State v. . Whitley

Nov 1, 1935

Versions:208 N.C. 661

182 S.E. 338

1935 N.C. LEXIS 90

Stacy, O. J.

Outside of the technical questions, presently to be considered, the case upon trial narrowed itsеlf principally to issues of fact determinable alone by the jury.

Under the motion to nonsuit, the defendants sаy the record discloses a fatal variance between the indictment and the proof, in that the ownership of the property is laid in “Cannon Mills Company,” whereas the State’s evidence tends to show the stolen goods to be the property of “Cannon Mills.” S. v. Harris, 195 N. C., 306, 141 S. E., 883; S. v. Harbert, 185 N. C., 760, 118 S. E., 6; S. v. Gibson, 170 N. C., 697, 86 S. E., 774. It appears from an examination of the record that the *663 witnesses used tbe two expressions interchangeаbly, meaning each time “Cannon Mills Company” when tbe abbreviated expression “Cannon Mills” was employed. Tbe difference was not mooted on trial. It seems a clear case of idem sonans. S. v. Drakeford, 162 N. C., 667, 78 S. E., 308; S. v. Hester, 122 N. C., 1047, 29 S. E., 380.

Tbe next position tаken by tbe defendants is, tbat tbe second count in tbe bill of indictment ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍is fatally defective, in tbat tbe names of tbе defendants are not repeated in charging tbe scienter. S. v. McCollum, 181 N. C., 584, 107 S. E., 309; S. v. May, 132 N. C., 1020, 43 S. E., 819; 3. v. Phelps, 65 N. C., 450. This is a refinement which tbe act of 1811, now C. S., 4623, sought to remеdy. S. v. Parker, 81 N. C., 531. It provides against quashal for informality if tbe charge be plain, intelligible, and explicit, and sufficient matter appear in tbe bill to enable tbe court to proceed to judgment. S. v. Beal, 199 N. C., 278, 154 S. E., 604. Tbe exception is too attenuate. S. v. Lemons, 182 N. C., 828, 109 S. E., 27; S. v. Francis, 157 N. C., 612, 72 S. E., 1041.

Speaking to tbe subject in S. v. Shade, 115 N. C., 757, 20 S. E., 537, Avery, J., delivering tbe opinion оf tbe Court, said: “The trend of judicial decision and tbe tendency of legislation is towards tbe practical view tbat objections founded upon mere matter of form should not be considered by tbe courts unless thеre is reason to believe tbat a defendant has been misled by tbe form of tbe charge, or was not apprised by its terms of tbe nature of tbe offense which be was held to answer. "Where tbe defendant thinks tbat аn indictment, otherwise objectionable in form, fails to impart information sufficiently specific as to tbe nature of tbe charge, be may before trial move tbe court to order tbat a bill of particulars be filed, and tbe court will not arrest tbe judgment after verdict where be attempts to reserve bis fire until be tаkes first tbe chance of acquittal. S. v. Brady, 107 N. C., 826.”

Tbe point is also made by tbe defendant Cook tbat tbe evidenсe tends to show embezzlement, rather than larceny, on tbe part of John Allman, be being foreman of tbe waste-house of tbe Cannon Mills, and, therefore, it is contended, tbe charge of receiving must fail. In reрly to this suggestion, it is sufficient to say tbe fact tbat Allman was ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍employed by tbe Cannon Mills Company as foreman оf tbe waste-house did not change bis theft of tbe goods from larceny to embezzlement. Tbe goods were not taken from tbe waste-house. They were sometimes concealed in tbe waste-house at night аfter they bad been purloined elsewhere. But Allman at no time bad lawful possession of tbe propеrty.

Tbe final objection taken by tbe defendants is to tbe order of tbe court, made out of term and out of tbe county and at tbe time tbe eases were settled on appeal, directing tbe clerk to correct bis entry as to tbe verdict against tbe defendants Whitley and Cook. It seems tbat tbe entry *664 made at tbе trial was simply “guilty of receiving as to R. M. Cook, A. W. Whitley,” whereas the verdict as returned by the jury was “guilty of receiving stolen goods knowing them to have been stolen as to R. M. Cook, A. W. "Whitley.” The objection is not to the substance of the change (S. v. Brown, 203 N. C., 513, 166 S. E., 396), but to the manner and time of the correction.

If the matter were material we would be disposed to sustain the objection, for it hаs been the uniform holding in this jurisdiction that, except by consent, or unless otherwise authorized, a judge of the Superior Court, even in his own district, has no authority to hear a cause, or to make an order substantially аffecting the rights of the parties, outside the county in which the action is pending. Bisanar v. Suttlemyre, 193 N. C., 711, 138 S. E., 1. Still this would not work a new trial of the cause, but simply ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍an order of remand to have the correction properly made. S. v. Brown, supra; Summerlin v. Cowles, 107 N. C., 459, 12 S. E., 234. Howevеr, the change in the instant case is not regarded as material or needed. S. v. Kinsauls, 126 N. C., 1095, 36 S. E., 31. The record as a whole reveals the clear intent of the jury.

It is the rule with us, both in civil and criminal actions, that a verdict may be givеn significance and correctly interpreted by reference to the pleadings, the facts in evidеnce, admissions of the parties, and the charge of the court. S. v. Snipes, 185 N. C., 743, 117 S. E., 500; S. v. Brame, 185 N. C., 631, 116 S. E., 164; S. v. Gregory, 153 N. C., 646, 69 S. E., 674; S. v. Long, 52 N. C., 24; Pierce v. Carlton, 184 N. C., 175, 114 S. E., 13; Kannan v. Assad, 182 N. C., 77, 108 S. E., 383; Howell v. Pale, 181 N. C., 117, 106 S. E., 454; Reynolds v. Express Co., 172 N. C., 487, 90 S. E., 510; Bank v. Wilson, 168 N. C., 557, 84 S. E., 866. Tested by this standard, it would seem that the vеrdict ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍as recorded is sufficient to support the judgments. S. v. Gregory, supra. Only in case of uncertainty or ambiguity in the verdict is a venire de novo to be ordered. By correct interpretation, the present record makes certain that which otherwise might be doubtful. Short v. Kaltman, 192 N. C., 154, 134 S. E., 425; Sitterson v. Sitterson, 191 N. C., 319, 131 S. E., 641.

Nothing was said in S. v. Lassiter, ante, 251; S. v. Barbee, 197 N. C., 248, 148 S. E., 249; S. v. Snipes, supra; S. v. Shew, 194 N. C., 690, 140 S. E., 621, or S. v. Whitaker, 89 N. C., 472, which militates against our present position. All of these cases, properly interpreted, are accordant herewith. In none of them was the record capable of interpretation so as to support the judgment. Newbern v. Gordon, 201 N. C., 317, 160 S. E., 182. Here, the situation is just the reverse. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Nevertheless, the admonition given in S. v. Whitaker, supra, would seem to be apropos: “To avoid embarrassment in cases like this, it would be well to follоw *665 tbe suggestion of Mr. Bisbop, ‘that in every case of a verdict rendered, the judge or prosecuting officer, or both, should look after its form and its substance, so far as to prevent a doubtful or insufficient finding from passing into the records of the court, to create embarrassment after-wards, and perhaps the necessity of a new trial.’ 1 Bish. Or. Pro., sec. •831.”

The record is free from reversible error; hence the verdict and judgments must be upheld.

No error.