State v. Harris

• Decision Date: 21 April 1890
• Citation: 11 S.E. 377,106 N.C. 682
• Parties: STATE v. HARRIS et al.
• Court: North Carolina Supreme Court

11 S.E. 377

106 N.C. 682

STATE v. HARRIS et al.

Supreme Court of North Carolina

April 21, 1890

Syllabus by the Court.

1. Where A. and B. are charged with embezzlement in one count and in another count, in the same bill, A. is charged with the same act of embezzlement, this is not a misjoinder, but the latter count is mere surplusage, being embraced in the other.

2. To charge two separate and distinct offenses in the same count is bad for duplicity; but, if a count for embezzlement uses words which also may amount to a charge of larceny, the latter words will be treated solely as a part of the charge for embezzlement. State v. Lanier, 89 N.C. 517 cited and approved.

3. When and indictment charges several distinct offenses in different counts, whether felonies or misdemeanors, the court, in its discretion, may quash, or require the solicitor to elect but, if the bill is demurred to for a misjoinder, that raises a question of law, and if the demurrer is sustained an appeal by the state lies. State v. McDowell, 84 N.C. 798 cited and approved.

4. If the several counts contain a mere statement of the same transaction, varied to meet the different phases of proof the bill cannot be quashed. State v. Eason, 70 N.C. 88; State v. Morrison, 85 N.C. 561; State v. Parish, 104 N.C. 679, 10 S.E. Rep. 457, cited and approved.

5. When each count in an indictment alleges in the beginning that "on the 1st day of January, 1888, in said county of Granville," the defendant, etc., this applies to the whole count, and is a sufficient allegation that the crime charged in said count was committed in the county of Granville; and it is needless to repeat it at the beginning of each sentence or paragraph in the same count.

6. The omission of the words "with force and arms" in an indictment has beenheld immaterial since the year 1546. St. 37 Hen. VIII., citing Ruffin, C.J., in State v. Moses, 2 Dev. 452.

7. A defendant cannot be prejudiced by an indictment concluding, even if unnecessarily, "against the statute." Code, § 1183; State v. Kirkman, 104 N.C. 911, 10 S.E. Rep. 312.

This was an appeal by the state from a judgment of ARMFIELD, J., at January term, 1890, Granville superior court, sustaining a demurrer to an indictment. The first count in the indictment is as follows: "That the jurors for the state, upon their oaths, present that on the 1st day of January, 1888, at and in the said county of Granville, E. L. Harris and W. N. Harris were the agents and employes of the Lord & Polk Company, a corporation created, organized, and existing by and under the authority of the laws of the state of Delaware for the sale of a certain brand of fertilizer known and called by the name of 'Diamond State Superphosphates,' and were also, on the day and year aforesaid, the agents and employes of said corporation to have, take and receive into their possession and under their care, from the purchasers of said fertilizer, all moneys that such purchasers might or would pay to them as agents and employes as aforesaid, for and on account of said corporation; *** and they further present that said defendants, certain moneys, of the value of one hundred dollars, to-wit, the sum of ten dollars each, of the value of ten dollars, of and from W. D. Fuller, W. A. Blackley, W. W. Conway, R. H. Tunstall, R. A. Tunstall, G. W. Reams, B. F. Lane, and D. C. White, the property of said corporation, and the said E. L. Harris and W. N. Harris, agents and employes as aforesaid, on the day and year aforesaid, the said moneys, the property of said corporation as aforesaid, unlawfully, fraudulently, and feloniously did take, steal, and embezzle, and convert to their own use, and did make way with and secrete with intent, unlawfully, fraudulently, and feloniously, to take, steal, embezzle, and convert to their own use said moneys so received by them, the said E. L. Harris and W. N. Harris, agents and employes as aforesaid, they, the said E. L. Harris and W. N. Harris, not being apprentices, and being over the age of sixteen years, to the great damages of said corporation, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state." The second count is a copy of the first, except that it alleges authority to receive "promissory notes, bonds, and obligations to pay," of the sum of $10 each, executed by W. D. Fuller and others, named in first count, instead of "moneys," as charged in the first count, and the receipt of the same, and embezzlement thereof, as charged in the first count. The third count is a duplicate of the first, except that it charges E. L. Harris instead of E. L. Harris and W. N. Harris. The fourth count is a duplicate of the second, except that it charges E. L. Harris alone. The fifth charges that E. L. Harris and W. N. Harris were copartners trading in the name and style of Harris & Son, and their agency and embezzlement of the moneys, promissory notes, bonds, obligations to pay, and embezzlement thereof, all as set out in previous counts. With these variations, the last four counts are a copy of the first count, which is substantially above set out.

The Attorney General, for the State.

M. V. Lanier, N. B. Cannady, and A. W. Graham, for appellee.

CLARK, J., (after stating the facts as above.)

The defendants demur to the indictment as defective for misjoinder, duplicity and insufficiency, in that (1) in the first, second, and fifth counts the offense is charged to have been committed by E. L. Harris and W. N. Harris, and these counts are joined with third and fourth counts, charging the offense to have been committed by E. L. Harris, and that this is bad for misjoinder; (2) that each count charges the two separate and distinct offenses, larceny and embezzlement, and is bad for duplicity; (3) that the indictment charges several distinct offenses; (4) that it is not alleged in what county the offense was committed; (5) that the offense is not alleged to have been committed with "force and arms;" (6) that the indictment wrongfully concluded contra formam statuti.

1. The different counts in the bill are statements, in different forms, of the same embezzlement, varied to meet the different possible phases of the testimony. We do not see any object to be obtained by the counts charging E. L. Harris alone; for, if the evidence justified his conviction alone, and not that of W. N. Harris also, he would have been convicted under the count charging him jointly with another, though the other should be acquitted. But we see no harm which could accrue either to him or the other defendant by a count which is mere surplusage, for it is included and embraced in the other counts. This is different from State v. Hall, 97 N.C. 474, 1 S.E. Rep. 683, which held that different persons could not be charged with different and distinct offenses in the same indictment.

2. The defendants' counsel file a brief, which, if correct, would cure this alleged defect, as they insist that the charge as to larceny is not sufficient, in law, as a charge for larceny. If so, there remains only the charge for embezzlement, and utile per inutile non vitiatur. But it is not necessary to consider the correctness of defendants' view on that point; for, while the joining of two separate offenses in the same count is bad for duplicity, (State v. Cooper, 101 N.C. 684, 8 S.E. Rep. 134,) the court hold (ASHE, J., in State v. Lanier, 89 N.C. 517) that where larceny and embezzlement of the same article is alleged in the same count "the indictment is good for embezzlement notwithstanding the charge of larceny," because the latter words "are superfluous and unmeaning in an indictment [for embezzlement] under our statute."

3. An indictment containing several counts, describing the same transaction in different ways, is unobjectionable, (ASHE, J in State v. Reel, 80 N.C. 442,) and the...