State v. . McLean

182 S.E. 700, 209 N.C. 38, 1935 N.C. LEXIS 15

• Court: Supreme Court of North Carolina
• Decided: December 11, 1935
• Status: Published

Opinion

Devin, J.

The defendant excepted to the order consolidating for trial the three bills of indictment. In this ruling there was no error. C. S., 4622, authorizes the consolidation of two or more bills “when there are several charges against any person . . . for two or more acts or transactions connected together, or for two or more transactions of the same class of crimes or offenses.” State v. Brown, 182 N. C., 761; State v. Rice, 202 N. C., 411.

Defendant’s exception to the denial of his motion for judgment of nonsuit cannot he sustained. There was evidence sufficient to he submitted to the jury. In the language of Davis, J., in State v. Fain, 106 N. C., 760: “If there was any evidence reasonably sufficient to go to the jury, its weight is a question with which this Court has nothing to do.” Embezzlement was not a common law offense. The acts constituting the offense are set forth in the statute, C. S., 4268. It has been defined by this Court as “the fraudulent conversion of property by one who has lawfully acquired possession of it for the use and benefit of the owner.” State v. McDonald, 133 N. C., 681. One of the necessary elements of the offense is the fraudulent intent. The fraudulent intent within the meaning of the statute is the intent to “embezzle or otherwise willfully and corruptly use or misapply the property of another for purposes other than that for which they are held.” State v. Lancaster, 202 N. C., 204. And since the criminality of the act depends upon the intent, it is incumbent on the State to show the intent to defraud beyond a reasonable doubt. State v. Morgan, 136 N. C., 628. Such intent may be shown by direct evidence, or by evidence of facts and circumstances from which it may reasonably be inferred. State v. Lancaster, 202 N. C., 204; State v. Rawls, 202 N. C., 397; 20 C. J., 487.

We find no error in the refusal of the court below to permit the defendant to answer the question “whether or not the Central Carolina Oil Company, Inc., got value received for every dollar represented for that check.” The evidence discloses that the defendant was permitted to and did testify fully as to all the facts of the transaction, and the question propounded is rather a conclusion than a statement of fact.

The other exceptions to the evidence are without merit.

Defendant made exceptions to the- charge of the court for failure to charge as to the element of fraudulent intent, but upon an examination of the charge of the able and careful judge, we find that this was sufficiently called to the attention of the jury.

The other exceptions to the charge were to statements of contentions of the State and defendant, and these not having been called to the attention of the court at the time, are not now available to the defendant.

Upon a careful examination of the record, we find no reversible error in the trial:

No error.