Watson v. State

• Decision Date: 29 December 1928
• Citation: 12 S.W.2d 375
• Parties: WATSON v. STATE.
• Court: Tennessee Supreme Court

12 S.W.2d 375

WATSON v. STATE.

Supreme Court of Tennessee.

December 29, 1928.

Error to Criminal Court, Hamilton County; Chas. W. Lusk, Judge.

Charles E. Watson was convicted of aiding and abetting in the embezzlement of public funds, and he brings error. Affirmed.

Floyd Estill and R. J. Bork, both of Chattanooga, for plaintiff in error.

W. F. Barry, Jr., Asst. Atty. Gen., and Shepherd, Carden & Curry and W. F. Chamlee, all of Chattanooga, for the State.

GREEN, C. J.

The plaintiff in error has been convicted of aiding and abetting in the embezzlement of public funds, the property of the state of Tennessee and of Hamilton county, and has been sentenced to the penitentiary for a maximum term of five years.

A motion to quash the indictment was made in the court below, and exception duly taken to the action of the trial judge in overruling said motion. A consideration of the questions thus raised, renewed in this court, makes it necessary to set out the indictment. Omitting the caption and formal parts, the first count of the indictment is as follows:

"That Charles E. Watson heretofore on the 11th day of November, 1922, in the County aforesaid did unlawfully, feloniously and fraudulently counsel, move and procure W. A. Whitice who was at the time the duly qualified and acting clerk of the county court of Hamilton County, one of the counties of Tennessee, to appropriate, use and embezzle of the public funds in his care and keeping as such official the sum of $17,497.91 the personal property of the State of Tennessee and Hamilton County, one of the counties of Tennessee, which said funds were appropriated from the public account by the said W. A. Whitice and loaned or given to the said Charles E. Watson, and said funds were appropriated, received and used by the said Charles E. Watson, for his personal benefit and convenience he well knowing that such funds were taken from the public account of the said W. A. Whitice as county court clerk and unlawfully appropriated to such use and the said Charles E. Watson having procured such appropriation by the said W. A. Whitice by persuasion and promise of repayment and replacement of such funds.

"Wherefore the grand jurors say and present that the said Charles E. Watson has incited and aided and abetted and assisted the said W. A. Whitice in the unlawful appropriation and embezzlement of public funds as aforesaid."

The second count of the indictment is the same except that it charges that plaintiff in error did on the 6th day of July, 1923, counsel, move, and procure Whitice to embezzle certain funds in the sum of $15,108.22, the personal property of the state of Tennessee and Hamilton county.

It is urged that both counts of the indictment are void for uncertainty, in that it cannot be determined from the allegations thereof whether it was intended to charge the defendant below as accessory before the fact or as aider and abettor. Each count of the indictment concludes by presenting "that the said Charles E. Watson has incited and aided and abetted and assisted the said W. A. Whitice in the unlawful appropriation and embezzlement of public funds as aforesaid."

We see no occasion for uncertainty as to the meaning of this indictment. It purports on its face to charge the defendant with aiding and abetting in the offense specified. It could scarcely be construed as a charge that he was an accessory before the fact. An accessory before the fact is one who, while absent, moves or counsels an offense. State v. Ayers, 8 Baxt. (67 Tenn.) 96; Pierce v. State, 130 Tenn. 24, 168 S. W. 851, Ann. Cas. 1916B, 137.

Section 6574, the statute directed against embezzlement by a public officer, makes it criminal, among other things, to use any part of the state or county funds in his custody "by loan, investment, or otherwise without authority of law." The indictment here charges that the defendant procured Whitice, the county court clerk, to lend or give to said defendant stated sums of the public money, and thus aided or abetted in the embezzlement. There could be no loan or gift without delivery. The recipient of the loan or gift is necessarily present in the transaction, either in person or by agent. Otherwise the loan could not be consummated. The defendant below could not well have been treated as an accessory before the fact, under the indictment, when it was further charged that he himself received and appropriated and used the unlawful loan, and defendant could not be considered as absent from a transaction in which he participated to such an extent

In passing it may be observed, in reply to a suggestion made in the argument, that we are of opinion the indictment sufficiently identifies the transactions upon which it is based to put defendant on notice of the things with which he was charged and to afford him adequate protection against any other charges of the kind.

