State v. Franks, 584
| Decision Date | 12 June 1964 |
| Docket Number | No. 584,584 |
| Citation | 262 N.C. 94,136 S.E.2d 623 |
| Parties | , Blue Sky L. Rep. P 70,646 STATE, v. Jack W. FRANKS. |
| Court | North Carolina Supreme Court |
Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Harry W. McGalliard, and Asst. Atty. Gen. Richard T. Sanders, for the State.
Butler, High & Baer, by L. Sneed High, Fayetteville, for defendant appellant.
Defendant assigns as error the admission in evidence, over his objection, of seven volumes containing a loose-leaf record of sales of debentures of Franks' Finance Company to certain persons, which were marked State's Exhibits 1 through 7, both inclusive. Defendant contends these volumes were improperly admitted in evidence, for the reason the State did not properly identify and authenticate them.
The first witness for the State was E. B. Rannells, Jr., who lives in Sanford, North Carolina, and was employed by Franks' Finance Company from the middle of June 1955 through September 1959. He testified in substance: He was employed as a salesman to sell burial lots from the beginning of his employment through the early part of 1957; after that he sold debentures. He was shown seven volumes by Mr. Rollins, a prosecuting officer for the State, which were marked for identification State's Exhibits 1, 2, 3, 4, 5, 6, and 7, and asked to look at them and state what they were, if he knew. He replied they were records of debenture sales for Franks' Finance Company, and that he had seen them before in the office of Franks' Finance Company on Davie Street in the city of Greensboro. That these volumes were loose-leaf records of debenture purchases from Franks' Finance Company by various individuals. The volume marked State's Exhibit 6, on page 142, contains a record of a $1,000 debenture sold by him to Mrs. Estelle Day Clayton; on page 122 of the same volume appears a record of a sale on 3 January 1958 by him of a $100 debenture to Dr. Ernest H. Reynolds; on page 278 of the volume marked State's Exhibit 7 appears a record of a sale by him of a $2,000 debenture to Lloyd E. Watson; and on page 588 of the volume marked State's Exhibit 5 appears a record of a sale made by him to a Marshall B. McBryde. Jack W. Franks was the president of Franks' Finance Company during the period of his employment.
At this point in his testimony the State was permitted, over defendant's objection, to introduce these seven volumes in evidence. Immediately thereafter Rannells, after stating that Mrs. Jettie Franks was an officer of the company during his period of employment, testified: 'Mr. Franks, the defendant, signed my compensation with the company and gave me instructions in reference to my employment; Mr. Franks was my boss.'
This is the substance of his testimony on cross-examination, except when quoted: He never worked in the Greensboro office. 'No records were kept under my supervision except my own personal records.' He did not participate in the making of any of these records marked State's Exhibits 1 through 7 and did not make any entries in them. The only part of these records that he inspected were those that related specifically to him. He first inspected these volumes of records in their entirety in the municipal court in the city of Greensboro. 'I had seen Jack W. Franks sign one of these debentures. I had stated in recorder's court that 'I have seen him sign a lot of checks, but, actually, I never saw him sign debentures."
Rannells testified in substance on redirect examination: During the period of his employment he attended a sales meeting in the office practically every Monday. Defendant Franks was always there. He waited to get signed debentures and carried them away and delivered them.
The next witness for the State was James Darrell Lemons, a debenture salesman with Franks' Finance Compay from March 1961 to August 1963. He testified in part in substance: He frequently brought orders for the purchase of debentures of Franks' Finance Company to its home office at 807 Summit Avenue, Greensboro. Within a period of one year he saw defendant Franks sign probably a dozen debentures. Defendant Franks was president of Franks' Finance Company.
William W. Coppedge is employed as Security Deputy in the office of the Secretary of State of North Carolina. The record shows that Mr. Rollins handed Mr. Coppedge the volumes marked State's Exhibits 1 through 7. Immediately thereafter Coppedge testified in respect to these volumes: Coppedge testified in substance: The records delivered in his office were the seven debenture books marked State's Exhibits 1 through 7.
On cross-examination Coppedge testified in respect to these volumes marked State's Exhibits 1 through 7 in substance, except when quoted: These books were delivered to him personally in a big box on 17 July 1963. They were not delivered to him by defendant or by an employee of Franks' Finance Company. They were delivered to him by a Mr. Starling, who identified them by telling him they were the records which he had requested from Franks' Finance Company, and which he had been asked to bring to his office. He could not find anyone in Franks' Finance Company who knew anything about them. 'I had requested by telephone certain records from the gentleman (designating Mr. Joseph D. Franks who was sitting at Mr. High's left); they were not delivered for some time and then they were delivered by Mr. Starling; I only looked at the books and checked them against a list that I had been asked to sign, and no one has ever pointed out to me what these books are and I have never gone over these books with anyone who was charged with the preparing of the books.' He gave Mr. Starling a signed receipt for the records he brought him. The books marked State's Exhibits 1 through 7 were in his possession until they were carried to Greensboro by the State Highway Patrol on the day of the preliminary hearing and were then turned over to the court. They were the same records delivered to him in Raleigh by Mr. Starling. The court impounded these records.
