Raine v. State. Where defendant, a banker, was acquitted of embezzlement, but convicted of fraudulent breach of trust, he was not entitled to a new trial on the ground that his restitution of the money taken brought him within the exception of Thompson's Shannon's Cɔde, section 6575, for such exception applies only to embezzlement denounced by section 6574. (Post, pp. 187, 188.) Acts cited and construed: Acts 1839, 1840, secs. 1-3, ch. 82. Code cited and construed: Sec. 6574 (T.-S.). 14. EMBEZZLEMENT. Restitution is no defense save in case of embezzlement by public officer. Thompson-Shannon Code, section 6575 declaring that if one shall account for and pay over all money collected, or received, he shall not be subject to punishment for embezzlement denounced by the preceding section, applies only to embezzlers of public, as distinguished from private funds, the preceding section dealing with embezzlement by public officers only. (Post, p. 188.) 15. CRIMINAL LAW. Finding of trial judge that jury was not influenced conclusive if supported. Where it was asserted that the jury was improperly influenced or tampered with, a finding on motion for new trial by the lower court contrary to such assertion is conclusive where supported by any evidence. (Post, pp. 188-191.) 16. CRIMINAL LAW. Finding that jurors were not tampered with and received no messages warranted. Where defendant sought a new trial on the ground that jurors were allowed to read newspaper accounts of the trial while it was in progress, and were allowed to separatę, etc., a finding by the trial court that the jurors were not tampered with, and were not improperly influenced, the evidence showing that accounts in the papers were deleted before the jurors were allowed to read them, etc., held warranted. (Post, pp. 188-191.) Cases cited and approved: Percer v. State, 118 Tenn., 765; Sher man v. State, 125 Tenn., 19. Raine v. State. Embezzlement. Instruction in prosecution for 17. CRIMINAL LAW. In a prosecution for fraudulent breach of trust, where there was no evidence that defendant, a banker, acquired title to the moneys he was claimed to have misappropriated, an instruction that there could be no conviction if title passed to defendant was properly refused, where there was no evidence on the issue, and for the further reason that it was not essential that the identical money Idelivered should be returned. (Post, p. 191.) 18. EMBEZZLEMENT. Intent is not essential crime of fraudulent breach of trust. The essence of fraudulent breach of trust denounced by Thompson's Shannon's Code, section 6580, does not embrace any intent to deprive the owner of his property, and no matter how good the intention of the defendant may be at the time of the misappropriation, he is guilty, and for that reason an instruction that there could be no conviction unless defendant converted the money with intent to deprive the true owners was properly refused. (Post, pp. 191, 192.) 19. CRIMINAL LAW. Trial judge can decline special requests unless they are strictly accurate. The trial judge cannot be put in error for declining special requests unless they are strictly accurate in substance and in form. (Post, pp. 192, 193.) 20. EMBEZZLEMENT. Requested instruction on fraudulent breach of trust properly refused; "legal tender.'' In a prosecution for embezzlement, larceny and fraudulent breach of trust by a banker who misappropriated funds, a request that he could not be convicted unless the jury should find he obtained from the bank legal tender in the form of good and lawful money of the United States was properly refused, the banker having been acquitted as to the first two offenses, for the instruction is erroneous, not only because making "legal tender" synonymous Raine v. State. with good and lawful money, which is not the law, but because of the use of the word "obtain," which would be applicable to the court on statutory larceny, but for fraudulent breach of trust. (Post, pp. 192, 193.) Case cited and approved: Johnson v. State, 125 Tenn., 420. 21. EMBEZZLEMENT. Bank president may control funds and property, though cashier is executive officer. While the cashier is the general financial executive officer of a bank, and as such has custody and control of the bank's property, funds and assets, yet the directors, where there is no inhibition in the bank's charter, may clothe the president with functions and duties which would otherwise repose in the cashier, or the president may by usage and custom exercise such power, so as to make him liable for fraudulent breach of trust. (Post, pp. 193200.) 22. EMBEZZLEMENT. Bank president held to have custody of funds so as to be guilty of fraudulent breach of trust. In a prosecution or fraudulent breach of trust under Thompson'sShannon's Code, section 6580, against the president of a bank who misappropriated the funds of the institution, evidence held to establish his guilt of the offense charged, showing that he, and not the cashier, acted as the general financial executive offcer, and that he had control of the funds and property of the bank (Post, pp. 193-200.) Cases cited and approved: State v. Kortgaard, 62 Minn., 7; Reeves v. State, 95 Ala., 31; Ker v. People, 110 Ill., 627. Code cited and construed: Sec. 6545 (T.-S.). FROM SHELBY. Error to the Criminal Court of Shelby County.—HON. T. W. HARSH, Judge. HUGH M. MAGEVNY and JNO. E. BELL, for Raine. Raine v. State. WM. H. SWIGGART, JR., Assistant Attorney-General, for the State. MR. EDWARD J. SMITH, Special Justice, delivered the opinion of the Court. C. Hunter Raine, the plaintiff in error, hereinafter referred to as the defendant, was indicted in the criminal court of Shelby county on February 10, 1914, on an indictment charging him in three counts with embezzlment, fraudulent breach of trust, and statutory larceny of the sum of $788,804.76, good and lawful money of the United States, the property of the Mercantile Bank of Memphis, Tenn. On July 15, 1919, he was convicted by the jury of fraudulent breach of trust, as charged in the second count of the indictment, and was sentenced to be confined in the penitentiary for not less than one nor more than ten years. From this judgment Mr. Raine has appealed to this court, and has here assigned fifteen errors. Prior to the trial several motions were made on behalf of the defendant, and as they are not assigned in the order in which they were presented in the court below, we shall consider them rather in their logical order than that in which they appear in the formal assignments of error. The fifteenth assignment of error is that the trial judge erred in overruling the defendant's motion for a discharge and for a dismissal of the case, made before the jury were sworn, on the ground that he had been denied the speedy public trial guaranteed to him by the sixth amendment to Raine v. State. the Constitution of the United States and by article 1, section 9, of the Constitution of Tennessee, and also by section 6951 of Shannon's Code of Tennessee, and upon the further ground that the court had lost jurisdiction of the case. So far as any reliance is placed on the sixth amendment to the Constitution of the United States, the question need not be further considered, for, since the leading case of Barron v. Baltimore, 7 Pet., 248, 8 L. Ed., 672, it has been an elementary principle of constitutional law that amendments one to ten of the federal Constitution are binding only on action by the United States, and are not binding on the respective States. As this is a proceeding in a State court for the alleged violation of a State statute, it necessarily follows that no constitutional right can be predicated on the sixth amendment to the federal Constitution. Turning, then, to the State Constitution, counsel for the defendant rely on the case of Arrowsmith v. State, 131 Tenn., 480, 175 S. W., 545, L. R. A., 1915E, 363. In this case it appeared that Arrowsmith, who had been indicted in eleven cases for forgery, was put on trial on one of the indictments, and duly sentenced and convicted therefor. While serving this sentence the trial court caused an order to be made and entered on the minutes that the remaining cases be retired from the docket until the expiration of the first sentence, which Arrowsmith was serving in the State penitentiary. When this sentence had been served the State attempted to try Arrowsmith on the remaining indictments, and he insisted that as the cases had |