It is further insisted in the attack upon the indictment that neither count thereof is sufficient to charge the defendant as aider and abettor, in the absence of averments that he was present at the time of the commission of the alleged embezzlement.

It is true that the word present was not used in either count of the indictment. In view of the other language employed, the use of this word would have been superfluous. The presence of defendant was necessarily involved and unmistakably averred by the expressions employed. As above pointed out, he must have been present, either in person or by his agent, to have received the loan or gift. It is not necessary in framing a statutory charge to use the identical words of the statute, if equivalent words are used.

Only a constructive presence is necessary to sustain a charge against a defendant as an aider or abettor, or principal in the second degree, in the commission of a criminal offense. This is distinctly recognized in Pierce v. State, supra, and other decisions of this court. The law is well settled to this effect everywhere. One may be entirely out of the jurisdiction of the court, in another state, in person, and still be constructively present in the jurisdiction where the criminal transaction takes place.

In Regina v. Garrett, 17 Jur. 1060, Lord Campbell said:

"I do not proceed upon the ground that the offense was committed beyond the jurisdiction of the court, for if a man employ a conscious or unconscious agent to commit an offense in this country, he is amenable to the laws of England although at the time the offense was committed he was living beyond the jurisdiction."

In Simpson v. State, 92 Ga. 41, 17 S. E. 984, 22 L. R. A. 248, 44 Am. St. Rep. 75, the court said:

"Of course, the presence of the accused within this state is essential to make his act one which is done in this state; but the presence need not be actual. It may be constructive. The well established theory of the law is, that where one puts in force an agency for the commission of crime, he, in legal contemplation, accompanies the same to the point where it becomes effectual."

It is a maxim of the law that a crime carries the person, crimen trahit personam.

So far as an absent principal is concerned, our statute covers his case.

"When the commission of an offense commenced without this State is consummated within its boundaries, the person committing the offense is liable to punishment therefor in this state, although he was out of the state at the commission of the offense charged, if he consummated it in this state, through the intervention of an innocent or guilty agent, or by any other means proceeding directly from himself," etc. Thompson's Shannon's Code, § 6934.

Under the general principle announced, regardless of statute, when the offense is one of the character under consideration, one participating therein by receiving the loan is bound to be regarded as present, actually or constructively. Otherwise the crime could not be consummated.

It is conceded on the brief for plaintiff in error that a defendant may be prosecuted as aiding and abetting in the commission of the crime, although the crime is of such a nature that personally he cannot be guilty thereof. A familiar illustration is that a woman may be held to answer as aiding and abetting in the crime of rape, although personally she cannot commit this crime herself. All the cases to this effect are collected in a note in 5 A. L. R. 782.

So, while the plaintiff in error, not being a public officer at the time the embezzlements here were alleged to have been committed, could not have been presented as a principal, he is nevertheless amenable to prosecution as an aider and abettor.

Passing to a consideration of the assignments of error, based on the failure of the court to direct a verdict in favor of defendant below, certain technical questions are presented:

It is contended that there is a fatal variance between the indictment and the proof in that both counts of the indictment alleged that the funds embezzled were the personal property of the state of Tennessee and Hamilton county, and that the state submitted no proof to sustain this allegation.

We do not find such a variance. It is true that an indictment for embezzlement should contain an allegation as to the ownership of the property misappropriated. This indictment charged that the funds misapplied were the property of the state of Tennessee and of Hamilton county.

The proof did not show that any of the money embezzled was the joint property of the state and county. Part was the property of the state and part the property of the county.

It is well settled under the authorities that in an indictment against an official for the embezzlement of public funds in his custody, belonging to the state and county, or to several townships, it is not necessary to specify nor to prove what particular part of the fund belonged to each particular governmental entity. Brown v. State, 18 Ohio St. 496; State v. Flint, 62 Mo. 393; State v. Ensley, 177 Ind. 483, ...