94 Tenn. 79 | Tenn. | 1894
The defendant was indicted for embezzlement. He was the Supreme Treasurer of the Supreme Council of the Catholic Knights of America, a corporation, organized under the laws of Kentucky, but doing business in Tennessee. It is charged in the indictment, that, while acting in this official capacity, he collected in Hamilton County, in this State, the sum of $75,000 for his principal, and that he had “unlawfully, fraudulently, and feloniously, and with the intent to defraud and deprive the true owners thereof,” appropriated and converted this sum to his own use.
After a number of continuances, the defendant presented a plea to this indictment, which is styled by him, and has the form of, a plea in abatement. In this plea the defendant says the indictment ought not to be maintained because the Supreme Council of the Catholic Knights of America was a foreign corporation, and that it had not, at any time, filed in the office of Secretary of the State of Tennessee a copy of its charter, and caused an abstract of the same to be recorded in the office of the Register of Hamilton County, as required by the Act of the Legislature passed March 21, 1891, and approved March 26, 1891, and that, having failed of compliance with the requirements of that Act, it was wrongfully carrying on business in this State, and could neither acquire, hold, collect, nor pay out moneys in this State, and, therefore, the defendant could not be
The Attorney-general moved the Court to strike out this plea, because, among other reasons, it presented no meritorious defense to the indictment. This motion -was overruled by the trial Judge, and, the State declining to take issue on the plea, it was sustained, and the defendant was discharged.
Erom this judgment the State has appealed, and has assigned for error this action of the Court below.
The indictment in this case rests on § 5475 of the Code (M. & Y.) of Tennessee. ' It is unnecessary for us to analyze this section. It is enough to say that its terms are broad enough to include the employes of a foreign corporation, and the facts alleged in the indictment, being proved, would warrant a conviction, unless it be that this plea in bar offers a sufficient defense. The question, then, presented here is, Is it a good plea? We have no hesitation in saying it is not. Conceding that this corporation, organized, as is averred in the indictment, for benevolent purposes, is within the Act of 1891 (and this we do not now determine), yet, if it should turn out in proof that the defendant, while acting as agent and employe of it, received money paid to him for his principal in the course of his employment, and then feloniously and fraudulently appropriated it to his own use, when indicted for the offense, he cannot be permitted to defend 'himself from the criminal consequence of such wrongdoing
The Courts adopted this view, and said, through Judge Brewer delivering the opinion: “We hold that when one assumes to act as agent for another, he may not, when challenged for these acts, deny his agency; that he is estopped, not merely as against his assumed principal, but also as against the State; that one who is agent enough to receive money is agent enough to be'punished for embezzling it. ”
Bishop, in his work on Criminal Law (3d Ed.), Sec. 367, distinctly suggests the rule of estoppel as one proper for adoption in criminal jurisprudence. He says: “In reason, whenever a man claims to be a servant while getting into his possession, by force of his claims, the property to be embezzled, he should be held to be such on his trial for the embezzlement. Why should not the rule of estoppel, known throughout tké entire civil department of our jurisprudence, apply, in the criminal?”
Without further discussion, we are content ■ to adopt this rule of estoppel, so long recognized in the civil courts, as a proper one for enforcement in the criminal courts of this State, believing, as we do, that it rests on sound reason, and is supported by the weight of authority of eminent respectability.
It is proper to add that an examination of the two cases relied on by the defendant discloses nothing in conflict with the conclusion reached by us.
As we have already said that § 5475 of the Code is broad enough in its terms to include an act of embezzlement by an agent of a foreign corporation, it is apparent that these cases do not militate against either the premise or the conclusion of this opinion.
The case is reversed, and remanded for further proceedings.