State v. Davis
| Citation | 164 S.E. 732,203 N.C. 47 |
| Decision Date | 15 June 1932 |
| Docket Number | 584. |
| Parties | STATE v. DAVIS. |
| Court | United States State Supreme Court of North Carolina |
Appeal from Superior Court, Buncombe County; Barnhill, Judge.
Wallace B. Davis was convicted of making and publishing a false report and statement respecting a bank's financial condition, and he appeals.
No error.
Repeals by implication are not favored, and the repugnancy between the later and the former act must be wholly irreconcilable in order to work a repeal of the former.
See also, 164 S.E. 737.
The defendant, Wallace B. Davis, the president, and J. A Sinclair and C. N. Brown, directors, of the Central Bank & Trust Company, of Asheville, N. C., were tried at April special term, 1931, of the superior court of Buncombe county on indictments for violations of the banking laws of this state. The indictments were returned at March term, 1931, and April term, 1931, of said court, respectively. Each indictment contains two counts, which are substantially identical, respectively, in words and in legal effect. The indictments were consolidated by order of the trial court. The defendants were tried on their plea of "not guilty," to the consolidated indictment.
In the first count in the consolidated indictment, it is charged that defendants, "being officers and/or directors of the Central Bank & Trust Company, a banking corporation organized and existing under the banking laws of the State of North Carolina, with its banking house at Asheville, N. C., and at said date receiving deposits of money, with force and arms at and in said county and State, with intent to defraud or injure said bank and with the intent and purpose to deceive the Corporation Commission of North Carolina, its examiners and agents appointed to examine the affairs of said bank, and other corporations and persons dealing with said bank, with respect to the true financial condition of said bank, on or about the 18th day of October, 1930, unlawfully, willfully, knowingly, fraudulently and feloniously, in response to an official call from said Corporation Commission of North Carolina, for a report of the condition of said bank as of September 24th, 1930, did make (and knowingly permit to be made) a false report to said Corporation Commission of North Carolina, with respect to the financial condition of the aforesaid bank, and did knowingly, falsely, fraudulently and feloniously report to said Corporation Commission of North Carolina that the overdrafts of said bank on the 24th day of September 1930, amounted to $71,704.92, when in truth and in fact the said overdrafts on said date amounted to $181,840.68, and did also on said date falsely, knowingly, fraudulently and feloniously report to the said Corporation Commission of North Carolina that the deposits due public officials on the said 24th day of September, 1930, were $5,432,039.69, when in truth and in fact the deposits due public officials on said 24th day of September 1930, were $7,294,352.98; and did further on said date knowingly, falsely, fraudulently and feloniously report to the said Corporation Commission of North Carolina that the amount due from approved depository banks on the said 24th day of September, 1930, was $2,325,382.99, when in truth and in fact the correct amount due from approved depository banks on said date was $153,684.10, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State."
In the second count in the consolidated indictment, it is charged that the said defendants, "being officers and/or directors of the Central Bank and Trust Company, a banking corporation organized under the laws of the State of North Carolina, with its banking house at Asheville, N. C., and on said date receiving deposits of money, with force and arms at and in the said county and State, with intent to defraud or injure said bank and with the intent and purpose to deceive the Corporation Commission of North Carolina, its examiners and agents appointed to examine the affairs of said bank and other persons and corporations dealing with said bank, on or about the 18th day of October, 1930, unlawfully, wilfully, knowingly, fraudulently and feloniously did make, utter and publish (and knowingly permit to be made, uttered and published) in the Asheville Times, a newspaper published in the aforesaid County of Buncombe, a false report and statement with respect to the financial condition of the aforesaid bank as of September 24th, 1930, which said false statement so published as aforesaid was to the effect that the overdrafts in said bank on the said 24th day of September 1930, amounted to $71,704.92, when in truth and in fact said overdrafts on the said date amounted to $181,840.68; that the deposits due public officials on the 24th day of September, 1930, were $5,432,039.69, when in truth and in fact deposits due public officials on said date were $7,294,352.90; that the amount due said bank from approved depository banks on the said 24th day of September, 1930, was $2,325,382.99, when in truth and in fact the correct amount due on said date from approved depository banks was $153,684.10, and (that the amount of deposits subject to check, for which the said bank was liable was $5,382,672.77, when in truth and in fact said amount was $2,037,909.89), contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State."
Certain items with respect to which it was charged in the indictment that the reports made to the corporation commission, and published in the Asheville Times, respectively, were false and fraudulent, were eliminated from the consideration of the jury, as the result of rulings made by the court, on motions of defendants, during the progress of the trial.
The verdict returned by the jury was as follows: "Not guilty, as to defendants, J. A.
Sinclair and C. N. Brown; not guilty as to defendant, Wallace B. Davis, on the first count, but guilty on the second count."
The record shows that on the return of the verdict, questions were addressed to the jury by the court and answered as follows:
The verdict was thereupon recorded as returned by the jury.
From judgment that the defendant, Wallace B. Davis, be confined in the state's prison for a term of not less than five or more than seven years, the said defendant appealed to the Supreme Court.
R. R. Williams, A. Hall Johnston, and Geo. M. Pritchard, all of Asheville, for appellant.
Dennis G. Brummitt, Atty. Gen., and A. A. F. Seawell, Asst. Atty. Gen., for the State.
The defendant, Wallace B. Davis, before pleading to the indictments which were thereafter consolidated by order of the court, as authorized by statute (C. S. Supp. 1924, § 4622), challenged their legal sufficiency by motions to quash. These motions were made in apt time (State v. Barkley, 198 N.C. 349, 151 S.E. 733, and State v. Paramore, 146 N.C. 604, 60 S.E. 502), and properly presented to the court defendant's contention that the indictments were not legally sufficient: (1) Because neither of the indictments was returned by a duly constituted grand jury; (2) because no evidence was presented to the grand jury at the hearing of the bills of indictment which were returned as "true bills"; and (3) because the counts in both indictments were bad for duplicity. The motions to quash were denied, and defendant duly excepted. On his appeal to this court, defendant contends that there was error in the denial of his motions to quash the indictments. These contentions cannot be sustained.
The question presented by defendant's first motion to quash is whether the grand jury which was duly drawn, sworn, and impaneled at the January term, 1931, of the superior court of Buncombe county, was a duly constituted grand jury at the March term, 1931, and at the April term, 1931, of said court. The indictments show on their face that they were returned by the grand jury at these terms, respectively. It was admitted that no grand jury was drawn, sworn, or impaneled at either of said terms, and that both the indictments were returned at said terms by the grand jury which was drawn, sworn, and impaneled at January term, 1931.
It is provided by section 1 of chapter 321 of the Public Local Laws of North Carolina 1919 that "the grand juries drawn in the Superior Court for the county of Buncombe in July and January of each and every year hereafter shall be and constitute the grand jury for each and every term of the Superior Courts where a grand jury is authorized by the law for the fall and spring terms of the court held in said county, and no other grand jury shall be drawn during said fall and spring terms." This public local statute applicable by its terms only to Buncombe county, was ratified on March 4, 1019, and became effective from and after its ratification. The statute has not been repealed or modified, and is now in full force and effect. The contention that the statute was repealed by section 8106 of the Consolidated Statutes of North Carolina 1919, cannot be sustained. The language of said section does not show expressly or by necessary implication that it was the intention of the General Assembly to repeal the statute. It shows the contrary. Repeals by implication are not favored by the law, and it is the policy of the courts to avoid such construction unless repugnancy between a subsequent statute and one of prior date be irreconcilable. Williams-Fulghum Lumber...
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