Truslow v. State

• Decision Date: 21 June 1895
• Parties: TRUSLOW v. STATE.
• Court: Tennessee Supreme Court

31 S.W. 987

95 Tenn. 189

TRUSLOW v. STATE.

Supreme Court of Tennessee.

June 21, 1895

Appeal from circuit court, Carroll county.

R. F Truslow was convicted of larceny, and appeals. Affirmed.

S. W Hawkins, Joseph R. Hawkins, and Alvin Hawkins, for appellant.

Atty Gen. Pickle, James P. Wilson, and Henry C. Townes, for the State.

McALISTER J.

The plaintiff in error was convicted in the circuit court of Carroll county of the larceny of two United States bonds of the denomination of $1,000 each, the property of Mrs. Mary Johnson. The jury assessed his punishment at confinement in the state prison for a term of three years. Motion for a new trial and an arrest of judgment having been overruled, the prisoner appealed to this court.

The record discloses that in 1888, upon the organization of the Bank of Carroll, at Huntingdon, the said R. F. Truslow was elected its cashier, and continued to occupy that position until October, 1893, when the bank failed and went into liquidation. In 1888, shortly after the organization of the bank, one J. W. Mevane, father of Mrs. Mary Johnson deposited for safe-keeping at the said bank, with R. F. Truslow, cashier, two 4 per cent. United States bonds of the denomination of $1,000 each, with interest coupons attached, payable quarterly. These bonds were the property of his daughter, Mary Mevane, who has since intermarried with Clarence Johnson. Truslow received the bonds, and deposited them in a drawer in the bank safe, which he labeled "Mary Mevane," and at a subsequent time delivered the key to the drawer to J. W. Mevane. This key was turned over by J. W. Mevane to his daughter. It appears that for two succeeding years J. W. Mevane, for his daughter, collected the coupons quarterly, upon their maturity. This witness stated: "When I would go after the money due on the coupons, I would take the key and hand it to Truslow, and he would go to the safe and bring me back the money on the coupons." After the marriage of the said Mary Mevane to Clarence Johnson, the coupons were collected either by the said Mary or her husband. In 1891, the Bank of Carroll, becoming indebted to the First National Bank of Nashville in the sum of $1,500, on account of overdrafts, and being pressed for security, the said Truslow, to use his own language, "either pried open the Mevane drawer or with another key unlocked it," and, removing one of the bonds, forwarded it to the Nashville Bank, as collateral security. Additional security being still demanded, Truslow, on the 11th of May, 1891, removed from the drawer the remaining bond, and likewise pledged it with the First National Bank of Nashville. This removal and hypothecation of the bonds was without the knowledge or consent of the owner, and said Mary Johnson. It appears that, after the removal of the bonds, Johnson and wife continued to collect the interest coupons quarterly, up to the date of the assignment by the bank in October, 1893. Clarence Johnson testified that he did not go to the safe to get the coupons, but would hand the key to defendant Truslow at the bank counter, and he would go to the safe in the back of the bank, and would come back to the counter, pay witness the money, and hand him back the key to the drawer. It thus appears that the defendant kept up the pretense of locking the drawer and clipping the coupons from the bonds, for one or two years after he had secretly and fraudulently removed them. It further appears that on the 11th of September, 1893, only a short time before the failure of the Bank of Carroll, Truslow, in the name of the bank, executed a renewal note to the First National Bank of Nashville for the sum of $2,000, and pledged said bonds as security, with an express power of sale in the face of the note, upon the nonpayment of the note at maturity.

The Bank of Carroll on the 2d of October, 1893, made a general assignment for the benefit of the creditors. The note for $2,000, due the Nashville Bank, was not paid, and in January, 1894, the bonds were sold, and were thus wholly lost to the owner. It appears that after the assignment the trustee sent to Truslow for the combinations to the lock, in order to enable the former to open the safe. Truslow sent some figures which did not disclose the combination, and the assignee was compelled to communicate with the manufacturers in order to learn it. When the safe was opened, Clarence Johnson was present, and, upon an examination of the Mevane drawer, learned for the first time that the bonds had been abstracted. In the meantime the defendant had become a fugitive, and was traveling about in disguise, under an assumed name. After absenting himself three or four months, he voluntarily returned to his home, when he was arrested, indicted, and convicted, as already stated.

The first ground upon which the counsel for the defendant asks a reversal is that the verdict and judgment below are not supported by the evidence. The contention is that there is no evidence to show that when Truslow removed these bonds, and pledged them with the First National Bank of Nashville as collateral security for an indebtedness of the Bank of Carroll, he intended to appropriate the bonds to his own use or to deprive Mrs. Johnson permanently of her property. The defendant testified that, at the time he took the bonds and hypothecated them, he expected and intended to redeem them in a few days and return them to the drawer whence he had taken them. The court charged the jury on this subject, viz.: "The state must also establish that the defendant intended, when he took these bonds, if he did take them, to deprive the true owner of them permanently. If he took them intending at the time to return them, he would not be guilty, and you should acquit him, etc. It is for you to determine from the whole testimony in this case what his intentions were when he took them. To determine this you will look to and consider all his conduct as shown by the testimony,-when he took them; what he did with them; the amount of the debt to secure which they were deposited; what reasonable expectation he had of being able to pay that debt and get the bonds back; and what finally became of them. In making up your conclusion as to the motive and intent with which defendant took said bonds, you...