State v. Missio

• Decision Date: 27 June 1900
• Citation: 58 S.W. 216,105 Tenn. 218
• Parties: STATE v. MISSIO.
• Court: Tennessee Supreme Court

58 S.W. 216

105 Tenn. 218

STATE v. MISSIO.

Supreme Court of Tennessee.

June 27, 1900

Appeal from criminal court, Shelby county; L. P. Cooper, Judge.

Richard Missio was convicted of receiving stolen goods, and he appeals. Reversed.

L. T M. Canada and L. Lehman, for appellant.

The Attorney General, for the State.

WILKES J.

The indictment in this case charges the defendant "with unlawfully, feloniously, and fraudulently receiving, buying concealing, and aiding in concealing four boxes of tobacco of the value of $15 per box, the proper goods and chattels of the Southern Railway Company, a corporation chartered by law which had been before, as he, the defendant, then and there well knew, feloniously and fraudulently taken, stolen, and carried away from the said Southern Railway Company, with the intent feloniously and fraudulently to deprive the true owner thereof." There was a plea of not guilty, and a trial, conviction, and sentence of three years in the state penitentiary; and defendant has appeared.

The bill of exception states that Mr. Patterson, whom we will judicially know was the district attorney general prosecuting for the state, said during the trial that he desired to offer in evidence, as proof of the corporate character of the Southern Railway Company, the list of corporations published in the Acts of 1897, showing that the Southern Railway Company is a corporation. The district attorney general no doubt referred to the certified list of corporations set out in the Acts of the General Assembly of 1897. At pages 807 to 827 there is published a list of foreign corporations which have filed their charters in the state in order to do business therein, and in this list appears the following: "Southern Railway Company, Richmond, Va.; June 25, 1894." There is no certificate as to the correctness of this list. We know of no authority of law for its publication. The statute (Shannon's Code, § 7357) provides: "On all trials for offenses, where the existence of a corporation must be shown, a legally authenticated copy of the charter of such corporation, or a book purporting to be the public statute book of the United States, or of the particular state in which the charter is printed, shall be prima facie evidence of the existence of such corporation." This section applies to all corporations, whether foreign or domestic, and there was no attempt to comply with this provision in the present case; and it is insisted that proof of corporate character of a foreign corporation could be made only in this manner. Acts 1875, c. 142, § 20 (Shannon's Code, § 2033), provides that the secretary of state shall have published and bound with the acts of each general assembly a certified list of all corporations organized under that act since the last publication, giving the name and date of organization of each corporation, and such publication shall be legal evidence of the existence of such corporation. Construing this act, it has been held that such publication is prima facie evidence of the existence or legal incorporation of such corporation. Brewer v. State, 7 Lea, 682; Tillery v. Same, 10 Lea, 35; Anderson v. Railroad Co., 91 Tenn. 47, 17 S.W. 803. But this statute is by its terms limited to such domestic corporations as are organized under the act of 1875, and does not apply to foreign corporations; and there is no law which makes a list of foreign corporations, made out and published by the secretary of state in the public volumes of the acts, evidence to prove corporate existence.

The property alleged to have been stolen, and afterwards received by the defendant knowing it to have been stolen, is laid in "the Southern Railway Company, a corporation chartered by law"; and it was essential to prove the existence of such corporation, and its ownership, general or special, of the property, in order to sustain the indictment. Brooks v. State, 5 Baxt. 607. It was held in the case of Swaggerty v. State, 9 Yerg. 338, that an indictment for receiving stolen property need not show by whom the property was stolen, nor from whose possession it was stolen, nor that the principal thief had been convicted; but neither this nor any other case dispenses with the necessity for proving some ownership of the property and its taking, and the intention of the party who receives it to deprive the true owner thereof, knowing it to have been stolen. These are the essential elements of the offense. Wright v. State, 5 Yerg. 154; Bedford v. Same, 5 Humph. 552; Rice v. Same, 3 Heisk. 226; Parham v. Same, 10 Lea, 500; Brooks v. Same, 5 Baxt. 607; Younkins v. Same, 2 Cold. 219. It is not necessary to prove who stole the goods, nor the name of the party from whom taken; but it is necessary to prove the ownership, general or special, of some person, and the fact that they have been stolen from the true owner by some one, and have eventually been received by the defendant, knowing them to have been stolen, and with the intent on the part of the defendant to deprive the true owner thereof; and, when the ownership is laid in a certain person, it must be so proven.

The defendant moved at the proper time to exclude such evidence as had been offered to prove the incorporation of the Southern Railway Company, because incompetent, and not the best evidence, and not such as the law requires, all of which the court overruled. The case is treated as though the corporate character could only be proven in one of the modes above pointed out. We are of opinion that while it is necessary to prove the ownership, general or special, by some one of the goods alleged to have been feloniously received it is not necessary to prove the charter of the railroad company, nor its capacity under its charter and the law to be the owner, general or special, of the property. It is shown in this case that the goods were shipped over the Southern Railway, as a public carrier, from Haines, at Winston, N. C., to McClintock & Pea Bros., at Grosbeck, Tex. There can be no question, under this record, but that the goods were feloniously taken from the custody and temporary ownership of this company while in transit, and that they were in possession and ownership of them as a public carrier at the time they were stolen. We think this is sufficient evidence of corporate character and ownership, and it would be a rule too strict to require that, in this collateral, though essential, matter of ownership, the state must prove the corporate existence and character of the railway company by a copy of its charter, and that its charter was regular, and that it had complied with the law in regard to foreign corporations in order to do business or own property in the state; and such strictness would often defeat the ends of justice. In an indictment for burglary it has been held that the name of the corporation and other matters relating to incorporation need not be stated in the indictment. People v. Henry, 77 Cal. 445, 19 P. 830; State v. Shields, 89 Mo. 259, 1 S.W. 336; Fisher v. State, 40 N. J. Law, 169. And in Norton v. State, 74 Ind. 337, it was held that the corporate existence would be implied without being specially averred. And in Crawford v. State, 68 Ga. 822, it is held that such averment is surplusage. But, whether this be the correct rule or not, we think that in a collateral matter, as this is, it is not necessary to set out or prove the corporation by producing its charter, nor that the company has complied with all the laws relating to the creation, organization, and operation of corporations. We think proof that the company was engaged under a corporate name in carrying on the business of a public...