Rafferty v. State

• Decision Date: 04 June 1891
• Citation: 16 S.W. 728,91 Tenn. 655
• Parties: RAFFERTY v. STATE.
• Court: Tennessee Supreme Court

16 S.W. 728

91 Tenn. 655

RAFFERTY v. STATE.

Supreme Court of Tennessee.

June 4, 1891

Error to criminal court, Shelby county; J. J. DUBOSE, Judge.

G. P M. Turner and P. M. Winters, for plaintiff in error.

The Attorney General, for the State.

CALDWELL J.

Mrs Belle Rafferty, the plaintiff in error, is under sentence of two years' imprisonment in the penitentiary for a certain alleged attempt to obtain money under false and fraudulent pretenses. Several reasons have been assigned for reversal.

First. It is urged in behalf of the prisoner that no such offense as a mere attempt to obtain money under false and fraudulent pretenses is known to our law, and that, if there be such an offense, it is at most only a misdemeanor and not a felony. All violations of law punishable by imprisonment in the penitentiary, or by the infliction of the death penalty, are felonies; and all violations of law punishable by fine or imprisonment in the county jail are misdemeanors. Mill. & V. Code, § 6051. Every false and fraudulent pretense whereby one person obtains the money, or other personal property of another is punishable by imprisonment in the penitentiary, (Id. §§ 5468-5472,) and is therefore a felony. An attempt to commit any felony is punishable by imprisonment in the penitentiary or by fine and imprisonment in the county jail, at the election of the jury, unless the punishment be otherwise prescribed by law. Id. § 5379. The obtaining of money or other personal property by false and fraudulent pretenses being a felony, and the punishment for an attempt to commit that offense not being otherwise prescribed, (as it is not,) it follows that such attempt is punishable by imprisonment in the penitentiary, and is therefore a felony, and not a misdemeanor. The fact that the punishment for the attempt is in the alternative, either by imprisonment in the penitentiary or by fine and imprisonment in the county jail, does not make it any less an offense punishable by imprisonment in the penitentiary, or take from it the characteristic of a felony.

It is not necessary that the attempts contemplated by section 5379 of the Code should be coupled with a personal assault. It is sufficient to constitute the offense if the offender either assault another with an intent to commit, or otherwise attempt to commit, any felony. The language of the statute is as follows: "If any person assault another with intent to commit, or otherwise attempt to commit, any felony or crime punishable by imprisonment in the penitentiary, where the punishment is not otherwise prescribed, he shall, on conviction, be punished by imprisonment in the penitentiary not exceeding five years, or by imprisonment in the county jail not more than one year, and by fine not exceeding five hundred dollars, at the discretion of the jury." Code, § 5379. In State v. Jones, ^[1] and in Nicholson v. State, 9 Baxt. 258, this court held (in accordance with the present contention of counsel for plaintiff in error) that the foregoing statute contemplated only such offenses as were coupled with an assault on the person, and did not include a simple attempt to commit the crime of larceny. The former of those cases was cited and approved by the court in Marks v. Borum, 1 Baxt. 94, and in State v. Montgomery, 7 Baxt. 161; but in De Lacy v. State, 8 Baxt. 402, a contrary construction was suggested as the proper one to be given to the statute. All of these cases were reviewed in Hayes v. State, 15 Lea, 66, 67, the construction suggested in De Lacy's Case being approved and applied, and the earlier construction being disapproved and the case of State v. Jones overruled expressly; Special Judge S. F. WILSON delivering the opinion of the court. Hayes v. State was approved and followed in the late case of Clark v. State, 86 Tenn 511, 8 S.W. 145, wherein it was decided that one who feloniously opened the cash-drawer of another, believing it to contain money or other valuables, and intending to steal the same, was guilty of an attempt to commit larceny, and punishable as for a felony, though the drawer proved to be entirely empty.

Secondly. Prior to the commencement of this prosecution, Mrs. Rafferty in person procured a policy of insurance against loss by fire from an agent of the London & Lancashire Fire Insurance Company covering her household furniture, wearing apparel, jewelry, books, etc., to the amount of $1,250, said to be contained in a certain frame building in the city of Memphis, occupied by her as a family residence. Seventeen days after the issuance of the policy, and during its life, the building was totally destroyed by fire. Promptly thereafter she personally gave written notice to the agent of the insurance company, and filed itemized proofs of loss, verified by her affidavit, as required by the rules of the company, wherein she claimed that she had lost by the fire substantially all the property covered by the policy, to the value of about $1,900; and thereupon she demanded of the company payment of $1,250, the full amount covered by the policy. In response to the notification of the company, she also appeared before an insurance examiner, and deposed that she owned the property set out in her proofs of loss; that it was contained in the building covered by the policy, and destroyed by the fire. Having complied with all the requirements of the policy, and taken all formal steps necessary to entitle her to the full sum of $1,250, if the loss and her claim of value were bona fide, and the company still refusing to settle or make payment, she filed her bill in the chancery court, three months and a half after the occurrence of the fire, against the insurance company, to compel it to indemnify her according to its undertaking in the policy. Soon after the filing of that bill, which is still pending, this prosecution was begun.

It is charged in the indictment, in several distinct counts, and in as many different forms of expression, in substance as follows: That Mrs. Belle Rafferty, with intent to defraud said insurance company, falsely and feloniously prepared and presented to it formal proofs of loss, enumerating therein various articles of wearing apparel and other personal property covered by said policy, which articles she falsely fraudulently, and feloniously pretended and represented had been destroyed by said fire; that she then and there falsely and fraudulently, with intent to defraud said insurance company, claimed that she was entitled to be paid for said property so...