State v. Block

97 S.E.2d 243, 245 N.C. 661, 1957 N.C. LEXIS 642

• Court: Supreme Court of North Carolina
• Decided: March 20, 1957
• Docket: 220
• Status: Published

Opinion

WiNBORNE, C. J.

The sole assignment of error presented on this appeal is based upon exception to the denial by the trial court of motion of defendant for judgment as in case of nonsuit. G.S. 15-173.

In this connection the statute, G.S. 14-90, under which defendant is indicted and convicted, provides in pertinent part that “If . . . any agent ... of any person shall embezzle or . . . knowingly and willfully . . . convert to his own use . . . any money . . . belonging to any other person . . . which shall have come into his possession or under his care, he shall be guilty of a felony, and shall be punished as in cases of larceny.”

This statute, G.S. 14-90, has been the subject of numerous decisions of this Court, notably: S. v. Hill, 91 N.C. 561; S. v. McDonald, 133 N.C. 680, 45 S.E. 582; S. v. Blackley, 138 N.C. 620, 50 S.E. 310; S. v. Gulledge, 173 N.C. 746, 91 S.E. 362; S. v. Eubanks, 194 N.C. 319, 139 S.E. 451; S. v. Gentry, 228 N.C. 643, 46 S.E. 2d 863.

In the light of the provisions of this statute, as interpreted and applied by this Court, in order to convict a defendant of embezzlement, as declared in opinion by Clark, C. J., in S. v. Blackley, supra, “four distinct propositions of fact must be established: (1) that the defendant was the agent of the prosecutor, and (2) by the terms of his employment had received property of his principal; (3) that he received it in the course of his employment; and (4) knowing it was not his own, converted it to his own use.” To like effect is decision in S. v. Eubanks, supra, citing other cases.

Now, defendant stressfully contends that when the evidence offered upon the trial below is tested by these elements necessary to constitute embezzlement the State has failed to make out such a case against him.

In this connection it is well settled rule of law in this State that in considering a motion for judgment as in case of nonsuit in a criminal prosecution, the evidence must be taken in the light most favorable to the State, and if when so taken there is any competent evidence to support the allegation of the bill of indictment, the case is one for 'the jury. And, on such motion the State is entitled to the benefit of every reasonable inference that may be fairly deduced from the evidence. See S. v. Gentry, supra, and cases cited.

Applying this rule the present case is not free from difficulty. Yet, this Court holds that there is evidence tending to show, or from which reasonable inferences may be drawn as tending to show every essential element which so enters into the crime of embezzlement within the purview of the statute, G.S. 14-90. Hence the motions for judgment as in case of nonsuit were properly denied.

No error.