State v. O'Brien

• Decision Date: 10 November 1894
• Citation: 28 S.W. 311
• Parties: STATE v. O'BRIEN.
• Court: Tennessee Supreme Court

28 S.W. 311

STATE v. O'BRIEN.

Supreme Court of Tennessee.

November 10, 1894.

Appeal from circuit court, Hamilton county; John A. Moon, Judge.

M. J. O'Brien was indicted for embezzlement. A plea in abatement was sustained, and the state appeals. Reversed.

G. W. Pickle, Atty. Gen., for the State. W. J. Clift and Clift & Cantrell, for appellee.

BEARD, J.

The defendant was indicted for embezzlement. He was the supreme treasurer of the Supreme Council of the Catholic Knights of America, a corporation organized under the laws of Kentucky, but doing business in Tennessee. It is charged in the indictment that while acting in this official capacity he collected in Hamilton county, in this state, the sum of $75,000 for his principal, and that he had "unlawfully, fraudulently, and feloniously, and with intent to defraud and deprive the true owners thereof," appropriated and converted this sum to his own use. After a number of continuances the defendant presented a plea to this indictment, which is styled by him, and has the form of, a "plea in abatement." In this plea the defendant says the indictment ought not to be maintained because the Supreme Council of the Catholic Knights of America was a foreign corporation, and that it had not at any time filed in the office of secretary of state of Tennessee a copy of its charter, and caused an abstract of the same to be recorded in the office of the register of Hamilton county, as required by the act of the legislature passed March 21, 1891, and approved March 26, 1891,¹ and that, having failed of compliance with the requirements of that act, it was wrongfully carrying on business in this state, and could neither acquire, hold, collect, nor pay out money in this state, and therefore the defendant could not be liable for embezzling or appropriating the funds of this corporation. The attorney general moved the court to strike out this plea because, among other reasons, it presented no meritorious defense to the indictment. This motion was overruled by the trial judge, and, the state declining to take issue on the plea, it was sustained, and the defendant was discharged. From this judgment the state has appealed, and has assigned for error this action of the court below.

The indictment in this case rests on section 5475, Mill. & V. Code Tenn. It is unnecessary for us to analyze this section. It is enough to say that its terms are broad enough to include the employés of a foreign corporation; and the facts alleged in the indictment, being proven, would warrant a conviction, unless it be that the plea in hand offers a sufficient defense. The question then presented here is, is it a good plea? We have no hesitation in saying it is not. Conceding that this corporation (organized, as is avowed in the indictment, for benevolent purposes) is within the act of 1891 (and this we do not now determine), yet, if it should turn out in proof that the defendant, while acting as agent and employé of it, received money paid to him for his principal in the course of his employment, and then feloniously and fraudulently appropriated it to his own use, when indicted for the offense he cannot be permitted to defend himself from the criminal consequences of such wrongdoing upon the ground that his principal was carrying on its business in this state in violation of the terms of that act. Upon the plainest principles, having assumed to receive this money for his nonresident principal, he is concluded, both civilly and criminally, by this assumption. Whatever others might say about the right of this foreign corporation to come into this state to carry on its business and acquire property interests, without having first complied with the requirements of the act of 1891, at any rate the defendant's mouth is closed, when, as agent, he received the money of and for this corporation, and feloniously appropriated it to his own use. The wrongful act of the principal cannot be invoked as a protection against the still more wrongful act of the guilty agent. To him, under such circumstances, the rule of estoppel applies. On this subject the case of State v. Spalding, 24 Kan. 1, is very instructive. In that...