making false entries are fully sustained.
After a careful examination of this voluminous record, we have no doubt of the guilt of this plaintiff in error of both embezzlement and making false entries. He was in charge of the bookkeeping and accounting, with the title of cashier, of the Memphis branch of the American Insurance Company. He left Memphis suddenly on or about May 7, 1928, and was later apprehended at a point in Texas, where he was living under a false name, and occupying a room adjoining that of a Memphis woman, with whom he had been associating before leaving Memphis, and who left Memphis about the time he did, and returned about the time he was brought back by an officer some seven months later.
His statement made to the officer, his correspondence and the unusual manipulation of figures appearing in this record, show him to be a man of unusual shrewdness.
An audit of the books made after he left by independent auditors showed conclusively that more than $12,000, in the aggregate, of the remittances in small items sent in to the office from time to time by policyholders to liquidate deferred, or installment, note charges was never credited to these accounts in the proper note ledger, although the payments apparently went into the bank account of the company, and were credited on detail report sheets on which were kept individual records of each policy and the payments thereon, and with which the regular cash account of the office was made to tally. The result of this manipulation was to keep the books of the company always in balance, unless the note ledger was checked against them, and this appears not to have been done until Hays had left. His method apparently was to overdraw his personal account with the company, and then credit himself in the cash books, which he kept, with sums in repayment equal in amount to his withdrawals; and then balance against such forced credit entries by the use of premium checks previously received and entered on the daily sheets, but which he had caused to be withheld from the note ledger. He so manipulated the deposits in the bank as to destroy the possibility of identification of the several deposits.
The proof clearly sustains the charge that the credit item to himself of $175 was a false entry, made with fraudulent purpose. The deposit slips are convincing. It is also clear that he converted the proceeds of the check of $44.60 to his account, this being the only item which appears not to have been passed through the company's deposit account.
We deem it unnecessary to go into further details. The admirable brief of the Attorney General gives a fuller statement, and this we approve and adopt. It seems clear that plaintiff in error got from this company by his manipulations from $5,000 to $7,000 of its funds, probably much more, although the state does not appear to have been able to show clearly just how or when he abstracted the difference between the aggregate of the sum shown on his personal account and the aggregate of the shortage appearing on the note ledger. There is no preponderance against the verdict on the counts charging embezzlement and false entries. While it is possible that the conviction for fraudulent breach of trust might be sustained on the proof as to the single item of $4,460, above mentioned, the benefit of the doubt will be conceded to plaintiff in error as to this charge. The distinction between the statutes defining breach of trust and embezzlement is pointed out in State v. Abernathy, 153 Tenn. 441, 284 S.W. 361.
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...only to the personal testimony of the defendant himself and does not extend to apparently available testimony by others. Hays v. State, 159 Tenn. 388, 19 S.W.2d 313; Williams v. State, 164 Tenn. 562, at page 570, S.W.2d 482; Rowe v. State, 164 Tenn. 571, at page 579, 51 S.W.2d 505; Hutchins......
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