State v. Ezzard

• Citation: 18 S.E. 1025,40 S.C. 312
• Parties: STATE v. EZZARD.
• Decision Date: 13 February 1894
• Court: United States State Supreme Court of South Carolina

18 S.E. 1025

40 S.C. 312

STATE v. EZZARD.

Supreme Court of South Carolina

February 13, 1894

Appeal from general sessions circuit court of Barnwell county; J.H Hudson, Judge.

T.W Ezzard was convicted of breach of trust with fraudulent intent, and appeals. Affirmed.

The following are defendant's grounds of appeal: That the judge committed an error: (1) In stating in his charge to the jury that the defendant "saw fit, after taking advice of counsel, to stand his ground," when there is no evidence in the case warranting such a statement. (2) In charging the jury that one might commit a breach of trust by the act of counseling and advising another. (3) In charging the jury that "the heirs of Lewis Hill, owning certain lands in the state of Georgia, desired to get possession of the land or rather convert the land into money. " Well, with that view they saw fit and had to employ agents to set in motion certain agencies in order to get the facts in regard to their territory, and to effect the sale. They empowered no one to sell,--that is, to convey. There was no power of attorney. It is not pretended that there was. They employed counsel here. The legal counsel here could not spare the time and expense of going to Georgia and looking up all this land and titles thereto. They corresponded with and secured the services of this firm of gentlemen in Atlanta, and that firm, as one of them has stated to you, could not spare the time away from their office to travel in different portions of Georgia to look up the lands and to negotiate sales, and they called upon the defendant here, who it is said by this witness was probably more universally acquainted with the lands in all parts of the state of Georgia than any one he could pick up. He was engaged for his knowledge in that respect. He was selected therefor as the trusted agent, to search out and ascertain the facts in regard to these lands, and secure bids,"--when it was a material question in the case whether the Hill heirs had ever authorized or empowered any one to sell the land, or intrusted any one with the sale thereof, and there is no evidence in the case to prove that they did, but, on the contrary, the evidence is that they did not. (4) In charging the jury as follows: "He in turn spoke to others,--a Mr. Norman,--and through Mr. Norman this Mr. Perry was spoken to. Perry goes to work and makes a contract, after negotiation with Mr. Pope, who concluded he would pay a certain price for this land, ($2,500;) and the $2,500, in the shape of five checks, were intrusted to Mr Perry by Mr. Pope. Perry engaged with Mr. Ezzard to come and meet him in Augusta. The two met in Augusta, and came on to Blackville; spent a short time there. They conferred together, and conspired to cheat these people out of their money. Now, that is the testimony of Perry. That is the sum and substance of it." And in so charging his honor charged facts which there was no evidence to support; and even if the evidence sustained the charge, it was error of law to so charge upon the facts. (5) In charging the jury further as follows: "He had the $2,500 to pay for this land if the Hills would accept it. They concocted a plan by which they would get the land from the Hills for less--for $800--if they could, and pocket the balance, and make a division of it. They came over, and so managed their plans,--Ezzard and Perry,--and fooled the other parties by their false statements and false representations. They induced first the attorneys--the legal attorney--to believe that $800 was the highest bid, who also impressed that upon the Hills; and, although it was a matter of surprise,--a matter of regret,--yet, confiding in these representations the Hills made the titles as Perry drew them, and received their little pittance of the money, to wit, $400, according to the arrangement made with the attorneys here. This is a part of the representation of the facts as described a recital of the substance." And in so charging his honor is not sustained by the evidence, and committed error of law in charging the facts to the jury. (6) In charging the jury as follows: "The testimony of the state is that. You have heard, however, the testimony of Mr. Maddox as to what occurred in Atlanta after the accomplishment of this swindle; that Mr. Ezzard gave his note for $1,500; the testimony of Mr. Perry as to the division of the spoils betwixt them after the $200 had been carried to the firm of Glenn & Maddox, and $100 to Ezzard. Perry says he got $500, and the balance ($1,000, I believe it was) Ezzard got. Now, these are the facts. And, in so charging, his honor is not sustained by the evidence, and committed an error of law in charging the facts to the jury. (7) In charging the jury as follows: "I instruct you, gentlemen, that any part of that