22 S.E.2d 917 | N.C. | 1942
The defendant was charged with embezzlement in two cases. Separate bills of indictment were found against him. One bill charged him with embezzling property of the State of North Carolina while an officer and *292 agent of the State and cashier in the North Carolina Department of Revenue. In another bill he was charged as such officer, agent and cashier with aiding and abetting one C. W. Sneed, another officer and employee of the State, in embezzling property of the State. C. S., 4268; C. S., 4269.
By consent the cases were consolidated and tried together. There was verdict of "Guilty as charged in said bills of indictment." From judgment imposing sentence of not less than one nor more than three years in State's Prison, the defendant appealed.
The defendant bases his appeal from the judgment below principally upon three grounds: 1. He assigns error in the ruling of the court in permitting C. W. Sneed to testify as a witness against him. According to the record Sneed had entered a plea of guilty to an indictment for embezzlement at a previous term of court, but had not been sentenced. The defendant cites S.v. Bruner,
2. The defendant assigns error in the denial of his motion for judgment as of nonsuit, but an examination of the record leads to the conclusion that there was no error in the ruling of the court in this respect. There was evidence tending to show fraudulent misapplication of the property of the State as charged in the bills of indictment.
Evidence of intention or expectation, subsequently, to return the money, or that the money so fraudulently misapplied was after discovery repaid, or that the defendant secured no personal benefit, would not *293
necessarily exculpate the defendant, or compel his acquittal. S. v. Foust,
3. The defendant excepted to the following portions of the judge's charge to the jury: "There has been quite a bit said in the argument here as to punishment. The Court charges you that the punishment is no concern to you. That is the Court's province and not the jury's. And you should not consider any argument in regard to punishment bearing upon the question of guilt or innocence of the defendant. You find the true facts from the evidence and apply such facts as found by you from the evidence to the law and thereby make up your verdict. Since there has been said something in the argument concerning the punishment, the Court will read you another section in regard to punishment, not that you shall consider punishment in any way in this case. You shall not. `Suspension of sentence and probation. After conviction or plea of guilty or nolo contendere for any offense, except a crime punishable by death or life imprisonment, the judge of any court of record with criminal jurisdiction may suspend the imposition or the execution of a sentence and place the defendant on probation or may also fine and also place the defendant on probation.' I read that statute to you because there has been so much said in the case about punishment, but you will not consider punishment in arriving at your verdict in this case, and the Court so charges you."
From an examination of the record it appears that before giving the instructions complained of, the trial judge in his general charge had read to the jury one of the bills of indictment on which the defendant was being tried, and the statute, C. S., 4269, under which it was drawn. This statute prescribed a minimum sentence, upon conviction, of 20 years in prison, or $10,000 fine, or both. It appears that counsel for the defendant in their arguments to the jury had previously commented on the severity of the minimum punishment prescribed by this statute, and that the judge's reference to a general statute relating to punishment was evoked by the comments of counsel. The jury was carefully cautioned that matters of punishment were not to be considered by them in any way as bearing on the question of the guilt or innocence of the *294 defendant. Furthermore, it appears that the defendant was being tried on two bills of indictment, one charging violation of C. S., 4269, and the other drawn under C. S., 4268, which was also read to the jury. The punishment prescribed for violation of the latter statute is not less than four months and not more than ten years in prison. While the comments of counsel and the reference of the judge thereto were directed to the penal provisions of section 4269, the jury returned verdict of guilty as charged in both bills, and a single sentence was imposed — not less than one year nor more than three years in prison. Thus, it seems that the verdict rendered and the sentence imposed properly may be regarded as bottomed upon a different statute from that first read to the jury, and referred to in the portion of the charge excepted to, and without necessary relation thereto.
The exact question presented by this exception has not heretofore been decided by this Court. It has been held improper for the judge to convey to the jury the implication that a verdict of guilty would not require the imposition of the statutory penalty. In S. v. Matthews,
While the reading of a statute to the jury in regard to punishment is not to be commended, we are not prepared to hold that it alone is sufficiently prejudicial to the defendant to require a new trial. Such a rule, strictly applied, might unduly fetter the judge in giving instructions to the jury, or advising them of the exact language of the statute the defendant is charged with violating. The trial judge has wide discretion as to the manner in which he presents an issue of fact to the jury, so long as he charges the applicable principles of law correctly, and states the evidence plainly and fairly without expressing an opinion as to whether any fact has been fully or sufficiently proven. C. S., 564. It is his high duty to hold the scales evenly between all parties. There are no stereotyped forms of instructions. No two cases are exactly alike, and the trial judge's ruling should be considered by the appellate Court in the light of the circumstances of the trial. The rule prevails that in order to overthrow the verdict and judgment it must be made to appear not only that the action of the trial judge complained of was erroneous, but that it was "material and prejudicial, amounting to a denial of some substantial right." Collins v. Lamb,
The question of the propriety of reference in the judge's charge to the punishment that might be imposed after conviction has been considered in other jurisdictions, and we cite a number of cases showing the variety of circumstances under which the question has been raised.
