State v. Matthews

• Decision Date: 18 December 1920
• Citation: 226 S.W. 203,143 Tenn. 463
• Parties: STATE v. MATTHEWS.
• Court: Tennessee Supreme Court

226 S.W. 203

143 Tenn. 463

STATE v. MATTHEWS.

Supreme Court of Tennessee.

December 18, 1920

Appeal from Criminal Court, Knox County; T. A. R. Nelson, Judge.

E. C Matthews was prosecuted for embezzlement, and from judgment sustaining his plea of tender and payment filed to the indictment, and discharging him from further custody, the State appeals. Judgment reversed, and case remanded for further proceedings.

S. G Heiskell, of Knoxville, and Wm. H. Swiggart, Jr., Asst. Atty Gen., for the State.

Wright, Wright & Saxton, of Knoxville, for E. C. Matthews.

HALL J.

This is an appeal by the state from a judgment of the criminal court of Knox county, sustaining a plea "of tender and payment" filed by the defendant, E. C. Matthews, to an indictment returned against him by the grand jury of the criminal court of Knox county, charging him with embezzlement, and discharging the defendant from further custody under said indictment.

It is insisted by the state that the indictment contains four counts, the first and third charging that the defendant, as the agent of the Knoxville Credit Reporting Company, a corporation, by virtue of his employment, received into his possession certain money, the property of said corporation, which money the defendant unlawfully, fraudulently, and feloniously embezzled and converted to his own use, without the consent of the corporation; and the second and fourth counts charge the defendant with the larceny of the money referred to in the first and third counts.

To the indictment the defendant filed a plea, averring that on July 28, 1919, 13 days after the indictment had been returned in the criminal court, he had tendered to the Knoxville Credit Reporting Company the full amount of the money alleged to have been embezzled by him, with interest thereon, which money said company refused to receive.

The plea further averred that the defendant had paid said sum of money into court, together with all the costs of the case which had accrued up to the time of said payment. The plea then concludes as follows:

"Wherefore, the defendant pleads said tender and payment in full settlement and satisfaction of said indictment against him on the charge of embezzlement of funds belonging to the Knoxville Credit Reporting Company, and asks to go hence without delay."

The district Attorney General filed a demurrer to this plea, charging that it was insufficient in law and in fact, and amounted to a confession of guilt to the charge contained in the indictment, etc.

The trial judge overruled the demurrer of the state, and held that the plea of tender was a complete defense to said indictment, and ordered the defendant discharged. From this judgment the state appealed to this court, and has assigned errors.

By the assignments of error it is insisted that the trial judge committed error in overruling the demurrer of the state to the plea of the defendant, and in not sustaining said demurrer on the ground that the matters set out in said plea do not constitute a bar to the prosecution of the defendant for the offense charged in said indictment, and in discharging the defendant.

The counts of the indictment are identical, except as to the amount of money which it is alleged was misappropriated.

The language of the first count is as follows:

"The grand jurors for the state of Tennessee, upon their oaths, present:

That E. C. Matthews, heretofore, to wit, on the ______ day of September, 1918, in the state and county aforesaid, was an officer, agent, or clerk of the Knoxville Credit Reporting Company, a corporation, engaged and doing business in Knoxville, Knox county, Tennessee, he, the said E. C. Matthews, not being at said time an apprentice of said Knoxville Credit Reporting Company, and not being a person under the age of 18 years; and that the said E. C. Matthews, on the day and year aforesaid, in the county aforesaid, did, by virtue of his possession and employment aforesaid, have, receive, and take into his possession and under his care $8.75 of the value of $8.75 from Arthur Wilcox, said sum aforesaid being paid by the said Arthur Wilcox to the said Knoxville Credit Reporting Company for the purpose of satisfying a claim in the hands of the said Knoxville Reporting Company for collection against the said Arthur Wilcox, the said sum aforesaid being the property of the said Knoxville Reporting Company, and the said E. C. Matthews did then and there unlawfully, fraudulently, and feloniously embezzle and convert to his use, without the consent of the said Knoxville Credit Reporting Company, the said sum of money aforesaid, of the value aforesaid.

And the grand jurors aforesaid, upon their oaths aforesaid, do say that the said E. C. Matthews, on the day and year aforesaid, in the county aforesaid, in the manner and form aforesaid, the sum of $8.75, of the value of $8.75, the property of the said Knoxville Credit Reporting Company, feloniously did take, steal, and carry away, contrary to the statute and against the peace and dignity of the state."

The language which it is insisted charges the defendant with larceny is contained in the second paragraph of said counts.

We are of the opinion that said language does not constitute the charge of larceny. We think it was intended as a part of the charge of embezzlement, but was unnecessary to constitute said charge, and must therefore be treated as mere surplusage. The offense of embezzlement is purely statutory. The object of the statute was to meet and obviate the defects in the law of larceny, and to protect employers against the frauds of those in whom confidence is reposed, and when the element of confidence does not exist, there can be no such thing as embezzlement. If the money or property goes into the possession of the employer before it goes into the possession of the employee, his taking and appropriating it does not constitute embezzlement, but larceny. Embezzlement is the fraudulent appropriation of such property as the statute makes the subject of embezzlement, under the circumstances in the statute, by the person embezzling, to the injury of the owner. To constitute embezzlement the money or property must come directly from a third person into the hands of the employee, in the course of his employment, and be appropriated by him. A larceny cannot be perpetrated when the servant, in the course of his duty, takes his master's property from a third person, though he means to appropriate it to his own use, and does so, for he commits no trespass. Trespass is essential to constitute the offense of larceny. 3 Shannon's Tennessee Cases, 754; Johnson v. State, 9 Baxt. 281.

It will be noted that it is stated in the second paragraph of each count of the indictment in the instant case as follows:

"And the grand jurors aforesaid, upon their oaths aforesaid, do say that the said E. C. Matthews, on the day and year aforesaid, in the county aforesaid, in the manner and form aforesaid, feloniously did take, steal, and carry away," etc.

In other words, the charge in the second paragraph is that the money, which it is charged that the defendant appropriated, came into his possession in the same manner and circumstances charged in the first paragraph of said counts--that is, by virtue of his employment--and does not, therefore, constitute the charge of larceny, because it is not charged that the defendant took the money from his employer, but received it from another by virtue of his employment.

In determining whether or not the defendant's plea "of tender and payment" constituted a bar to a prosecution under the indictment, it is necessary to refer to the statutes upon the subject of embezzlement.

By section 6574 of Thompson's Shannon's Code it is provided:

"If any person within this state charged with the collection, safe-keeping, transfer, or disbursement of money or property belonging to the state or any county, use any part of said money or property by loan, investment, or otherwise, without authority of law, or convert any part thereof to his own use in any way whatever, he is

...