State v. Cole

• Decision Date: 13 April 1932
• Docket Number: 275.
• Parties: STATE v. COLE.
• Court: North Carolina Supreme Court

163 S.E. 594

202 N.C. 592

STATE v. COLE.

No. 275.

Supreme Court of North Carolina

April 13, 1932

Appeal from Superior Court, Robeson County; Barnhill, Judge.

C. E Cole was indicted under Code 1931, § 224 (e), for alleged false entries in the books of a bank, and, from a judgment sustaining defendant's demurrer to the bill of indictment, the State appeals.

Affirmed.

The bill of indictment contains eight counts setting forth respectively the following charges:

(1) That on 8th of October, 1929, the defendant, being assistant cashier of the Bank of Pembroke, unlawfully, willfully, and feloniously made a false entry in the teller's book of said bank as follows, to wit: $3,182.06, against the form of the statute, etc.

(2) That on the same day the defendant, being assistant cashier of said bank, unlawfully, willfully, and feloniously made a false entry of the teller's book of said bank as follows to wit, $6,148.94, contrary to the form of the statute, etc.

(3) That on the same day the defendant, being assistant cashier of said bank, did unlawfully, willfully, and feloniously make a false entry in the cash book of said bank as follows, to wit: $6,148.90, contrary to the form of the statute, etc.

(4) That on the same day the defendant, being assistant cashier of said bank, unlawfully, willfully, and feloniously made a false entry in the general ledger of said bank, as follows to wit: $6,148.80, contrary to the form of the statute, etc.

(5) That on 24th of December, 1929, the defendant, being assistant cashier of said bank, unlawfully, willfully, and feloniously made a false entry in the teller's book of said bank as follows, to wit: $12,411.97, contrary to the form of the statute, etc.

(6) That on 24th December, 1929, the defendant, being assistant cashier of said bank, did unlawfully, willfully, and feloniously make a false entry in the cash book in said bank as follows, to wit: $12,426.10, contrary to the form of the statute, etc.

(7) That on 24th December, 1929, the defendant, being assistant cashier of said bank, unlawfully, willfully, and feloniously made a false entry in the general ledger of said bank as follows, to wit: $12,426.10, contrary to the form of the statute, etc.

(8) That on the 24th December, 1929, the defendant, being assistant cashier of said bank, unlawfully, willfully, and feloniously made a false entry in the teller's book of said bank as follows, to wit: $6,233.02, contrary to the form of the statute, etc.

The defendant demurred to the bill of indictment on the following grounds: (1) That the bill of indictment fails to state a crime.

(2) That the bill of indictment fails to allege that the alleged false entries were entries among the transactions of the bank or that the said entries were material to the bank or affected its condition, and fails to allege that the said entries were not immaterial to the conditions or the operations of the bank.

(3) That the said bill of indictment is not sufficient to support a verdict.

(4) That the bill of indictment is not sufficient to protect the defendant against later indictment for the same alleged offense, if acquitted.

(5) That the said bill of indictment, in respect to the allegations as to the alleged false entries, is so indefinite and uncertain as to make the same insufficient, and that the said bill fails to allege the kind or nature of the entries alleged to be false, and fails to allege other facts and circumstances, or that the court, upon inspection of the bill of indictment, can determine that, if proved as alleged, the violation of the statute would be thoroughly constituted.

(6) That it does not appear from the allegations in the said bill of indictment whether the false entries are credits or debits, whether they are material, or whether they in any manner misrepresent the true financial condition of the bank, and the said bill of indictment fails to contain any allegation from an inspection of which the court could determine that the allegations set out in said bill, if supported by evidence, would constitute a violation of the statute under which the defendant is indicted, to wit, C. S. § 224 (e).

The court being of opinion that the bill of indictment in order to be valid must contain allegations sufficient to disclose the materiality of the alleged false entries to such an extent as will enable the court to determine whether the alleged false entries, if knowingly and falsely made, would constitute an offense, sustained the demurrer.

The State excepted, and appealed to the Supreme Court.

Dennis G. Brummitt, Atty. Gen., and A. A. F. Seawell, Asst. Atty. Gen., for the State.

Varser, Lawrence, McIntyre & Henry, of Lumberton, for appellee.

ADAMS J.

The object of the demurrer is to impeach the indictment and to forestall a prosecution on the ground that the charges against the defendant do not constitute a breach of the criminal law; the specific contention being that the indictment does not adequately inform the defendant of any accusation against him or contain averments which would enable the court to proceed to judgment in case of conviction or to protect the defendant against subsequent prosecution for the same offense. State v. Edwards, 190 N.C. 322, 130 S.E. 10.

At the session of 1927 the General Assembly repealed section 83, chapter 4, of the Public Laws of 1921 and substituted section 224 (e) of the North Carolina Code of 1931. Public Laws 1927, c. 47, § 16. The substituted section contains the following clause: "Whoever being an officer, employee, agent or director of a bank *** makes or permits to be made a false entry in a book, report, statement or record of such bank *** shall be guilty of a felony."

The indictment purports to charge the defendant with a violation of this statute; the several counts varying only as to the books in which the entries were made and in a few instances as to the dates. It is charged in each count that the defendant, being assistant cashier of the bank, "did unlawfully, willfully, and feloniously make a false entry" in a book of the bank. If the defendant were convicted upon this charge, could judgment lawfully be pronounced? To justify a judgment, the indictment must set forth a charge explicit enough to support itself; for, if all the allegations may be true and yet constitute no offense, the indictment is insufficient. State v. Eason, 70 N.C. 88. It is likewise defective if, when drafted upon a statute, it omits words descriptive of any essential element of the offense charged. State v. Liles, 78 N.C. 496; State v. Bagwell, 107 N.C. 859, 12 S.E. 254, 9 L. R. A. 840; State v. Mooney, 173 N.C. 798, 92 S.E. 610; State v. Ballangee, 191 N.C. 700, 132 S.E. 795. As a rule, it is enough to charge a statutory offense in the words of the statute, but this is not always true. It is sometimes necessary not only to pursue the technical language of the statute but to set forth the facts and circumstances which go to make up the offense. Clark's Cr. Procedure; State v. Mooney, supra.

In all criminal prosecutions every man has the right to be informed of the accusation against him; and the accusation must be definite. "Every indictment is a compound of law and fact, and must be so drawn, that the Court can, upon its inspection, be able to perceive the alleged crime." State v. Hathcock, 29 N.C. 52. This is essential to a valid judgment. In explanation of the principle, Chief Justice Ruffin used this significant language in State v Stanton, 23 N.C. 424: "Thus, a statute may be so inaccurately penned, that its language does not express the whole meaning the Legislature had; and by construction, its sense is extended beyond its words. In such a case, the indictment must contain such averments of other facts, not expressly mentioned in the statute, as will bring the case within the true meaning of the statute; that is, the indictment must contain such words as ought to have been used in the statute, if the Legislature had correctly expressed therein their precise meaning. In State v. Johnson, 12 N.C. 360, for example, it was held, that besides charging in the words of the act, that the prisoner, being on board the vessel, concealed the slave therein, the indictment should have charged a connection between the prisoner and the vessel as that he was a mariner belonging to her; because that was the true construction of the act. So, where a statute uses a generic term, it may be necessary to state in the indictment the particular species, in...