State v. Thornton
| Decision Date | 14 January 1960 |
| Docket Number | No. 724,724 |
| Citation | 251 N.C. 658,111 S.E.2d 901 |
| Court | North Carolina Supreme Court |
| Parties | STATE, v. Jim A. THORNTON. |
Malcolm B. Seawell, Atty. Gen., and T. W. Bruton, Asst. Atty. Gen., for the State.
MacRae, Cobb & Berry, Fayetteville, for defendant, appellant.
Defendant, as he had a right to do, filed in this Court a written motion in arrest of the judgment of the Superior Court, upon the ground of insufficiency of the indictment. Rule 21, Rules of Practice in the Supreme Court, 221 N.C. 544, 558; State v. Lucas, 244 N.C. 53, 92 S.E.2d 401.
It is an essential of jurisdiction that a criminal offense shall be sufficiently charged in a warrant or an indictment. State v. Wallace, N.C. 111 S.E.2d 714; State v. Nugent (Strickland) 243 N.C. 100, 89 S.E.2d 781; State v. Thorne, 238 N.C. 392, 78 S.E.2d 140; State v. Morgan, 226 N.C. 414, 38 S.E.2d 166.
This Court said in State v. Cox, 244 N.C. 57, 92 S.E.2d 413, 415: A 'defect in a warrant or bill of indictment is not cured by the statute which enables the defendant to call for a bill of particulars, G.S. 15-143. This section applies only when further information not required to be set out in the indictment is desired. The
Embezzlement was not an offense at common law. State v. Maslin, 195 N.C. 537, 143 S.E. 3; State v. McDonald, 133 N.C. 680, 45 S.E. 582; State v. Hill, 91 N.C. 561. The offense of embezzlement is entirely statutory. State v. Blair, 227 N.C. 70, 40 S.E.2d 460; State v. Whitehurst, 212 N.C. 300, 193 S.E. 657, 113 A.L.R. 740; State v. Maslin, supra; State v. McDonald, supra.
The indictment was drawn under the provisions of G.S. § 14-90. This statute makes it a felony for the class of persons specified in, and amenable to, that statute to embezzle money, goods, etc., 'belonging to any other person or corporation, which shall have come into his possession or under his care.' See State v. Blair, supra; State v. Whitehurst, supra.
It seems certain that 'The Chuck Wagon' is not a natural person.
This is said in 29 C.J.S. Embezzlement § 31b(1), In General: 'It has been held that, where the owner of the embezzled property is an association, partnership, corporation, or other firm or organization, there must be allegations showing such organization to be a legal entity capable of owning property as such or the individuals comprising the same and owning the property should be set out as owners.' Section 31b(2), Corporations, states: 'In a prosecution for embezzlement from a corporation, the indictment or information should allege its incorporation and give its corporate name as fixed by law * * *.'
An exhaustive annotation in 88 A.L.R. 485 et seq. thoroughly discusses, and cites many cases, on the question now under consideration. One line of authorities holds to the proposition that, in a prosecution for larceny or embezzlement, it is necessary to allege in the indictment that the owner of the property, if not a natural person, is a corporation or otherwise a legal entity capable of owning property. Another line of authorities is cited, where in some jurisdictions the foregoing rule has been relaxed, and which holds that where the name of the company alleged in the indictment imports an association or a corporation capable of owning property as a legal entity, it is not necessary to allege specifically that it is a corporation. See 18 Am.Jur., Section 45.
In State v. Grant, 104 N.C. 908, 10 S.E. 554, the indictment charged the larceny of a barrel of kerosene oil, the property of 'The Richmond & Danville Railroad Company.' This Court said: 'We are also of the opinion that the fact of incorporation need not be alleged, where the corporate name is correctly set out in the indictment.' The allegation in the indictment clearly imports that the owner of the property charged to have been stolen is a corporate entity capable of owning property, and was held sufficient.
In Gibson v. State, 13 Ga.App. 67, 78 S.E. 829, the Court held: 'The words 'Morning Star Colored Baptist Church' import a religious association, and such a right to the possession of property suitable for church purposes as will authorize the ownership of any property used by it which may have been stolen to be laid in such a congregation of persons.' See also Mattox v. State, 115 Ga. 212, 41 S.E. 709.
Davis v. State, 196 Ind. 213, 147 N.E. 766, 769, was a prosecution for embezzlement, and the ownership of the money allegedly embezzled was charged in the indictment as being in Newton County Farm Bureau. The Court said: ...
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