State v. DavisState v. Davis
- Reporters:
- , ,
- Before:
- Connor, Brogden, Clarkson
Chapter 321, sec. 1, Public-Local Laws of 1919, providing that grand juries for Buncombe County should be drawn in July and January of each year for the fall and spring terms of that county and that no other grand juries should be drawn, is in full force and effect, C. S., 8106 (1919), not repealing the local statute either expressly or by implication, and a motion, aptly made, to quash indictments on the ground that the grand jury was not properly constituted, in that the indictment was returned by the grand jury at terms of court subsequent to the term at which it was drawn, is properly refused.
2. Statutes C b — Repeal of statutes by implication is not favored.
The repeal of a statute by implication is not favored by the law, and a later statute will not be construed as repealing a former statute unless the repugnancy between them is irreconcilable.
3. Indictment A d — Motion to quash on ground that there was no evidence at hearing before grand jury held properly denied.
It is not error for the trial judge to permit the foreman of the grand jury, at his request, to indicate by a cross-mark against the name of the
4. Indictment C b — Motion to quash indictment for duplicity held properly denied in this case.
In a prosecution for making and publishing false reports of the condition of a bank in violation of N. C. Code, 1931, sec. 224(e), an indictment which charges the offenses in the language of the statute is not bad for duplicity, and where it charges the offense in a plain, intelligent and explicit manner it is sufficient.
5. Criminal Law L d — Exceptions relating to count on which defendant was acquitted are improperly included in the record on appeal.
Where the defendant has been acquitted on one count in the bill of indictment, exceptions relating thereto are improperly included in the case on appeal, and will not be considered except in so far as they relate to the count upon which the defendant was convicted.
6. Banks and Banking I d — Proof that item of bank statement was false and published with knowledge and unlawful intent is sufficient.
In a prosecution of an officer of a bank for publishing a false report of the bank‘s condition in violation of
7. Same — Bank officer verifying report must do so upon his own knowledge and not upon statements of other employees.
The verification of a report of the condition of a bank made by certain officers or directors to the Corporation Commission in response to an official call is required to be made upon the knowledge of those signing the report and not merely upon the statements by other employees of the bank, and in a prosecution for publishing a false report in a newspaper a defendant bank official who had verified the report may not escape criminal liability upon the grounds that he was busily engaged with other matters of the bank‘s business at the time of signing it and relied upon the assertions made to him by other employees as to its correctness, and signed it without knowledge of its falsity.
Brogden, J., dissenting. Clarkson, J., concurring.
In the first count in the consolidated indictment, it is charged that defendants “being officers and/or directors of the Central Bank and Trust Company, a banking corporation organized and existing under the banking laws of the State of North Carolina, with its banking house at Asheville, N. C., and at said date receiving deposits of money, with force and arms at and in said county and State, with intent to defraud or injure said bank and with the intent and purpose to deceive the Corporation Commission of North Carolina, its examiners and agents appointed to examine the affairs of said bank, and other corporations and persons dealing with said bank, with respect to the true financial condition of said bank, on or about 18 October, 1930, unlawfully, wilfully, knowingly, fraudulently and feloniously, in response to an official call from said Corporation Commission of North Carolina, for a report of the condition of said bank as of 24 September, 1930, did make (and knowingly permit to be made) a false report to said Corporation Commission of North Carolina, with respect to the financial condition of the aforesaid bank, and did knowingly, falsely, fraudulently and feloniously report to said Corporation Commission of North Carolina that the overdrafts of said bank on 24 September, 1930, amounted to $71,704.92, when in truth and in fact the said overdrafts on said date amounted to $181,840.68, and did also on said date falsely, knowingly, fraudulently and feloniously report to the said Corporation Commission of North Carolina that the deposits due public officials on said 24 September, 1930, were $5,432,039.69, when in truth and in fact the deposits due public officials on said 24 September, 1930, were $7,294,352.98; and did further on said date knowingly, falsely, fraudulently and feloniously report to the said Corporation Commission of North Carolina that the amount due from approved depository banks on the said 24 September, 1930, was $2,325,382.99, when in truth and in fact the correct amount due from approved depository banks on said date was $153,684.10, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State.”
Certain items with respect to which it was charged in the indictment that the reports made to the Corporation Commission, and published in the Asheville Times, respectively, were false and fraudulent were eliminated from the consideration of the jury, as the result of rulings made by the court, on motions of defendants, during the progress of the trial.
The verdict returned by the jury was as follows:
“Not guilty, as to defendants, J. A. Sinclair and C. N. Brown; not guilty as to defendant, Wallace B. Davis, on the first count, but guilty on the second count.”
The record shows that on the return of the verdict, questions were addressed to the jury by the court and answered as follows:
Q. Is this your verdict? A. Yes, sir.
Q. So say you all? A. Yes, sir.”
The verdict was thereupon recorded as returned by the jury.
From judgment that the defendant, Wallace B. Davis, be confined in the State‘s prison for a term of not less than five or more than seven years, the said defendant appealed to the Supreme Court.
Connor, J. The defendant, Wallace B. Davis, before pleading to the indictments which were thereafter consolidated by order of the court, as authorized by statute (
The question presented by defendant‘s first motion to quash is whether the grand jury which was duly drawn, sworn, and empaneled at the January Term, 1931, of the Superior Court of Buncombe County, was a duly constituted grand jury at the March Term, 1931, and at the April Term, 1931, of said court. The indictments show on their face that they were returned by the grand jury at these terms, respectively. It was admitted that no grand jury was drawn, sworn or empaneled at either of said terms, and that both the indictments were returned at said terms by the grand jury which was drawn, sworn and empaneled at January Term, 1931.
