State v. Gregory

• Decision Date: 17 July 1939
• Docket Number: 14918.
• Citation: 4 S.E.2d 1,191 S.C. 212
• Parties: STATE v. GREGORY.
• Court: South Carolina Supreme Court

4 S.E.2d 1

191 S.C. 212

STATE v. GREGORY.

No. 14918.

Supreme Court of South Carolina

July 17, 1939

Donald Russell and L. G. Southard, both of Spartanburg, and Eugene S. Blease, of Newberry, for appellant.

Samuel R. Watt, Solicitor, and Evans, Galbraith & Holcombe, all of Spartanburg, for the State.

BAKER Justice.

Prior to the argument of this case, there were two motions made in the cause. (1) A motion by appellant for an order suspending the hearing and determination of the appeal, and for permission to move before the Circuit Court for a new trial on the ground that highly improper and prejudicial evidence and exhibits which were not offered in evidence in the trial of the cause came into the possession of the jury which convicted appellant, and such evidence and exhibits were considered by the jury when the cause was tried; and (2) a motion by respondent to dismiss the appeal for the alleged failure of appellant to comply with section 6 of rule 4 in the preparation of his exceptions.

Our disposition of this appeal renders it unnecessary that we pass upon the first motion.

The exceptions are long, argumentative and repetitious, yet the appeal is of such grave consequence to appellant, we will in this instance waive a strict compliance with the rule. It may be that some of the exceptions do not directly transgress the rule.

The appellant was convicted of embezzlement, and from the sentence imposed has appealed upon seventy-three exceptions. By reason of the number and the prolixity of the exceptions to which we have hereinbefore referred, it has not been an easy task to separate the wheat from the chaff. However, upon a careful analysis of the case we find that a majority of these exceptions made in every conceivable form are to the admission in evidence of a "by-pass", and testimony relating to the "by-pass", permitted by the trial judge over the strenuous objection of appellant; and the only other issue necessary to pass upon is whether appellant's motion for a directed verdict of "not guilty" should have been granted.

The appellant, who was (or had been) the duly appointed, acting and qualified secretary and treasurer of the commissioners of the public works of the City of Spartanburg, S. C., and another who was (or had been) the duly appointed, acting and qualified assistant secretary and treasurer of said Commissioners of the Public Works of the City of Spantanburg S. C., were charged in the same indictment with the wilful unlawful and felonious embezzlement of the sum of five thousand, five hundred, thirty-four and 42/100 ($5,534.42) dollars of the public funds of the Commissioners of Public Works of the City of Spartanburg, S. C., and appropriating said public funds to their own use and purpose with the intention of cheating and defrauding the said Commissioners, etc., of the same.

Upon a trial of the case, respondent was content to introduce evidence as to only a portion of the amount charged to have been embezzled, such portion being represented by checks and vouchers which it was claimed had been issued during the years 1936 and 1937 to the Public Works in payment of bills, but the proceeds thereof being appropriated by appellant and his co-defendant.

Respondent was allowed to introduce in evidence a contrivance called a "by-pass", which had been removed from the premises of appellant, and which it was claimed had been installed at the direction or with the knowledge and consent of appellant in 1932, and had been in continuous use since said date until removed, which was through the time of the alleged embezzlement. The "by-pass" was a contrivance placed underground at and around the water meter in appellant's yard and permitted about three-fourths of the water which would ordinarily pass through and register on the meter to pass around, thus reducing the appellant's bill for water consumption to about one-fourth. Timely objection was made to all testimony having any reference whatsoever to this "by-pass."

Subsection (4) of Section 1203 of the Criminal Code, Code 1932, is as follows: "*** Any such person to whom such water is furnished from or by means of a meter, who shall wilfully and with intention to cheat and defraud any of said municipalities or the commissioners of public works alter or interfere with such meter, or by any contrivance whatsoever withdraw or take off water, in any manner except through such meter, shall be guilty of a misdemeanor and be punished as hereinafter provided."

The penalty for a violation of the above statute is a fine not exceeding $200 or by imprisonment not exceeding sixty days, or by both fine and imprisonment.