The State's evidence further shows that the defendant was given a preliminary hearing in August 1963 in the municipal county court of Guilford County. The books marked State's Exhibits 1 through 7 were impounded by the court at that hearing and turned over to Mr. Rollins after the hearing. Mr. Rollins carried them to the office of the State solicitor where they were kept under lock and key until the trial.
James Lane Thomas, who lives in Greensboro, North Carolina, testified in substance: He bought some debentures from Jack W. Franks. He talked with him in his office several times. He bought a $1,000 debenture to start with, then a little later on in the same year he bought another $1,000 debenture, and the rest of the debentures were $100, $200, or $300 debentures; the debentures were on Franks' Finance Company. Mr. Franks was the president of the company. Mrs. Dolly Nichols Buckner, who lives in Winston-Salem, North Carolina, testified in substance: She bought $4,000 of debentures of Franks' Finance Company. She purchased these debentures after talking with Jack W. Franks, who told her he was the president of the company. The State further offered evidence to show that Ernest Oakley purchased $5,000 of debentures of Franks' Finance Company from Emmett Fulk, and the signature of Jack W. Franks on the debentures was in the handwriting of Jack W. Franks. Later he told Jack W. Franks he would like to have his money back and Franks told him they would probably be able to pay some of it back in 60 to 90 days, but he has never received any of it back. Mrs. Molly P. Cockerman, a widow, who lives in Winston-Salem, North Carolina, bought $800 of debentures of Franks' Finance Company, and the name of Jack W. Franks was on these debentures in his handwriting. Her check was made payable to Franks' Finance Company, and it has been paid.
That there is evidence of identity that the books marked State's Exhibits 1 through 7 were records of Franks' Finance Company of debenture sales seems not open to debate. E. B. Rannells, Jr., testified that he had seen these books in the office of Franks' Finance Company in Greensboro; that they were records of debenture sales for this company; and that the book marked State's Exhibit 6 contained a record of a $1,000 debenture sale by him to Mrs. Estelle Day Clayton and of a $100 debenture sale by him to Dr. Ernest H. Reynolds, and that the book marked State's Exhibit 7 contained a record of a $2,000 debenture sale by him to Lloyd E. Watson. Rannells further testified: 'No records were kept under my supervision except my own personal records.' William W. Coppedge, Security Deputy in the office of the Secretary of State, requested that Franks' Finance Company deliver to him in his office its records of debenture sales. On 17 July 1963 a Mr. Starling delivered to Coppedge in his office the seven debenture books marked State's Exhibits 1 through 7 and said they were the records which Coppedge had requested from Franks' Finance Company. See LeMaster v. People, 54 Colo. 416, 131 P. 269.
Defendant contends that the State's evidence does not show by whom the entries in these books were made or authorized and does not show that they were made in the regular course of business, at or near the times of the transactions involved, and consequently the books were improperly admitted in evidence.
A similar contention was made by the defendant and rejected by the Court in State v. Rhodes, 202 N.C. 101, 161 S.E. 722, a prosecution of a bank president on a charge of embezzlement, abstraction, and misapplication of the funds of the bank, and for making and causing to be made a false entry in the records of the bank. The Court said:
...
To continue reading
Request your trial
-
State v. Wilson
...the records be authenticated by the person who made them. State v. Carr, 21 N.C.App. 470, 204 S.E.2d 892 (1974). See State v. Franks, 262 N.C. 94, 136 S.E.2d 623 (1964). Furthermore, if the records themselves show that they were made at or near the time of the transaction in question, the a......
-
State v. Vestal
...identified until after the exhibits were introduced in evidence would not have made their admission reversible error. State v. Franks, 262 N.C. 94, 136 S.E.2d 623. The documents being incompetent, it was error to permit the witness Faison to testify as to the contents thereof and as to the ......
-
State v. Scott
...the records be authenticated by the person who made them. State v. Carr, 21 N.C.App. 470, 204 S.E.2d 892 (1974). See State v. Franks, 262 N.C. 94, 136 S.E.2d 623 (1964). Furthermore, if the records themselves show that they were made at or near the time of the transaction in question, the a......
-
Cameron v. New Hanover Memorial Hosp., Inc.
...laid subsequent to the first introduction of the minutes of the 22 April 1964 meeting which Warshauer recorded. See State v. Franks, 262 N.C. 94, 136 S.E.2d 623 (1964). Although we sustain plaintiffs' assignments of error as described above, we find no error in the admission of the minutes ......