Pappas v. State

• Decision Date: 09 August 1916
• Citation: 188 S.W. 52,135 Tenn. 499
• Parties: PAPPAS v. STATE.
• Court: Tennessee Supreme Court

188 S.W. 52

135 Tenn. 499

PAPPAS v. STATE.

Supreme Court of Tennessee.

August 9, 1916

Appeal from Criminal Court, Shelby County; Jesse Edgington, Judge.

Peter Pappas was convicted of an offense, and he appeals and assigns errors. Affirmed, with recommendation for pardon.

Friedman & Rosenstein, of Memphis, for appellant.

Wm. H Swiggart, Jr., Asst. Atty. Gen., for the State.

GHOLSON Special Judge.

The plaintiff in error, hereinafter called the defendant, was convicted of removing beyond the limits of the state of Tennessee personal property, the title to which had been retained in another at the time of his purchase thereof without the consent of the seller of said personal property in writing. He has appealed and assigned errors.

It is shown that the property described in the indictment was purchased by the defendant by a written contract of conditional sale, which expressly prohibited the defendant from removing the property from the state, without the written consent of the seller, and that notwithstanding the statute, and notwithstanding the contract, the defendant did carry the property to the state of Arkansas, where it was recovered and brought back by the agents of the seller. The defendant testified that he was a Greek, could read and understand but little English, and that he did not know that he had no right to carry the property to Arkansas. The reason given by him for going, and carrying said property out of the state, was that he could do no business in Memphis, and he claimed that it was his purpose to remit from Arkansas, and meet the unpaid installments on the property purchased by him as they fell due. The property was recovered before any default in payment had been made, the seller having learned of the defendant's departure from the state before another payment was due. Upon recovery of the property by the seller, it was not sold as required by the conditional sales law, and therefore, he has no further debt against the defendant.

It is contended by the learned counsel for the defendant that the trial judge was in error in instructing the jury that if the defendant bought the property described in the indictment under a conditional bill of sale, and left this state and went to Arkansas with the property, without the written consent of the seller, he would be guilty as charged in the indictment. The further contention is made that the trial judge was in error in refusing a request by the defendant that the jury must find that the defendant removed the property from this state with the intent to defraud the seller, and that if they should have a reasonable doubt of the existence of fraudulent intention on the part of the defendant in removing the property to Arkansas, the jury must acquit him.

The first section of chapter 557 of the Acts of 1909, under which defendant was convicted, is as follows:

"Sec 1. Be it enacted by the General Assembly of the state of Tennessee, that it shall be unlawful for any person to remove beyond the limits of * * * Tennessee any personal property, the title to which has been retained at the time of the sale thereof, unless the consent of the seller of such article be obtained in writing prior to the time that such removal of such article is made beyond the limits of the state of Tennessee. Any person violating this section shall be deemed guilty of a felony, and, upon conviction thereof, shall be imprisoned for not less than one year nor more than five years, and fined not less than two hundred and fifty dollars ($250) nor more than five hundred dollars ($500)."

There is no evidence in the record showing that said property was removed from this state with the intent upon the part of the defendant to defraud the seller, and the question is squarely presented whether it was necessary for the state to show such fraudulent intent upon the part of the defendant.

The Legislature may enact laws for the mere violation of which, irrespective of the criminal intent, penalties are attached; as, for selling liquor to minors, selling adulterated food and drugs, allowing minors to frequent saloons, changing and obstructing public roads, maintaining a nuisance, and disposing of mortgaged property. 8 Am. & Eng. Enc. Law (2d Ed.) 291, and authorities cited.

"As a general rule where an act is prohibited, and made punishable by statute, the statute is to be construed in the light of the common law, and the existence of a criminal intent is essential. The Legislature, however, may forbid the doing of an act and make its commission criminal without regard to the intent of the doer, and if such an intention appears, the court must give it effect, although the intention may have been innocent. Whether or not in the given case a statute is to be so construed is to be determined by the court, by considering the subject-matter of the prohibition as well as the language of the statute, and thus ascertaining the intention of the Legislature." 12 Cyc. 148.

Among other authorities there cited are Debardelaben v. State, 99 Tenn. 649, 42 S.W. 684, and Duncan v. State, 7 Hump. 148.

It is a general rule of construction that when a statute makes criminal an act not malum in se, or infamous, without requiring the act to be knowingly or willfully done, a criminal or fraudulent intent is not an element of the offense, and need not be proved. Ruling Case Law, vol. 8, title, Criminal Law,§ 12; Halsted v. State, 41 N. J. Law, 552, 32 Am. Rep. 247; Haggerty v. St. L. Ice Mfg. Co., 143 Mo. 238, 44 S.W. 1114, 40 L. R. A. 151, 65 Am. St. Rep. 647; State v. Foster, 22 R.I. 163, 46 A. 833, 50 L. R. A. 339; note, vol. 11 L. R. A. 807.

The rule and the reason thereof is well stated in Ruling Case Law, supra, as follows:

" Guilty Intent as Element of Statutory Crime. The maxim, 'Actus non facit reum, nisi mens sit rea,' does not always

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