In People v. Alfano,
In Coward v. Commonwealth, 178 S.E. (Va.), 797, it was said that, while it was improper for the trial judge to tell the jury its sentence might be set aside, or cut down by some other arm of the state, it being the jury's province (under the Virginia law) to impose such punishment as appeared from the evidence to be just and proper, such instructions would be regarded as harmless when the minimum sentence was imposed, and that it was of little importance when the court itself fixed the penalty.
In Ryan v. U.S.,
In Freeman v. State,
Where under a state statute the effect of recommendation to mercy is to reduce the punishment, it is proper for the judge to so instruct the jury.Lovett v. State,
Defendant cites State v. Tennant,
In Bean v. State, 58 Okla. (Cr.), 432 (where the jury fixes the punishment), it was held that a charge to the jury as to the rules for commutation for good behavior after incarceration in prison was improper since the rules provided for conditions subsequent to conviction and sentence.
This was thought by the appellate Court to have led the jury to fix greater punishment than would otherwise have been imposed.
In People v. Santini, 221 A.D. (N. Y.), 139, affirmed without opinion in
In People v. Harris,
In Miller v. U.S., 37 App. Cases (D.C.), 138, the trial judge said in part: "So it is a great mistake for the jury to labor under any embarrassment by reason of what they may imagine a sentence may be . . . The statute does not require a defendant convicted of embezzlement to be sent to the penitentiary at all. He may be sent there or he may be freed . . . depending on the circumstances as they may be shown to the court in addition to what has appeared here."
See also Ellerbe v. State,
In Territory v. Griego (N. M.), 42 P. 81, where the judge suggested to the jury, after they had been unable to agree for forty hours, that a recommendation to mercy would be considered by the court, a new trial was ordered. See also Randolph v. Lampkin (Ky.),
In McBean v. The State, 85 Wisconsin, 206, the jury being equally divided, sent to the, judge this inquiry, "If we bring in a verdict of guilty, can we depend on the clemency of the Court?", to which the judge replied, "Yes." In Commonwealth v. Switzer, 34 Penn. St., 383, the defendant was charged with obstructing a highway. In his charge the trial judge suggested to the jury the probable extent of the punishment in case of a verdict of guilty. In State v. Kiefer,
An examination of the various decisions of the courts on this subject leads to conclusion that after all the propriety of instructions to the jury as to punishment must be considered on the basis of the language used, in the light of the circumstances of the trial, in order to determine whether substantial error was committed to the prejudice of the defendant.
It will be noted that in the cases where new trials have been granted on this ground, the trial judge's reference to punishment usually contained definite intimations of leniency in case of conviction without the accompanying caution that the matter of punishment was not to be considered by the jury on the question of the guilt or innocence of the defendant. In our case the judge in charging the jury had read one of the statutes under which defendant was being tried which prescribed a *298
heavy penalty upon conviction. As counsel for defendant had previously commented on the punishment imposed by this statute, the judge read a portion of the general probation statute, carefully cautioning the jury, however, that they should not consider the question of punishment in arriving at their verdict. In the words of Allen, J., in Lucas v. R. R.,
In view of the previous arguments of counsel as to the penalty prescribed by C. S., 4269, and the court's reading in connection therewith a portion of a general probation statute, and the care with which the jury was instructed on this point, as well as the fact that the defendant was also found guilty under another bill charging violation of a different statute, and that the sentence imposed was in accord with the provisions of the latter statute, we are not inclined to hold that the action of the trial judge constituted prejudicial error requiring a new trial.
4. The only exception noted by defendant to the charge was that the court in stating the evidence used the expression "the State has offered evidence which tends to show." This form of expression may not be held to impinge the provisions of C. S., 564, or to constitute the expression of an opinion that any fact was fully or sufficiently proven. S. v. Harris,
The other exceptions were formal.
On the record we find
No error.