It is provided by section 1 of chapter 321 of the Public-Local Laws of North Carolina, 1919, that “the grand juries drawn in the Superior
There was no error in the action of the court in permitting the foreman of the grand jury, at his request, after the return of the indictment at April Term, 1931, to indicate by a cross-mark against the name of the witness endorsed on the indictment that said witness had been sworn and examined before the grand jury. S. v. Avant, 202 N. C., 680. The indictment as returned and entered upon the records of the court showed that there was evidence at the hearing of the bill by the grand jury, upon which the bill was returned as a “true bill.” Defendant offered no evidence to the contrary, nor did he contend that the witness whose testimony was received by the grand jury as evidence was disqualified. S. v. Sultan, 142 N. C., 569, 54 S. E., 841; S. v. Levy, 200 N. C., 586, 158 S. E., 94.
The crime charged in the second count of the consolidated indictment upon which the defendant was convicted, is defined by statute.
The issue between the State and the defendant involving the guilt or innocence of the defendant of the crimes charged in the indictment, was properly raised by defendant‘s plea of “not guilty,” after his motions to quash, and his motions addressed to the discretion of the court, had been denied. This issue was submitted to the jury upon evidence which
The defendant as a witness in his own behalf testified as follows, with respect to the reports made by him to the Corporation Commission and published in the Asheville Times:
“That is my signature on the report referred to in this trial as Exhibit P-86. The first time I ever saw that report was on the morning of 17 October, 1930. I saw it and heard it read in the directors’ room in the bank. I went from my office to the bank not knowing that the report was coming up at that time. I went in and sat down. I noticed that they were reading the report. I was called out to answer a telephone call. When I returned, the report had been read, and turned over to the secretary of the committee. That is the first time I ever
Attached to the report as published in the Asheville Times is an affidavit signed by the defendant, in which he says under oath, that the report is true to the best of his knowledge and belief.
The defendant‘s testimony, as a witness in his own behalf, shows at least that he did not know whether the report which he verified by his oath was true or not; that all that he knew was that an employee of the bank stated to him that it was a true report of the financial condition of the bank as of 24 September, 1930, as shown by its records. The statute requires that reports made by a bank to the Corporation Commission of its financial condition, in response to official calls, shall be verified by the oath of its president, vice-president, cashier, secretary or treasurer, and in addition thereto by the oaths of two directors, and that summaries of such reports, so verified, shall be published in a newspaper published in the place where the bank is located. Section 64, chap. 4, Public Laws of North Carolina, 1921, as amended.
There was no error in the trial of this action, resulting in the conviction of the defendant on the second count. He does not complain, of course, that the jury acquitted him on the first count. The judgment is supported by the verdict of guilty on the second count and is affirmed.
No error.
Brogden, J., dissenting:
The defendant was indicted upon two counts, one for making a false statement or report with intent to deceive the Corporation Commission and other corporations and persons dealing with the bank, the other for publishing in a newspaper in Asheville a false report for the purpose of deceiving the identical parties named in the first count. The jury said by its verdict that the defendant was not guilty upon the first count but guilty upon the second count. In other words, the verdict declared that the defendant had not made a false report to the Corporation Commission, but that when the “summary” of said report had been published in a newspaper, he was guilty of a felony. To state the proposition baldly, the publication of a true report lands the defendant in the penitentiary for a substantial period of time.
The verdict was wholly at variance and expressly contrary to the following instruction of the trial judge: “If you should find the defendant not guilty as to the making of said report, in the way and manner charged in the bill of indictment, then, they would not be guilty of publishing or permitting it to be published for they would have no knowledge of its falsity.” That is to say, the judge expressly and unequivocally charged the jury that if the defendant should be found not guilty on the first count, he would therefore not be guilty on the second count. It is true that in subsequent instructions to the jury a different and contrary charge was given. Which of the conflicting and antagonistic instructions did the jury follow in its deliberations? If they followed the first instruction above quoted, it was the duty of the trial judge to discharge the defendant upon the rendition of the verdict of not guilty on the first count. If they followed subsequent instructions, the verdict can be upheld. However, this position does not help the State for the reason that this Court has held in an unbroken line of decisions that a jury is not required to steer a boat through the troubled
The case has been thoroughly debated and considered, and it would serve no useful purpose to draw out the discussion, but I am still wondering how it comes about that a citizen can be sent to the penitentiary for causing to be published in a newspaper in Asheville a false report that was never made or become a felon for publishing in a newspaper a report which a jury has found by its verdict to be true, after a long and tedious trial.
Clarkson, J., concurring: I concur in the able opinion of Mr. Justice Connor. In answer to the material part of the dissenting opinion of Mr. Justice Brogden, I may say that this matter has recently been discussed by the Supreme Court of the United States by Mr. Justice Holmes in Dunn v. U. S., 52 Sup. Ct., 189. In that opinion Mr. Holmes declared that “Consistency in the verdict is not necessary. Each count is an indictment, he said, in regard as if it were a separate indictment. If separate indictments had been presented against the defendant for possession, for sale, and for maintenance of a nuisance and had been separately tried, the same evidence being offered in support of each, an acquittal on one could not be pleaded as res judicata. Where the offenses are separately charged in the counts of a single indictment, it was said, the same rule must hold, nor can it be inferred that the jury was not convinced of the defendant‘s guilt, because it reached different verdicts on different counts. That the verdict may have been the result of compromise or a mistake on the part of the jury, said Mr. Holmes, was possible. But, he held, nevertheless, that verdicts cannot be upset by speculation or conjecture, or inquiry into matters of the character described.” United States Law Review, April, 1932, p. 215; S. v. Sisk, 185 N. C., 696.