178 S.E. 224 | N.C. | 1935
Criminal prosecution, tried upon indictment charging the defendant (a person over the age of sixteen years) in one count, "as commissioner of the Superior Court of Orange County, and as agent of the Superior Court of Orange County, and the aforesaid parties," with receiving, having in his possession, and embezzling $2,955, the property of J.L. Phelps and others, and in a second count, "as agent and attorney of J.L. Phelps and others," with receiving, having in his possession, and embezzling the said $2,955, etc.
The evidence on behalf of the State tends to show that on 8 December, 1930, in a special proceeding pending in the Superior Court of Orange County entitled, "John L. Phelps et al. v. Ida Hughes et al.," the defendant was appointed commissioner to sell the lands belonging to the estate of John Malone. The defendant entered upon his duties, sold the lands as directed, and took into his possession, as such commissioner, the proceeds derived therefrom, $4,365, and has failed to account for $2,955 of said funds, though repeated demands have been made upon him for their proper disbursement. The defendant told several of the heirs that "he had collected all the moneys," and Otis D. Blackwell testified: "He told me that he got all the money and he was going to pay it out right away, but he never did."
The clerk of the court testified: "In the statement filed 8 October, 1932, Mr. Ray admitted he had not accounted for $2,967. Later, certain credits cut it down to $2,955. I don't think all the heirs had been ascertained, but nothing came up about that until after this account was filed, showing the balance due at that time."
An account was carried by "J. Clyde Ray, Commissioner," at the Farmers and Merchants Bank of Hillsboro (which seems to have been opened on 23 August, 1928), and between the dates of 21 February, 1931 (when the account showed a balance of 88c.) and 23 October, 1931, deposits amounting to $4,429.10 were credited to said account. Numerous small checks, over 250 in number, were drawn against this account between 23 February, 1931, and 27 April, 1933. On the latter date the account showed a balance of thirty-one cents.
The defendant offered no evidence, but relied upon his motion to nonsuit. *644
The court, in charging the jury, defined embezzlement as follows: "I instruct you that embezzlement is a breach of trust by misapplying or converting the property entrusted to a person, when done with a fraudulent intent." Exception. And again: "Another definition of embezzlement is about the same thing, but in different words, gentlemen, is the fraudulent conversion of property by one who has lawfully acquired possession of it, for the use and benefit of another." Exception.
Verdict: Guilty in the manner and form as charged in the bill of indictment.
Judgment: Imprisonment in the State's Prison for not less than three nor more than five years.
The defendant appeals, assigning errors.
In Peal v. Martin, ante, 106,
Whether the defendant had embezzled any part of the funds which came into his hands as Commissioner, and not as agent or attorney, was the issue arising on the evidence. S. v. Gulledge,
The record also discloses that, over objection, the prosecution was allowed to show the surety on defendant's bond, as commissioner was now "in the hands of a receiver, being liquidated by the Commissioner of Insurance of the State of New York." The pertinency of this evidence is not apparent.
New trial.