State v. Blackley
| Citation | 50 S.E. 310,138 N.C. 620 |
| Parties | STATE v. BLACKLEY. |
| Decision Date | 28 March 1905 |
| Court | United States State Supreme Court of North Carolina |
Appeal from Superior Court, Wake County; Ferguson, Judge.
James C. Blackley was convicted of embezzlement, and he appeals. Affirmed.
Where an indictment for embezzlement alleged that defendant was not an apprentice, nor under 16 years of age, to negative an exception in the statute under which it was drawn, such allegations were not a part of the offense which the state was required to prove.
J. C L. Harris, S. G. Ryan, and F. S. Spruill, for appellant.
The Attorney General, for the State.
The defendant was convicted of embezzlement. There was evidence that the defendant entered into a contract in Georgia with one McAdow, by which he agreed to take a car load of mules to Raleigh, N. C., and sell them for McAdow, and, after deducting all expenses from gross receipts, the defendant was to receive one-half of net profit as his compensation; that the defendant brought several car loads of mules and horses to Raleigh, and sold them as agent of the prosecutor, McAdow and at the termination of the business he was "short" in his returns $4,212.55. The defendant introduced no evidence, but asked the court to instruct the jury that, upon the whole evidence, they should return a verdict of not guilty. The defendant contends that nine points or defenses are raised by his demurrer to the evidence:
(1) For that the contract appeared to have been made in Atlanta, Ga and therefore the defendant cannot be convicted of embezzlement under that contract in the courts of North Carolina.
The evidence tends to show an embezzlement in Raleigh, N. C., since the conversion into money took place here, and the sum thus realized for prosecutor has not been paid over to him. Besides, if the crime charged, if proved, was not committed in this state, that is a matter of defense, to be affirmatively shown by defendant (State v. Mitchell, 83 N.C. 674; State v. Buchanan, 130 N.C. 660, 41 S.E. 107; State v. Burton [at this term], 50 S.E. 214), and could not be raised by a demurrer to the state's evidence.
(2) For that there was a fatal variance between the allegation of the bill of indictment and the proof offered, in that the bill alleged that the defendant was not an apprentice, nor under the age of 16 years, and in the testimony offered, all of which is sent up, there is to be found no word of proof as to either of these material averments.
It is not correct to say there was no evidence that the defendant was above the age of 16. There was no oral evidence on the point, but the defendant was in court, and the jury had a right to use their eyes, and draw their own inference that he was not shielded from responsibility by being a child, especially as there was no prayer to instruct the jury that he was not shown to be over 16, upon which the judge would have allowed evidence to be introduced upon the point to avoid a defeat of justice. State v. Holder, 133 N.C. 712, 45 S.E. 862; State v. Williams, 129 N.C. 582, 40 S.E. 84. While the indictment must charge that the defendant was not an apprentice, nor under the age of 16 years (State v. Lanier, 88 N.C. 658), yet it is not an act constituting a part of the transaction which the state is called on to prove. It is a status peculiarly within the knowledge of the defendant, like nonmarriage in indictments for fornication and adultery, which, though charged in the bill, if denied is a defense to be shown by defendant. State v. McDuffie, 107 N.C. 888, 12 S.E. 83; State v. Peeples, 108 N.C. 769, 13 S.E. 8; State v. Cutshall, 109 N.C. 769, 14 S.E. 107, 26 Am. St. Rep. 599. When the status of defendant, as being under a given age or married, by the terms of the statute, would withdraw the defendant from responsibility, while the indictment must negative such status, the status is a defense in the nature of a confession and avoidance, which must be shown by the defendant. State v. McDuffie, supra. The state is not called upon to prove negative averments of this nature. Cook v. Guirkin, 119 N.C. 17, 25 S.E. 715. On indictments for retailing without license, though the indictment should aver selling "without license," the burden is on the defendant to show that he had a license, because, like the above allegations, "not being an apprentice nor under 16 years of age," it is a matter peculiarly within the defendant's knowledge, and susceptible of ready proof by him. State v. Emery, 98 N.C. 668, 3 S.E. 636; State v. Smith, 117 N.C. 809, 23 S.E. 449; State v. Holmes, 120 N.C. 576, 26 S.E. 692. In like manner, upon an indictment for entering upon land without license, the negative averment must be made in the bill, but the burden is upon the defendant to show that he had license. State v. Glenn, 118 N.C. 1194, 23 S.E. 1004. In Ohio, where, on a charge for embezzlement upon a statute containing a similar exception, the judge was asked to charge that, there being no evidence that the defendant was under 18 years, the jury should acquit, his refusal to so charge was held no error; the negative averment of such matter peculiarly within the knowledge of the defendant being a matter of defense, to withdraw him from liability for acts in themselves constituting a criminal offense, unless excused by the status of defendant. Grillo v. State, 2 Ohio S. & C. P. Dec. 208, 9 Ohio Cir. Ct. R. 394, 6 O. C. D. 90; 18 Cent. Dig. 732. The evidence showed that the defendant came into possession of the property by virtue of contract, and was the agent, not the apprentice, of the owner thereof.
(3) For that there was no sufficient evidence that the funds were ever embezzled at all; it appearing that the defendant at no time ever rendered a false account of his dealings, or made denial of his obligation to the prosecutor.
(4) For that the ownership of the property alleged to have been embezzled was, as appears from the evidence, partially in the defendant, and hence he could not be convicted of embezzling that of which he...
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