Trotter v. State

• Decision Date: 21 January 1929
• Citation: 12 S.W.2d 951,158 Tenn. 264
• Parties: TROTTER et al. v. STATE.
• Court: Tennessee Supreme Court

12 S.W.2d 951

158 Tenn. 264

TROTTER et al. v. STATE.

Supreme Court of Tennessee.

January 21, 1929

Appeal in Error from Criminal Court, Hamilton County; Chas. W. Lusk Judge.

J. V Trotter and another were convicted of conspiring to take and appropriate public funds, and they appeal in error. Reversed and remanded.

Murray & McCalla and Carlyle S. Littleton, all of Chattanooga, for plaintiffs in error.

The Attorney General, for the State.

GREEN C.J.

The plaintiffs in error have been convicted of conspiring to take and appropriate to their own benefit, by the use of false pretenses, certain public funds of Hamilton county. They were each sentenced to a term of three years in the penitentiary and have appealed in error to this court.

Trotter was the chairman of the Hamilton county board of education and Arnold was a contractor engaged to erect a county school and to do other work for said county. The indictment charges that these two "did unlawfully and feloniously agree, confederate and conspire together to feloniously take and appropriate to their own use and benefit the public funds of Hamilton County." The indictment then sets out certain false pretenses and devices whereby it was alleged that Trotter and Arnold conspired to unlawfully procure and appropriate to themselves funds of Hamilton county, which details it is unnecessary to relate here.

A preliminary motion is made, on behalf of the state, to strike from the record the bill of exceptions on the ground that said bill of exceptions was not filed within the time allowed by law. We find it unnecessary to pass on this motion, since we must dispose of the case on a question arising upon the technical record, and we do not have occasion to look to the motion for a new trial nor to the bill of exceptions at all.

The record shows a minute entry in the court below on June 30, 1928, as follows: "After the jury had been sworn in this case and before the introduction of testimony began, the court announced that the indictment in this case was based upon and drawn under the Act of 1897, chapter 52, carried into Shannon's Code at section 6696a1, and that he wanted to hear from both sides as to whether that Act applied or not. Thereupon after some discussion by counsel for both sides the court held that said Act, to-wit, the Act of 1897, chapter 52, carried into Shannon's Code at section 6696a1, did apply and was controlling, and that the trial be proceeded with under that Act, to which holding and ruling of the court the defendants excepted at the time, insisting that said Act did not apply."

The Act referred to, which will be more fully set out hereafter, makes it a felony for two or more persons to enter into or form any conspiracy or combination of the kind therein described, and carries a penalty of from 3 to 21 years' imprisonment in the penitentiary. The judgment of conviction in this case, as above stated, imposed a sentence of 3 years in the penitentiary. Obviously, therefore, the conviction was had under chapter 52 of the Acts of 1897 and not under section 6693, Shannon's Code, which deals with conspiracies generally. Under the latter section a conspiracy to obtain money by false pretenses is a misdemeanor only.

The ruling of the trial judge that chapter 52 of the Acts of 1897 controls the case was a ruling upon a question of law appearing from the record proper. No motion for a new trial was necessary to obtain a review of such ruling in this court, any more than such a motion would have been necessary to the review of the ruling on a motion to quash or a demurrer. Clearly it was not necessary to take a bill of exceptions to have such a ruling reviewed. See Nashville, C. & St. L. Ry. Co. v. Smith, 147 Tenn. 453, 249 S.W. 377; Rogers v. Colville, 145 Tenn. 657, 238 S.W. 80; M. St. R. Co. v. Johnson, 114 Tenn. 632, 88 S.W. 169; Wise & Co. v. Morgan, 101 Tenn. 273, 48 S.W. 971, 44 L. R. A. 548. In all these cases it was pointed out that errors apparent upon the record proper might be considered in this court without any motion for a new trial having been made, or bill of exceptions taken, in the court below.

This brings us to a consideration of chapter 52 of the Acts of 1897 and the propriety of the ruling of the court below as to the applicability of such statute.

The act, in part, is as follows:

"Section 1. Be it enacted by the General Assembly of the State of Tennessee, That it shall be a felony punishable by from three to twenty-one years imprisonment in the penitentiary and by full judgment of infamy and disqualification, for two or more persons to enter into or form any conspiracy or combination, or to remain in any conspiracy or combination under any name, or upon any pretext whatsoever, to take human life, or to engage in any act reasonably calculating to cause the loss of life, whether generally or of a class or classes, or of any individual or individuals; or to inflict corporal punishment or injury, whether generally or upon a class or classes, or upon an individual or individuals; or to burn or otherwise destroy property or to feloniously take the same, whether generally or of a class or classes or of an individual or individuals.

Sec. 2. Be it further enacted, That it shall be a felony, punished in like manner as the offense described in the first Section of this Act, for any person, either directly or indirectly to procure or encourage anyone to become or remain a member of any such unlawful conspiracy or combination as is described in the first Section of this Act; or for any person either directly or indirectly to aid, abet, or encourage any person to engage or remain in such conspiracies or combinations or to aid or abet in the accomplishment of any purpose or end of such conspiracies or combinations."

The argument, of course, is that the defendants below did enter into or form a conspiracy or combination to feloniously take the property of Hamilton county.

It seems to us from the terms employed that section 1 was a prohibition against organizing, joining, or remaining a member of any association or society, bearing any name, or formed upon any pretext whatsoever, which contemplated taking human...