Whisnant v. State

• Decision Date: 20 November 1926
• Citation: 289 S.W. 492
• Parties: WHISNANT v. STATE.
• Court: Tennessee Supreme Court

Page 492

289 S.W. 492

WHISNANT v. STATE.

Supreme Court of Tennessee.

November 20, 1926.

Appeal in Error from Criminal Court, Washington County; Guy S. Chase, Judge.

W. G. Whisnant was convicted for making false entries on the books of the water department for Johnson City, and he appeals in error. Judgment reversed and indictment quashed.

Lee F. Miller, of Johnson City, and Epps & Epps, of Jonesboro, for plaintiff in error.

The Attorney General, for the State.

GREEN, C. J.

Johnson City operated a waterworks system, and the plaintiff in error was employed by the municipality in the prosecution of this enterprise. He was indicted for taking false entries upon the books of the water department of the city and convicted upon this charge. He has appealed in error to this court.

A motion to quash the indictment herein was seasonably made below upon the ground that the making of false entries upon the books of a municipal corporation by an employee thereof was not an offense, under the laws of Tennessee. This motion was overruled. It should have been sustained.

Relevant statutes, as they appear in Thompson's-Shannon's Code, are as follows:

"6574. 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 guilty of embezzlement, and for every such act, upon conviction, shall be imprisoned in the penitentiary not less than five nor exceeding twenty years, and fined in a sum equal to the money embezzled, to be applied in satisfaction thereof.

"6575. If such officer or person shall account for and pay over, according to law, all money, property, or other effects by him collected or received, he shall not be within the provisions of the preceding section.

"6576. Any officer, agent, or clerk of any incorporated company, or any clerk or agent of a copartnership or private person, except apprentices and other persons under the age of eighteen years, who embezzles or fraudulently converts to his own use any money or property of any other, which has come to his possession, or is under his care by virtue of such employment, shall, on conviction, be punished by confinement in the penitentiary not less than five nor more than twenty years.

"6577. If any of the persons mentioned in the last section shall make false entries in his own books, or the books of his employer, or upon the books of any depositor or customer, with intent to defraud his employer, or any person whomsoever, every such offender is guilty of a felony, and, upon conviction, shall be imprisoned in the penitentiary not less than five nor more than twenty years."

Sections 6574 and 6575 deal with embezzlement by public officers, agents, or employees. They were taken from chapter 82 of the Acts of 1839-40. Section 6576 deals with embezzlement by officers, agents, or employees of individuals, partnerships, and private corporations. Section 6577 deals with false entries by such latter officers, agents, and employees. These sections were taken from chapter 190 of the Acts of 1843-44.

These two acts of the Legislature, codified as indicated above, relate to distinct classes of persons. The exception contained in section 6575, whereby public officers, agents, or employees may be relieved of prosecution by repaying the sum embezzled, does not operate in favor of officers, agents, or employees of individuals, partnerships, or private corporations. State v. Matthews, 143 Tenn. 463, 226 S. W. 203, 13 A. L. R. 314; Cole v. State, 134 Tenn. 645, 185 S. W. 691.

It appears from the indictment herein that Johnson City is a municipal corporation, organized under the laws of Tennessee, and this we may judicially know. Johnson City is also referred to in the indictment as an "incorporated company," in an effort to bring the offense charged within section 6577. Unless Johnson City, however, is an "incorporated company" in the sense of our statutes, such descriptive words are without effect.

Embezzlement is not an offense at common law. Cole v. State, supra. Neither is the making of false entries by an officer, agent, or employee on the books of his principal, so far as we know, an offense at common law.

It will be observed that section 6577 denounces the making of false entries by "any of the persons mentioned in the last section." That is, by "any officer, agent or clerk of any incorporated company, or any clerk or agent of a copartnership or private person" — these being the persons mentioned in the last section (6576). Sections 6576 and 6577, Thompson's-Shannon's Code, appear in the same consecutive order as sections 4708 and 4709 of the Code of 1858.

Making of false entries by persons "charged with the collection, safe-keeping," etc., of public money — the persons...