State v. Abernathy

• Decision Date: 16 February 1926
• Docket Number: 1.
• Parties: STATE v. ABERNATHY.
• Court: Tennessee Supreme Court

284 S.W. 361

153 Tenn. 441

STATE v. ABERNATHY.

No. 1.

Supreme Court of Tennessee.

February 16, 1926

Appeal from Criminal Court, Henry County; Thomas E. Harwood, Judge.

C. G Abernathy was convicted of appropriating personalty under his control as an officer of a corporation to his own use in breach of trust, the verdict was set aside and a new trial granted, and from an order sustaining his plea of autrefois acquit, quashing the indictment and discharging him, the State appeals. Affirmed.

W. H Swiggart, Jr., of Nashville, for the State.

Dudely Porter, of Paris, J. S. Daniel, of Clarksville, and James Van Dyke, of Paris, for appellee.

McKINNEY J.

The defendant was tried at the July, 1925, term of court upon an indictment containing three counts as follows:

"The grand jurors of the state of Tennessee, elected, impaneled sworn, and charged to inquire in and for the body of the county of Henry, in the state aforesaid, upon their oath present that C. G. Abernathy, late of the said county, laborer, heretofore, to wit, on the ______ day of January, A. D., 1924, in the county of Henry aforesaid, then and there unlawfully, feloniously, fraudulently, knowingly, and falsely did make in and upon the check book stub of the Paris Hardware Company, a corporation duly organized and existing under the laws of Tennessee, said book being the property and records of said corporation, the false entry hereinafter set out, the said C. G. Abernathy being then and there not an apprentice, over 18 years of age, and being at the time the secretary, treasurer, and general manager of said Paris Hardware Company.

Said entry is in the following words and figures, to wit:

No. 1004. $79.10

1/8--1924

To C. E. Hastings, Pres.

For Int. Dollars Cents

Balance brought forward ........... 587 66

Amount of this check ............... 79 10

------------ -----

Balance carried forward ........... 508 56

By which said entry it was made to appear that said amount of $79.10 was paid for an item of interest due by said Paris Hardware Company to C. E. Hastings, president, when as a matter of fact the corresponding check, No. 1004, detached from said stub and issued by said C. G. Abernathy, and drawn upon the bank account of said Paris Hardware Company, was for the payment of an individual note of the said C. G. Abernathy, and was so given by him to C. E. Hastings, president of the First Trust & Savings Bank upon which same was drawn, and was by him, the said C. G. Abernathy, so used and appropriated for the payment of his individual note due said bank.

Same when so made by the said C. G. Abernathy was false, and was well known to be so by him at the time the same was made by him upon said check book stub. The same was done by him for the unlawful, fraudulent, and felonious purpose and intent of defrauding said Paris Hardware Company, and to appropriate to his own use the sum of $79.10, the property of said Paris Hardware Company.

Second Count.

And the grand jurors aforesaid, upon their oaths aforesaid, present further that on the date set forth in the first count of this indictment, and at the exact time and place contained and referred to in said first count, in said county and state aforesaid, the said C. G. Abernathy, being then and there not an apprentice, over 18 years of age, and being at the time the secretary, treasurer, and general manager of the Paris Hardware Company, a corporation organized and existing under the laws of the state of Tennessee, with its principal place of business in said city, Paris, Henry county, Tenn., did unlawfully, feloniously, fraudulently, willfully and knowingly embezzle and fraudulently convert to his own use the sum of $79.10, the property of the Paris Hardware Company, which had come to his possession and was under his care by virtue of his employment with said Paris Hardware Company, having deposited said amount in the First Trust & Savings Bank of Paris, Tenn., in the name of and to the credit of said Paris Hardware Company, and thereafter on the date aforesaid did remove same from said bank by means of a check drawn by him upon said account by virtue of his employment, and did embezzle and fraudulently convert same to his own use, with the intent to and did defraud the said Paris Hardware Company thereof.

Third Count.

And the grand jurors aforesaid, upon their oaths aforesaid, present further that on the day and date aforesaid, and in the county of Henry, state of Tennessee, aforesaid, the said C. G Abernathy, being then and there the secretary, treasurer, and general manager of the Paris Hardware Company, a corporation of Tennessee, organized and existing as such under the laws of said state, did fraudulently, feloniously, and willfully appropriate the personal property, goods, and chattels and money to the amount of $79.10 of the Paris Hardware Company aforesaid, which had come under his control by virtue of his position as secretary, treasurer, and general manager of said company, to his own use, and did willfully, unlawfully, fraudulently, and feloniously commit a fraudulent breach of trust thereby, and in the following way and manner, to wit: The said C. G. Abernathy, being then and there the secretary, treasurer and general manager of said Paris Hardware Company, Incorporated, had under and by virtue of his employment with said Paris Hardware Company the handling and custody of the funds, cash, daily sales in said Paris Hardware Company's store in Paris, Henry county, Tenn., and did deposit sundry amounts of money arising from the sales of merchandise in said store in the First Trust & Savings Bank in Paris, Tenn., and, having so done, the said C. G. Abernathy did issue the check referred to in the first count of the indictment, No. 1004, upon said bank, drawn upon the funds of said Paris Hardware Company, by him as manager thereof, and procured said amount from said bank, and appropriated same to his own...