State v. Grace, (No. 445.)
| Decision Date | 21 November 1928 |
| Docket Number | (No. 445.) |
| Court | North Carolina Supreme Court |
| Parties | STATE. v. GRACE. |
Appeal from Superior Court, Mecklenburg County; John M. Oglesby, Judge.
C. M. Grace was convicted of embezzlement, and he appeals. Reversed.
Jake F. Newell, A. A. Tarlton, and W. H. Bobbitt, all of Charlotte, for appellant.
Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.
The defendant was convicted of embezzlement. The indictment, which was drafted conformably to C. S. § 4268, charges that the defendant was the agent, consignee, clerk, employee, and servant of a charitable organization known as the "House of Prayer"; that he was intrusted with the receipt of money for the organization; and that he received and had under his care the sum of $5,000, which he embezzled and fraudulently converted to his own use. The evidence includes a number of transactions, but the circumstances on which the state chiefly relies, granting for the immediate purpose that they are sustained by the testimony, are these: (1) The fact that the original deed to the Charlotte property was taken in the defendant's name; (2) that the defendant's use of $385 for the purchase of a tent in Norfolk was unauthorized; (3) that the defendant's use of $1,200 for the purchase of a lot in Washington for the House of Prayer was not authorized.
The defendant contends that the proof in respect to these matters is not comprehended by or included in the indictment; that, if the defendant is guilty of any offense, it is a breach of that portion of C. S. § 4270, not embraced in the bill of indictment; and that there is a fatal variance between the allegation and the proof. The Assistant Attorney General, pursuant to his uniform frankness, admits that the proof does not sustain the specific charge on which the defendant is prosecuted, and that the alleged variance is fatal.
The crime of embezzlement is of statutory origin, and the principle is established that, when the words of a statute are descriptive of the offense, the indictment should fol low the language and expressly charge the offense described. State v. Maslin, 195 N. C. 537, 143 S. E. 3; State v. Edwards, 190 N. C. 322, 130 S. E. 10; State v. McDonald, 133 N. C. 680, 45 S. E. 582; State v. Bagwell, 107 N. C. 859, 12 S. E. 254, SLR, A. 840. The indictment does not follow the descriptive words in C. S. § 4270.
The defendant moved In arrest of judgment, but the motion was properly denied, for the...
To continue reading
Request your trial
-
State v. Satterfield
...only when--some error or fatal defect appears on the face of the record. State v. Bittings, 206 N. C. 798, 175 S. E. 299; State v. Grace, 196 N. C. 280, 145 S. E. 399; State v. McKnight, 196 N. C. 259, 145 S. E. 281; State v. Mitchem, 188 N. C. 608, 125 S. E. 190. A searching investigation ......
-
State v. Eason
...may be arrested only for some error or defect appearing on the face of the record, the motion therefor was properly denied. State v. Grace, 196 N.C. 280, 145 S.E. 399; State v. McKnight, 196 N.C. 259, 145 S.E. 281. Hence, our inquiry concerns defendant's motion for nonsuit as to the charge ......
-
State v. Hicks
...be raised by motion for judgment as of nonsuit, or by demurrer to the evidence. State v. Law, 227 N.C. 103, 40 S.E.2d 699; State v. Grace, 196 N.C. 280, 145 S.E. 399; State v. Harris, 195 N.C. 306, 141 S.E. 883; State v. Harbert, supra; State v. Gibson, The motion for judgment as of nonsuit......
-
State v. Cohoon
...See State v. Morgan, 136 N. C. 628, 48 S. E. 670; State v. Falkner, 182 N. C. 793, 108 S. E. 756, 17 A. L. R. 986; State v.Grace, 196 N. C. 280, 145 S. E. 399; State v. Lancaster, 202 N. C. 204, 162 S. E. 367; State v. Rawls, 202 N. C. 397, 162 S. E. 899.In order to secure evidence of corru......