State v. . Tennant

22 S.E.2d 552, 222 N.C. 277, 1942 N.C. LEXIS 81

• Court: Supreme Court of North Carolina
• Decided: November 11, 1942
• Status: Published

Opinion

Barnhill, J.

Defendant’s assignment of error, based on bis exception to tbe refusal of tbe court to dismiss as of nonsuit under 0. S., .4643, cannot be sustained. Tbe evidence, wben considered in tbe light most favorable to tbe State, tends to show a deliberate scheme on tbe part of tbe defendant and bis associate to obtain possession of merchandise under tbe guise of tona fide retail dealers, to surreptitiously remove it from tbe State, convert tbe proceeds to their own use and then to depart tbe State and tbe jurisdiction of its courts. They were temporarily successful in their scheme but were later apprehended and put on trial. Now that defendant is brought to tbe bar of justice be cannot successfully challenge tbe sufficiency of tbe evidence against him.

Defendant tendered certain prayers for instruction to tbe effect that tbe jury could not convict unless they found that this defendant bad actual knowledge of tbe prior verbal agreement and of tbe nature, kind and quantity of merchandise delivered thereunder at tbe time be signed tbe written agreement. He excepts • for that tbe court declined to so instruct tbe jury.

Tbe assignment cannot be sustained. Tbe scienter, the guilty knowledge and intent, must exist at tbe time of tbe commission of tbe offense. It matters not wben acquired so long as tbe defendant acted knowingly and feloniously at tbe time.

On this aspect of tbe case tbe court charged tbe jury in simple and understandable language that before they could convict tbe defendant they must find beyond a reasonable doubt that tbe merchandise was delivered and being held on a consignment agreement; that tbe defendant acquired and bad actual knowledge that they were being so held; that with such knowledge be converted some or all of said merchandise to bis own use or misapplied it “to such an extent that rendered it impossible for tbe owner thereof to again get possession of it”; and that at tbe time be so converted, or misapplied it, “be bad tbe felonious and fraudulent intent to convert it to bis own use and to misapply it to such an extent that tbe owner would be permanently deprived of tbe property.” As defendant was a copartner this is as favorable to tbe defendant as be bad any right to demand. S. v. Summers, 141 N. C., 841; S. v. Shipman, 202 N. C., 518, 163 S. E., 657; S. v. Pace, 210 N. C., 255, 186 S. E., 366.

Certain other exceptions are directed to alleged error in tbe admission of evidence relating to tbe codefendant. This evidence was for impeachment and affected C. ~W. Tennant only. Even if incompetent — and it was not — this defendant cannot complain.

In bis argument here defendant made some reference to alleged deficiencies in tbe bill of indictment. However, there was no motion to quash or in arrest of judgment either here or in the court below. Tbe sufficiency of tbe bill is not challenged.

Other exceptions appearing in the record are not of such merit as to require discussion. In the trial below we find

No error.