money which he got here in South Carolina, delivered into his hands for the purpose of delivering to the Hills, it was a breach of trust for him not to deliver it to the Hills if they accepted the proposition of Pope,"--when there was no evidence whatever that any money was ever delivered to him to be delivered to the Hills, but, on the contrary, the evidence was that the money in question was not delivered to him for the purpose of delivering it to the Hills, but for a totally different purpose, and he applied it to the purpose for which it was delivered to him. (8) In charging the jury as follows: "It was money that belonged to the Hills, and he and Perry were both the agents of the Hills." (9) In charging the jury as follows: "Now, when Ezzard joined Perry in Augusta, and came with him here to Blackville, and from Blackville to Barnwell, the very time that that money passed into the hands of Ezzard it passed into his hands as agent of the Hills,"--when the evidence does not sustain the facts charged, and it was error of law to charge the facts, even if the proof sustained him in so doing. (10) In charging the jury as follows: "If you believe from the evidence that that money went into his hands here, and he appropriated it to his own use, and he ought to have given it to the Hills, when he knew he ought to have given it to the Hills, he committed a breach of trust, and committed it with the deliberate intent to defraud the Hills." (11) In charging the jury as follows: "The question for you is that one hundred dollars which Ezzard appropriated here with a view to take up that check here, and Perry had no right to give to that money any other direction than the sacred trust with which it was given to him, and that sacred trust Ezzard knew, and they were united together to defraud these people of their money, and accomplished it to a large extent." And said error consists as well in charging the facts to the jury as in misstating the law on the subject under consideration. (12) In charging as follows: "I instruct you that if you are satisfied from the testimony that that one hundred dollars went into Ezzard's hands here, and it ought to have gone to the Hills, when he knew it ought to have gone to the Hills, that was a breach of trust, and he did it with a view to defraud them here in Barnwell county." (13) In refusing to charge the jury, as requested by defendant's attorney, as follows: "That to make out the crime charged in the indictment, namely, breach of trust with a fraudulent intent, three things must concur: First, a trust must have been reposed in relation to something of which the crime of larceny could be committed; second, there must have been a breach of that trust; third, the breach of trust must have been committed with a fraudulent intent." (14) In refusing to charge the jury, as requested by the defendant's attorney, as follows: "That the indictment charging that the sum of one hundred dollars was delivered by Perry to Ezzard, to be by him delivered to the Hills, and the breach of trust consisted of his failure to deliver it to the Hills, but, on the contrary, he appropriated it to his own use,--that if the jury find from the evidence that the one hundred dollars in question was not delivered to Ezzard to be by him delivered to the Hills, that then and in that event the charge laid in the indictment is not sustained by the evidence, and the defendant should be acquitted." (15) In refusing to charge the jury, as requested by defendant's attorney, as follows: "The statute under which the defendant is indicted did not create any new offense, but only extended the crime of larceny at common law to cases in which the property stolen was in the legal possession of the accused at the time of the conversion." (16) In refusing to charge the jury, as requested by defendant's attorney, as follows: "That before larceny can be committed of any property it must have come into the possession of the person from whom it is alleged to have been stolen." (17) In refusing to charge the jury, as requested by the defendant's attorney, as follows: "That joint tenants or tenants in common have not an ownership as against each other upon which an indictment for larceny can be sustained." (18) In refusing to charge the jury, as requested by defendant's attorney, as follows: "That, if the Hills never had any legal title to the money--the $100--in question, the crime charged in the indictment could not have been committed as of their goods, and that they could not have any claim or right to the money until after they conveyed the land of which it is claimed to be a part of the purchase money; and, since they received for the land all that they contracted to take, they never acquired such a title to the balance, of which the $100 in question formed a part, as will support the charge laid in the indictment, if the jury find from the evidence that such are the facts." (19) In refusing to charge the jury, as requested...