State v. Nelson

Mr. Justice Tomlinson

delivered the opinion of the Court.

The indictment charged that Nelson violated the worthless check law, Section 11157 of the Code Supplement. The Court quashed the indictment on the ground that it failed to charge that the defendant had obtained by means of his worthless check property which may be the subject of larceny. The State has appealed.

In so far as pertinent to the question made, Code Section 11157 provides that:

‘ ‘Any person who shall obtain, with fraudulent intent, * * * property which may be the subject of larceny, * * * by means of a check, * * of which he is the maker or drawer, which is not paid by the drawee, shall be guilty * * * and punishable as in the ease of larceny, * *

It is obvious that no violation of this statute has occurred when the thing obtained by reason of the worthless check is not “property which may be the subject of larceny”, notwithstanding the fact that the legislative purpose in the enactment of the statute was to protect persons from being defrauded by reason of such check. State v. Cooley, 141 Tenn. 33, 37-38, 206 S. W. 182.

In so far as material here, the indictment charges that Nelson, by reason of the worthless check therein described, issued with intent to defraud, did obtain from Fred Sealf

“The following personal property, to-wit: The release of a labor and material furnishers lien for $668.46 on a dwelling house belonging to Carl C. and Kathryn Motley * * Description of realty follows.

There is no question but that this act upon the part of Nelson was a fraud accomplished by means of his worthless cheek; hence, within the spirit of the statute. But it must likewise come within its letter. So, the question here is whether .the release of a labor and material fur-nisher’s lien of several hundred dollars on a dwelling is “property which may be the subject of larceny”? In dealing with that question we shall ignore the fact that the indictment calls it “personal property”. That definition is only the conclusion of the pleader. It does not change the fact that the thing which the indictment charges Nelson with having obtained by reason of his worthless check was “the release of a labor and material furnishers lien” on certain real estate.

“At common law title deeds and other instruments evidencing rights in real property were regarded as partaking of the nature of realty and consequently it was not larceny to steal them; but by statute such instruments have been made subjects of the crime.” 52 C. J. S., Larceny, Sec. 3, p. 795. A statute enacted by our Legislature and carried in the Code at Section 10936 provides, in so far as material to our question, as follows:

“ Any person who shall feloniously steal * * * any receipt, release, or defeasance; any instrument of writing whereby any demand, right, or obligation is created, ascertained, increased, extinguished, or diminished; or any other valuable paper writing, shall be punished * *

It is clear that by this language the statute makes a release of a labor and material furnisher’s lien on real estate something which a person may ‘ ‘ feloniously steal”; that is, such a release is made a subject of larceny by this statute. Compare State v. Wade. 66 Tenn. 22.

Since the statute makes a release of a labor and material furnisher’s lien on real estate property which may be the subject of larceny, it follows that when such release is obtained with fraudulent intent by means of a worthless check it comes within the offense created by Code Section 11157-, which is the worthless check statute. A.n indictment so charging is, therefore, valid. In holding to the contrary the court below, we believe, overlooked Code Section 10936, as did the attorney for the defendant in error in the preparation of his good brief.

The judgment will be reversed with the costs of the appeal taxed against the defendant in error, Nelson. The cause will he remanded for further proceedings in keeping with the conclusion here reached.