State v. Gentry

• Citation: 46 S.E.2d 863,228 N.C. 643
• Decision Date: 24 March 1948
• Docket Number: 289
• Parties: STATE v. GENTRY.
• Court: United States State Supreme Court of North Carolina

46 S.E.2d 863

228 N.C. 643

STATE v. GENTRY.

No. 289

Supreme Court of North Carolina

March 24, 1948

Criminal prosecution upon a bill of indictment charging defendant with embezzlement of $565 allegedly received and had by him for and on the account of Woodrow Price. G.S. s 14-90.

Upon the trial in Superior Court the State offered the testimony of Woodrow Price, and written papers identified by him, and the oral testimony of Luther Bolick, the manager of the National Trading Company of Hickory, North Carolina.

The testimony of Woodrow Price tended to show the following narrative of facts: In 1941 he, Woodrow Price, purchased a Chevrolet car in Baltimore, Maryland,--trading in an old car in part payment, and financing the balance of the purchase price through National Investment Company of Baltimore, that is, he borrowed some money from that company, and gave to it 'a title paper' as security therefor. In 1945 he came back to North Carolina and brought the car with him. He had a 1945 State of Maryland registration card for the car, Exhibit C, which contained detailed description of car and engine. At that time he still owed over $600 on the car, and, after returning, he made two or three payments, reducing the amount to $437. He then went to see defendant E. E. Gentry at his place of business in Lenoir, North Carolina, and told him that he, Price, needed the money to pay off what was owing in Baltimore so that he could have title transferred, so he could get a North Carolina tag. Gentry said he would refinance it for $25. Price said all right, and at the suggestion of Gentry, Price signed three papers, partly printed and partly written,--the writing in which was filled out there in Gentry's place of business by a boy who was working for Gentry--Gentry being present. These papers identified by Price are: (1) A paper captioned 'Borrower's Statement'. (This is Exhibit A.) (2) A paper reading in pertinent parts: 'National Trading Company, Hickory, North Carolina. In account with Woodrow Price, R. F. D. #9, Lenoir, North Carolina. Date: Feb. 11 1946. Loan: $500. Finance and Insurance $96.76. Total Note--$596.76. Payable * * * Payments of $49.73. First Installment due March 11, 1946. Copy of this Transaction Received: Details of which are correct. Signed--Woodrow Price. ' (This is Exhibit B.) (3) A paper purporting to be a note for $596.76, dated February 11, 1946, payable to the order of National Trading Company at Hickory, North Carolina, in twelve equal monthly installments of $49.73 due on the 11th of each month, starting March 11 1946, until the full amount of the principal shall have been paid with interest on deferred payments after maturity, etc. This note is appended and attached to what purports to be a chattel mortgage from and signed by Woodrow Price to National Trading Company of Hickory, North Carolina, acknowledging an indebtedness to it in the sum of $596.76, 'payable in accordance with the terms of a certain note of even date herewith, executed by the undersigned and hereto attached', and conveying as security for the indebtedness a 1941 Chevrolet situated at Route #9, Lenoir, N. C., and of same description as that contained on the 1945 State of Maryland registration card--Exhibit C--to which reference is above made. Price testified that his purported signature to the purported chattel mortgage is not in his handwriting. (The note and purported chattel mortgage are Exhibit D.)

After these papers were filled out and signed, as above stated defendant kept them. Price told Gentry how much money he wanted to borrow to pay off what he owed in Baltimore. Gentry said he would send it to Baltimore and have the title transferred and come back to him,--and Price gave to Gentry the receipt book he had obtained from the National Investment Company of Baltimore, showing every payment he had made. Gentry did not then tell Price where he intended to finance the car, --but did sometime later. Price made two payments of $40 on February 16, 1946, and $25 on March 1, 1946, to Gentry, and the boy that worked for Gentry gave him receipts bearing these dates. (These are Exhibits E. and F.)

Sometime in March, the Baltimore company took the automobile from Price.

In this connection Price, while on the witness stand, was asked this question: 'Why did the Baltimore company take your car?' to which he replied 'They had never received any money for it '. As to this the solicitor for the State and counsel for defendant stipulate that: 'The defendant did not object or except to the foregoing question. After the question had been propounded to the witness by counsel for the State, and and after the witness had answered the question, as set forth above, and after the jury had heard the answer of the witness, the defendant for the first time objected to the answer, but did not move to strike out the same. The objection of the defendant to the answer was overruled, and the defendant excepted. This is Assignment of Error Number 11.'

The narrative of Price's testimony continues: In a later conversation Gentry told Price that he had sent a company check to Baltimore to pay what was owing there and that the title should be back. Gentry said he got the money, $500 from the National Trading Company and sent it to Baltimore. Price, who was then working at a furniture factory, stopped by every evening to ask about it, and Gentry said there was no need to worry about it. But Price never did get a title from Gentry or anyone else, and he lost his car. In a later conversation Gentry said he got the money and sent his personal check to the finance company in Baltimore. This was after the car had been taken from Price. Price further testified: 'After that I had a conversation with Mr. Gentry. I went to his place of business and asked him if he wanted to pay me my money back or part of the money back that I had lost on my car, and he said No, that he had paid the National Trading Company and that he was not going to lose any more money on it * * * He said that he had sent the money to Baltimore * * * that he had sent his personal check * * *. He never did give me any money back. When he told me he had sent his personal check to the finance company, I told him he was a ------ liar, that he had never sent them anything. He didn't say anything for a little bit and he didn't remember what he sent but he didn't deny it when I said he had not sent them anything. He didn't say whether he had or not. I lost my automobile and my money. At the time I talked to him he told me that he had taken those papers to the National Trading Company and got $500 from them.'

Then on cross-examination Price testified: 'I didn't give him anything except the money for the two receipts totaling $65, and that was on a debt'.

The witness Luther Bolick testified: 'I live in Hickory and am manager of National Trading Company and have custody of the checks and securities of said company. There is no record of any check being issued to any finance company in Baltimore on this car. When the loan was made cash was issued rather than a check. The paper writing marked * * * Exhibit D on an automobile is held by the National Trading Company. It is the property of said company. There have been three payments made on that paper, $49.73, a total of $149.19. Its credits are to Woodrow Price. The first payment was on March 14, 1946; the second June 12, 1946, and the third June 14, 1946. There was paid to Mr. Gentry on this account $500 in cash. ' 'Q. When did you first receive notice that there was any other written claim on this automobile? ' Objection-- overruled--exception No. 11A. 'A. I am not sure about the exact date, but it was about July or August 1946 '. Then on cross-examination the witness testified: 'We simply made Mr. Gentry a loan of $500 and accepted those papers as collateral on that loan '. And on re-direct examination the witness concluded his testimony by saying, 'We...