It will be seen that while in order for the installation and use of a contrivance for diverting water from the meter to be unlawful, such contrivance must be installed and used with intent to cheat and defraud, yet the statute merely denominates its violation a disdemeanor; and the procurement of water without paying therefor by the use of such a device is not larceny under the law of this State. Except for this statute, we would say that it was common law larceny; and under the common law, larceny is a felony.

Embezzlement is purely a statutory offense, and was unknown to the common law. As is stated in 18 Am.Jur., Embezzlement, Section 2: "The object of statutes creating the offense is to meet and obviate certain defects in the law of larceny through which many persons who misappropriated another's property escaped criminal prosecution although the moral turpitude of their offense was as great as in the case of larceny proper. One of the principal objects of embezzlement statutes is to protect employers against the frauds of those in whom confidence is imposed."

While no single definition of embezzlement is broad enough to cover the offense, yet, generally speaking, embezzlement may be defined as the fraudulent appropriation or conversion by an agent, an employee, a corporate officer, or other person acting in a fiduciary capacity or character, of money or property, the possession of which has been intrusted to him by another. 18 Am.Jur., Embezzlement, Section 2. See also State v. Brown, 178 S.C. 294, 299, 182 S.E. 838.

Our statute on embezzlement (Section 1510, Code of 1932, as amended in 1934, Act Feb. 5, 1934, 38 St. at Large, p. 1197), reads as follows: "All officers and other persons charged with the safe keeping, transfer and disbursements of any public funds, who shall embezzle the same, shall be deemed guilty of felony, and, upon conviction thereof, shall be punished by fine and imprisonment, in the discretion of the court; said fine and imprisonment to be proportioned to the amount of the embezzlement ***. In trials under this Section, upon production of evidence tending to prove that any such officer or other person has received public funds and failed to account therefor as required by law, there shall arise a presumption that the funds received and unaccounted for have been fraudulently appropriated by such officer or person, and the burden at such stage of the case shall rest upon such officer or person to show otherwise."

In permitting the introduction in evidence of the "by-pass", and testimony relating to same, the trial judge expressed grave doubt if such was admissible, stating: "I understand the ease in which the Court can fall into error. I don't want to run into error." And after further argument, "I will let it in, and take a chance."

The testimony and "exhibit" were admitted for the purpose of showing "intent".

There is no dispute between respondent and appellant that as a general proposition, in a prosecution for one crime proof of another direct substantive crime is never admissible, unless there is some legal connection between the two, upon which it can be said that one tends to establish the other or some essential fact in issue.

However, it is contended by the respondent that this testimony and the "exhibit" come within the exceptions to the general rule. These exceptions are set out in the opinion in State v. Lyle, 125 S.C. 406, 416, 118 S.E. 803, 807, in quoting from People v. Molineux, 168 N.Y. 264, 61 N.E. 286, 62 L.R.A. 193, in the following language: "'Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish, (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; (5) the identity of the person charged with the commission of the crime on trial. Wharton on Crim.Ev. (9th Ed.) 48; Underhill on Ev. § 58; Abbott's Trial Brief, Crim. Trials, sec. 598."'

In the paragraph immediately preceding the above quoted statement of exceptions to the general rule, is the following: "*** That contention is grounded upon the familiar and salutary general rule, universally recognized and firmly established in all English-speaking countries, that evidence of other distinct crimes committed by the accused may not be adduced merely to raise an inference or to corroborate the prosecution's theory of the defendant's guilt of the particular crime charged. Bishop, New Crim.Proc., 1120. State v. Owens, , 117 S.E. [536], 537; People v Molineux, 168 N.Y. 264, 61 N.E. 286, 62 L.R.A. 193. The objections, from the viewpoint of English jurisprudence, to the admission of this class of evidence are patent. Proof that a defendant has been guilty of another crime equally heinous prompts to a ready acceptance of and belief in the prosecution's theory that he is guilty of the crime charged. Its effect is to predispose the mind of the juror to believe the prisoner guilty, and thus effectually to strip him of...