State v. Ellis, 779SC62

Citation33 N.C.App. 667,236 S.E.2d 299
Decision Date20 July 1977
Docket NumberNo. 779SC62,779SC62
CourtCourt of Appeal of North Carolina (US)
PartiesSTATE of North Carolina v. Bruce E. ELLIS.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Joan H. Byers, Raleigh, for the State.

Rogers & Senter by Bobby W. Rogers, Henderson, for defendant.

BROCK, Chief Judge.

Defendant first assigns error to the trial court's denial of his motion for directed verdict at the close of State's evidence. As ground for his motion defendant argued a fatal variance between the indictment and proof. The indictment placed ownership of the embezzled funds in the "Provident Finance Company." Evidence educed at trial placed ownership of the funds in the "Provident Finance Company of Henderson, Inc." Defendant contends the difference in names constitutes a fatal variance. We disagree.

In an indictment for embezzlement it is necessary to allege ownership of the property in a person, corporation, or other legal entity able to own property. Where the property belongs to a corporation: ". . . the name of the corporation should be given, and the fact that it is a corporation stated, unless the name itself imports a corporation." State v. Thornton, 251 N.C. 658, 662, 111 S.E.2d 901, 903 (1960). General Statute, Chap. 55, Business Corporations Act, Art. 3, Formation, Name and Registered Office, Section 55-12, Corporate name, states: "The corporate name shall contain the wording 'corporation,' 'incorporated,' 'limited' or 'company' or an abbreviation of one of such words." The words "Provident Finance Company" clearly import a corporation; therefore, as to placing ownership in a corporate entity, the indictment is sufficient.

The issue then is whether the variance between "Provident Financing Company" and "Provident Finance Company of Henderson, Inc." is so material as to be fatal. We hold that it is not. The defendant was adequately informed of the corporation which was the accuser and victim. A variance will not be deemed fatal where there is no controversy as to who in fact was the true owner of the property. State v. Wyatt, 254 N.C. 220, 118 S.E.2d 420 (1961).

Defendant next assigns as error the admission of testimony of State's witness Allen. Allen testified concerning a loan transaction in which he made final payment on his account and received a paid-in-full receipt from defendant. Allen's payment was not applied to his loan account. Defendant argues that the State should be restricted to proof of the transactions set out in the indictment and that since the dates of the transactions testified to by Allen were not included in those listed in the indictment, admission of the testimony was error. Defendant's argument is without merit.

Where time is not of the essence in the crime charged, an indictment charging the crime is not defective when the date is left out. State v. Tessnear, 254 N.C. 211, 118 S.E.2d 393 (1961). Embezzlement in violation of G.S. 14-90 requires the establishment of four elements: (1) that the defendant was the agent of the prosecutor; (2) that by the terms of his employment he was to receive the property of his principal; (3) that he received the property in the course of his employment; and (4) knowing it was not his own, converted it to his own use or fraudulently misapplied it. State v. Buzzelli, 11 N.C.App. 52, 180 S.E.2d 472 (1971); State v. Smithey, 15 N.C.App. 427, 190 S.E.2d 369 (1972). There was sufficient evidence presented to prove the elements necessary to establish the crime charged in the bill of indictment. Furthermore, the indictment expressly stated that transactions constituting the alleged embezzlement occurred between 6 July 1970 and 7 May 1974. The transactions testified to by Allen occurred within the period stated in the indictment. The defendant had ample notice of the time frame upon which the State relied. If defendant had wanted more information than that provided in the indictment, it was his obligation to request a bill of particulars. State v. Cox, 244 N.C. 57, 92 S.E.2d 413 (1956).

Defendant next assigns error to the trial court's refusal to declare a mistrial. The prosecutor, in cross-examining the defendant, asked the following question: "And these were the 90 day account cards that you had to embezzle some money from to pay off delinquent loans?" (Emphasis added.) The defendant's objection was immediately sustained by the trial court. Defendant moved for mistrial. The trial judge denied the motion but immediately thereafter admonished the jury to disregard the prosecutor's remark. The defendant argues that the prosecutor's use of the word "embezzle" was so inflammatory as to require a mistrial. We disagree. The trial judge moved swiftly to excise any prejudicial effect of the prosecutor's question. The conduct of the trial rests in the discretion of the trial court. State v. Lindsey, 25 N.C.App. 343, 213 S.E.2d 434 (1975). The ruling denying the motion for mistrial was sound and in no way evidences an abuse of discretion.

The defendant next assigns as error the trial court's failure to submit a requested charge to the jury. In substance the requested charge stated that evidence as to defendant's reputation for honesty and fair dealing, his financial condition, and the absence of any large expenditures by him should be considered by the jury in determining guilt or innocence. This assignment of error is without merit.

The court need not give a requested instruction which is not germane to the issue. State v. Smith, 202 N.C. 581, 163 S.E. 554 (1932). The purpose of the instruction requested was to place in counterpoise defendant's evidence of a frugal life with the prosecution's evidence that defendant converted the allegedly embezzled funds to his own use. In the present case the State did not attempt to prove that defendant converted and spent the missing funds on himself. The State's evidence tended to show that defendant misapplied the funds within the company to reduce bad debt accounts and thereby protect his job and enhance his income under the company profit sharing plan. The requested instructions were inappropriate in that they applied to a situation not at issue in the trial.

The defendant next contends that the trial court, in its recapitulation of the evidence, unduly stressed the State's case to the prejudice of the defendant. The fact that the trial court in a complicated case consumes more time in recapitulating the State's evidence than that of the defendant does not constitute an expression of opinion on the evidence. State v. Murray, 21 N.C.App. 573, 205 S.E.2d 587 (1974). After reviewing the record in light of the charge, we find no undue weight given to the State's evidence.

The defendant next assigns as error the trial court's...

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16 cases
  • Ellis v. Reed, 78-6175
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • April 25, 1979
    ...a finance company. On direct appeal to the North Carolina Court of Appeals, the court found no error in the trial. State v. Ellis, 33 N.C.App. 667, 236 S.E.2d 299 (1977). Discretionary review was denied by the Supreme Court of North Carolina. The district court denied appellant's petition f......
  • State v. Sutton, 811SC95
    • United States
    • Court of Appeal of North Carolina (US)
    • August 4, 1981
    ...in the course of his employment; and (4) he must convert the property to his own use knowing it not to be his own. State v. Ellis, 33 N.C.App. 667, 236 S.E.2d 299, cert. denied, 293 N.C. 255, 236 S.E.2d 708 (1977); State v. Buzzelli, 11 N.C.App. 52, 180 S.E.2d 472, cert. denied, 279 N.C. 35......
  • State v. Fink, COA16-934
    • United States
    • Court of Appeal of North Carolina (US)
    • March 21, 2017
    ...will not be deemed fatal where there is no controversy as to who in fact was the true owner of the property." State v. Ellis , 33 N.C.App. 667, 669, 236 S.E.2d 299, 301 (1977) (citation omitted); see also State v. Wilson , 264 N.C. 595, 597-98, 142 S.E.2d 180, 181-82 (1965) (finding no erro......
  • State v. Spivey, COA14–1046.
    • United States
    • Court of Appeal of North Carolina (US)
    • April 7, 2015
    ...272, 273 (2004) (larceny); State v. Woody, 132 N.C.App. 788, 789–90, 513 S.E.2d 801, 802–03 (1999) (conversion); State v. Ellis, 33 N.C.App. 667, 669, 236 S.E.2d 299, 301 (1977) (embezzlement). However, other crimes involving property do not have this requirement. See, e.g., State v. Norman......
  • Request a trial to view additional results

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