Johnson v. State

Decision Date03 August 1923
Citation253 S.W. 963,148 Tenn. 196
PartiesJOHNSON ET AL. v. STATE.
CourtTennessee Supreme Court

Error to Circuit Court, Chester County; N. R. Barham, Judge.

Kenneth Johnson, Kenneth Teuton, and Guy Young were convicted of larceny and receiving stolen property, and they bring error. Reversed and remanded, with directions.

Jno. W Robertson and Galbraith & Mitchell, all of Henderson, and E W. Ross and J. H. Ballew, both of Savannah, for plaintiffs in error.

W. H Swiggart, Asst. Atty. Gen., for the State.

McKINNEY J.

This is an appeal by the plaintiffs in error from a judgment rendered by the circuit court of Chester county, at its October term 1922, upon a conviction for larceny and receiving stolen property.

The indictment charges the plaintiffs in error with taking and stealing an automobile of the value of $1,500, the property of "Morgan Hitchcock Company, a corporation existing and authorized by virtue of the laws of Tennessee."

The second count of the indictment charges that the said automobile, the property of the same corporation, was unlawfully received and concealed by the plaintiffs in error, with intent to deprive the owner thereof.

The proof offered on the trial of the case by the state shows conclusively that the automobile in question was the property of Morgan Hitchcock Company, a corporation chartered and existing under the laws of the state of Indiana.

Among other assignments of error are the thirteenth and fourteenth, by which it is contended for the plaintiffs in error that the conviction is not sustained by the evidence on the ground that the indictment described the automobile stolen as the property of Morgan Hitchcock Company, a corporation existing and authorized by virtue of the laws of Tennessee, while the proof shows that the automobile was the property of a corporation of the same name chartered and existing under the laws of the state of Indiana.

The nineteenth assignment of error is that the trial judge erred in refusing to include in his charge the fourth special request tendered by the plaintiffs in error, to the effect that there could be no conviction because of the variance between the averments of the indictment and the proof as to the identity of the owner of the automobile, as set out in the thirteenth and fourteenth assignments of error.

It was wholly unnecessary that the indictment in this case should contain the averment that the corporation named as the owner of the automobile was existing by virtue of the laws of any state. It would have been sufficient if the indictment had simply described the owner as a corporation, and parol evidence of the existence of the Morgan Hitchcock Company as a de facto corporation would have satisfied such averment. State v. Missio, 105 Tenn. 218, 58 S.W. 216; Bond v. State, 129 Tenn. 75, 165 S.W. 229; Id. vol. 3, § 752.

It is, of course, not open to argument that a material variance in the name of the owner of the stolen property, in an indictment for larceny, is fatal. In Wharton, Criminal Pleading and Practice (9th Ed.) § 116, the author says:

"A variance or an omission in the name of the person aggrieved is much more serious than a mistake in the name or addition of the defendant, as the latter can only be taken advantage of by the plea in abatement, while the former will be ground for arresting the judgment when the error appears on the record, or for acquittal, when a variance arises on the trial."

The question to be determined in this case, however, is whether a variance exists between the averments of the indictment and the proof, and if a variance exists, such variance being concededly with reference to a matter of description, which was not a necessary matter of averment in the indictment, whether such a variance is fatal to the conviction.

The reasonable meaning of the averment that the corporation was one existing pursuant to the laws of the state of Tennessee is that the corporation had its existence or came into being pursuant to and by virtue of the laws of such state, which could only mean that it was chartered by virtue of the laws of Tennessee.

The fact of the variance cannot therefore be denied.

Although the description of the corporation as one existing by virtue of the laws of Tennessee was unnecessary, the fact of the existence of the corporation as an entity capable of owning the property was an essential fact necessary to be averred in the indictment. The description of the corporation as one having its existence by virtue of the laws of the state of Tennessee is therefore a description of the corporation, the existence of which was a necessary and essential fact to be proven in order to sustain the charge of larceny made in the indictment.

In order to successfully meet the contention of the plaintiffs in error that they are entitled to a new trial because of this variance, it would be necessary to show that the matter of description which was not proven as laid in the indictment can be regarded as surplusage and therefore disregarded.

What averments of an indictment may properly be disregarded and rejected as surplusage is the subject of a discussion by Wharton in his work on Criminal Evidence (10th Ed.) vol. 1, § 138, wherein he states the principle to...

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2 cases
  • State v. Ammons, No. M2006-00286-CCA-R3-CD (Tenn. Crim. App. 6/21/2007)
    • United States
    • Tennessee Court of Criminal Appeals
    • June 21, 2007
    ...as to this description constitutes a fatal defect." Id. (citing Cobb v. State, 201 Tenn. 676, 301 S.W.2d 370 (1957); Johnson v. State, 148 Tenn. 196, 253 S.W. 963 (1923)). In State v. Moss, 662 S.W.2d 590 (Tenn. 1984), our supreme court laid aside "the early common law rule that very strict......
  • Young v. State
    • United States
    • Tennessee Supreme Court
    • November 29, 1947
    ... ... undivided interest in the property. In the instant case the ... corporation and its stockholders are essentially different ... and not connected. A material variance in the name of the ... owner of stolen property in an indictment for larceny is ... fatal. Johnson v. State, 148 Tenn. 196, 253 S.W ...          The ... only other contention is that the trial court should have ... granted a new trial on account of an alleged variance between ... the owner of the building entered as averred in the ... indictment and the proof. The ownership of the ... ...

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