Hunter v. State

• Decision Date: 08 December 1928
• Parties: HUNTER v. STATE.
• Court: Tennessee Supreme Court

Page 361

12 S.W.2d 361

HUNTER v. STATE.

Supreme Court of Tennessee.

December 8, 1928.

Appeal from Criminal Court, Hamilton County; Chas. W. Lusk, Judge.

T. S. Hunter was convicted of embezzlement, and he appeals. Affirmed.

Carlyle S. Littleton, of Chattanooga, for plaintiff in error.

L. D. Smith, Atty. Gen., for defendant in error.

CHAMBLISS, J.

This appeal is from a conviction of embezzlement by a public officer, under section 6574, Shan. Code. Hunter was trustee of Hamilton county, and he failed to account for $31,239.48 of public funds. His defense is and was that he acted, in appropriating to his own use these funds, under the belief, supported by the advice of counsel, that chapter 101 of the Acts of 1921, passed prior to his election, and in effect during his term, known as the Salary Law, was unconstitutional, leaving in force the former law which vested all fees of the office in the trustee. The insistence for Hunter is that criminal intent is an essential element of the crime under the statute, that the failure and refusal to pay over these public funds creates a rebuttable, as distinguished from a conclusive, presumption of criminal intent, and that therefore testimony tending to show the good-faith belief of the defendant, based on the advice of counsel, that the act of 1921 was unconstitutional, was competent as tending to rebut criminal intent. Complaint is particularly directed to the refusal of the trial judge to admit such testimony, and of that portion of the charge which expressly excluded from the consideration of the jury this theory of the defense.

Indeed, the case here turns upon the challenged correctness of the following excerpt from the charge:

"Now, gentlemen of the jury, lest you be misled by some things that have been said by counsel at the bar and some of the testimony that you may have heard, and, while ruled out by the Court, still might serve to confuse you, I charge you as a matter of law that it would be no defense for the defendant to say that he believed in good faith that the law under which he was acting was unconstitutional, unless he relied upon an express decision of the highest court in the State; nor would it avail him that he acted in good faith in violating the law and that he acted upon advice of counsel."

In effect, the sole question for consideration is whether or not belief in the unconstitutionality of an act of the Legislature, supported by the advice of counsel, is competent to rebut such proof of criminal intent, if any, as is essential under the embezzlement statute to a conviction of a public officer who has converted and appropriated public funds to his personal use.

While recognizing that the embezzlement statute applicable to public officers contains no express language declaring a criminal intent essential, and significantly omits the word "fraudulently," which is employed in the section immediately following relating to embezzlement from a private corporation (Shannon's Code, § 6576), learned and diligent counsel insist that, since the statute does not expressly or by fair construction negative the requirement of criminal intent, it is to be construed in the light of the common law which recognized such intent as essential. Language from the opinion in Pappas v. State, 135 Tenn. 502, 188 S. W. 52, is relied on, and other authorities.

Embezzlement is a statutory offense. It is clearly within the power of the Legislature to make it a crime to do a certain thing without reference to or requirement of proof of intent. An illustration is afforded by the case cited of Pappas v. State, supra. In that case, as said by counsel, the defendant admitted his intention to do the act denounced; that is, to remove the property which had been conditionally sold from the state, and this court held that allegation or proof of a criminal or fraudulent intent was unessential. So here the defendant has admitted his intention to do the act denounced; that is, appropriate to his own use public funds in his charge, and in this case, as in that, proof of criminal intent is unnecessary.

Counsel say that "here plaintiff in error sought to show that it was never his intention to commit the act denounced by the statute creating the crime, to wit: To convert the property of another as distinguished from his own property." The suggested distinction is not apparent. It rests on a misconception. It was clearly the intention of Hunter to commit the very act denounced; that is, to appropriate to his own use the public funds. Illustrations suggested of robbery or fire and the like are not in point. In such cases the accused custodians of the funds do not appropriate to their own use the funds either intentionally or otherwise. Such an explanation would be competent and would if shown operate to relieve the accused of guilt. This is all that can be deduced from the expressions relied on from State v. Leonard, 6 Cold. 309, and State v. Cameron, 50 Tenn. (3 Heisk.) 85. Such proof would go to disprove the act denounced, the misappropriation of the funds.

The distinction above noted between the language of the two Embezzlement Acts, passed in 1839-40 and 1843-44, respectively, is emphasized by the fact that in the Public Funds Act, first passed, express provision was made for relief of the defaulting officer, who may have brought himself under the act by inadvertence, or under circumstances beyond his control, without deliberate or guilty intention, upon the payment over of the funds. Since the act embodies no requirement of criminal intent, a way of escape is provided for him whose will and intent is not criminal. The Private Corporation Act contains no such saving provision, but, on the other hand, for the protection of the accused, expressly requires that it be shown that he fraudulently converted the funds. So that, conceding that proof of intent is required in prosecution for embezzlement under this statute, it appears that the intent required is an intent only to do the thing denounced in the statute; that is, appropriate to his own use the public funds. And, if it should be conceded as contended that a fraudulent intention is requisite, and that such intent is subject to rebuttal, we cannot subscribe to the proposition that such rebuttal can be competently evidenced and established by testimony that the accused, who, with full knowledge of the law and a clear understanding of its provisions respecting his rights in and to the funds, deliberately violated it, acted in the belief, however honestly entertained, and however supported by the opinion of counsel, that it was unconstitutional. Even the highest courts of the land recognize the solemnity and prima facie validity of legislative enactments, and hesitate always to pronounce them unconstitutional. Every presumption is indulged in favor of their validity. Certainly, no theory is to be favorably considered which recognizes in public officers the right to determine in their own interest that an act passed for their control is invalid. If those individuals affected by laws are to be conceded the right to disregard and nullify them whenever they believe them to be unconstitutional, or are so advised, anarchy would ensue. The drunken driver, for example, would proceed on his way and meet prosecution with the answer that he had no criminal intent, because he believed and was advised that the act was unconstitutional.

The following statement from 16 C. J. "Crim. Law," § 52, is supported by many decisions: "It is no defense for the accused to show that he believed in good faith that the law which he violated was unconstitutional, except where he has relied on the express decisions of the highest court in his State. Nor will it avail the accused that he acted in good faith under the advice of counsel." And 8 R. C. L. "Crim. Law," § 95, is to the same effect, reading: "The fact that a person honestly believes that he has a...