State v. Cameron

• Decision Date: 31 December 1871
• Citation: 50 Tenn. 78
• Parties: The State v. Cameron.
• Court: Tennessee Supreme Court

50 Tenn. 78

The State

v.Cameron.

Supreme Court of Tennessee.

December Term, 1871.

FROM WHITE.

In the Circuit Court. W. W. GOODPASTURE, J., presiding.

Attorney General Heiskell, for the State, insisted that as the Code 4706 requires some act of commission “use by loan, investment or otherwise, or a conversion, to constitute the offense of embezzlement, and the Acts of 1860, c. 131, and 1868, c. 79, s. 14, only require an omission to pay--the acquittal under the former act, did not disprove the omission. Embezzlement includes failure to pay, but failure to pay does not constitute embezzlement. Acquittal of a greater offense does not preclude a trial for the less, unless it be of that character which would admit of a verdict for the inferior on an indictment for the higher offense. Acquittal for murder does not bar an indictment for assault to kill. See 1 Whar. Am. Cr. L., sec. 560 to 565; Russ on Cr., 829, 830 to 835; R. v. Henderson, 2 Moody, 192.

S. H. Colms, (with whom was Nesmith) for defendant, insisted that the failure to pay over under this indictment, must be “willful.” That if the officer was robbed or had the money accidentally burned or destroyed, it would show that he did not refuse to pay willfully. So that the proof is the same in both cases.

The true test is, whether the evidence necessary to support the second indictment would have been sufficient to support a conviction on the first: Hite v. State, 9 Yer., 357, Ch. Cr. L., 453; Archb. Cr. Pl., 88; Roscoe, Cr. Ev., 77. Under the first indictment there must be proof that the defendant “used, loaned, invested or converted the revenue,” (and the indictment charges that he pretended he was robbed,) in order to convict.

Under the present, there must be proof of willful failure. The proof then must be the same under both, and proof of loss of the money by robbery or destruction, would be good defense to either. He cited The State v. Leonard, 6 Cold., 307, 310.

Mr. Attorney General, in reply: The argument for the defense is fallacious. An acquittal for murder can not bar a charge of assault. The proof to support the one will not support the other. It may be the same act, but if the party did not die within the year and a day, it could not be murder, and the acquittal could be no test of guilt of assault. It might as well be said that an acquittal for perjury would bar a charge of assault. The Court, in either case, can see that the issue is not the same, and no averment that it is the same can make it so. Of course a demurrer would meet it. If so, it is equally so in any case where the issue is not the same, as, murder and assault.

It may be that in murder the defendant proves that he was justified in the assault he made, yet if the party did not die, though the very facts were before the jury, they could not, nor could the fact that the jury passed on them, bar a charge of assault As the offenses are different, the one can not bar the other. That the very fact relied on in defense may have been before the jury and passed upon, and that they may have acquitted solely upon the ground of justification of the murder, can not affect the question. That the party could not possibly have been convicted of the assault on the indictment for murder, is conclusive that the acquittal is no bar. In the case at bar, the pretended robbery may have been negatived; the pretence may have been negatived; or there may have been a failure to prove the allegation. Yet, there might have been proof that the defendants kept the money marked as the money of the State, for months before. There would be a willful failure, but not embezzlement. The same facts may come in issue here as there, but to prove a different issue. In that case, a pretence of being robbed was the overt act of embezzlement on which the State relied. A failure to prove that pretence would be a failure of the indictment. Actual robbery would disprove the pretense. In this case, no proof of pretense of robbery is necessary, no disproof of it pertinent. If the defendant prove it here, he brings it to meet a different allegation and issue. Here to disprove the willful failure by showing an unwilling failure; there to disprove the very act of appropriation charged. Just as in the case of murder, the assault, if justified on the indictment for murder would not prevent a trial for the assault.

On a bad indictment, or an indictment misdescribing the offense in the name of the party whose property or person is affected, or in the character of the property, an acquittal is no bar, and the averment of identity in a plea can not supply the want. It must be legally identical, and legal identity can not exist between stealing a white horse and a bay, the horse of A and the mare of B. Nor can it exist as to two offenses requiring different degrees of proof. If the first had charged embezzlement by speculation or loaning the funds, would that be a bar to this? The State might fail in that, but it would not show that he was not guilty of this.

NELSON, J., delivered the opinion of the Court.

The indictment charges that the defendant “on the 8th day of January, A. D., 1870, in said county and State--(he, the said James H. Cameron, being a Tax Collector for the collection of State and County taxes, or revenue, due to the State aforesaid, from the county aforesaid, for the years A D., 1868, and 1869, and having collected, as such tax collector aforesaid, a large amount of taxes aforesaid, viz: the sum of $3,000, due the State aforesaid)--did, then and there, willfully fail and refuse to pay into the treasury of the State, the revenue which he had collected as aforesaid, viz: the sum of $3,000, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State.” To this indictment the defendant pleaded a former acquittal upon an indictment charging “that James H. Cameron, revenue collector for the county of White, having been duly elected, given bond and taken the oath, and having, in all respects, fully qualified, according to law, to collect the State and county revenue due to the State and county aforesaid, from said county for...