State v. Heaton
| Citation | 81 N.C. 542 |
| Court | United States State Supreme Court of North Carolina |
| Decision Date | 30 June 1879 |
| Parties | STATE v. JAMES HEATON. |
OPINION TEXT STARTS HERE
INDICTMENT for Embezzlement tried at April Term, 1879, of NEW HANOVER Criminal Court, before Meares, J.
After charging the election and qualification of the defendant as clerk of the superior court of New Hanover county, the indictment further charged that he by virtue of his office and in pursuance of an act of the general assembly ratified on the 10th of March, 1877, received and collected from one Alexander Oldham the sum of one dollar on a certain mortgage deed as a tax due to the state of North Carolina, which said sum of one dollar was the property of and for the use of the said state of North Carolina, being a tax as aforesaid, which said sum of one dollar with force and arms the said James Heaton on the day and date aforesaid in the county aforesaid did wilfully, knowingly, corruptly, falsely and fraudulently convert and appropriate to his own use, contrary to the form of the statute entitled “an act to raise revenue,” ratified the 10th day of March, 1877, and against the peace and dignity of the state. Upon motion of defendant's counsel, the court quashed the bill for the causes set out in the opinion of this court, and Moore, solicitor for the state, appealed.Attorney General, for the State .
No counsel in this court for defendant.
The defendant being the clerk of the superior court of New Hanover county, and ex-officio judge of probate, was indicted at the August term, 1878, of the criminal court of said county for embezzlement. The indictment was founded on the fifth and eighth sections of chapter 156 of the acts of 1876-'77.
The fifth section reads: “On each marriage license, one dollar, and on each marriage contract, mortgage deed and deed in trust to secure creditors where amount secured exceeds three hundred dollars there shall be a tax of one dollar; the tax on marriage licenses shall be paid to the register of deeds when he issues the license, and the tax on the deeds to the judge of probate in the county in which the instrument is admitted to registration,” &c. To this section, there is a proviso in a separate clause: “That mortgage deeds, deeds in trust, or other conveyances made to secure agricultural advancements shall not be subject to any tax under this section, and no tax shall be collected by any clerk of a superior court as a tax on suits either for the state or county.”
The eighth section provides that “any officer convicted of violating the preceding sections, or of appropriating to his own use, any state, county, school, city or town taxes, shall be guilty of embezzlement and may be punished not exceeding five years in the state prison at the discretion of the court.
The indictment charges that the defendant being clerk of the superior court of New Hanover, by virtue of his said office, received and collected from one Oldham the sum of one dollar on a certain mortgage deed as a tax due the state of North Carolina, which said sum of one dollar was the property of, and for the use of the said state of North Carolina, being a tax as aforesaid, which said sum of one dollar, with force and arms, the said James Heaton on the day and year aforesaid did wilfully, knowingly, corruptly, falsely and fraudulently convert and appropriate to his own use, contrary to the form of the statute, entitled an act to raise revenue, ratified the 10th day of March, 1877.
The counsel for the defendant moved to quash the bill of indictment for the following reasons:
1. That the aforesaid fifth section only applies to mortgage deeds intended to secure an amount in excess of three hundred dollars, and the bill of indictment fails to charge that this was a deed of mortgage securing an amount in excess of three hundred dollars.
2. That the proviso of the said fifth section exempts from this tax all deeds of mortgage made to secure agricultural advancements, and that the bill of indictment fails to negative this deed as an agricultural mortgage.
His Honor sustained the motion to quash, and the solicitor for the state appealed to this court.
1. Quashing indictments is not favored; and although the courts have the power to quash upon motion of the defendant before plea, it is purely a discretionary one and is not usually exercised unless where the defect is gross and apparent; and not then, where the offence is a felony, or other heinous offences, such as cheats, extortion and public nuisances. Arch. Cr. Pl., 66; State v. Baldwin, 1 Dev. & Bat., 195; State v. Jeffreys, Conf. Rep., 364. In cases of doubt they should not quash...
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State v. Johnson
... ... made in the first instance on the part of the prosecution. In ... such circumstances, a defendant charged with the crime, who ... seeks protection by reason of the exception, has the burden ... of proving that he comes within the same. State v ... Heaton, 81 N.C. 542, 543; State v. Goulden, 134 ... N.C. 743, 47 S.E. 450.' To the same effect are State ... v. Norman, 13 N.C. 222; State v. Burton, 138 ... N.C. 575, 576, 50 S.E. 214; and State v. Johnson, ... 188 N.C. 591, 125 S.E. 183; State v. Dowell, 195 ... N.C. 523, 143 S.E. 133; State v ... ...
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State v. Hicks
...expressed. We were all agreed as to that principle. See, also, State v. Norman, 13 N. C. 222; State v. Tomlinson, 77 N. C. 528; State v. Heaton, 81 N. C. 542; State v. Lanier, 88 N. C. 658; State v. George, 93 N. C. 567; State v. Downs, 116 N. C. 1064, 21 S. E. 689; State v. Call, 121 N. C.......
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State v. Hicks
... ... have in hand was not doubted by any of the judges, although ... there were dissenting views expressed. We were all agreed as ... to that principle. See, also, State v. Norman, 13 ... N.C. 222; State v. Tomlinson, 77 N.C. 528; State ... v. Heaton, 81 N.C. 542; State v. Lanier, 88 ... N.C. 658; State v. George, 93 N.C. 567; State v ... Downs, 116 N.C. 1064, 21 S.E. 689; State v ... Call, 121 N.C. 649, 28 S.E. 517; State v ... Welch, 129 N.C. 580, 40 S.E. 120; State v ... Blackley, 138 N.C. 622, 50 S.E. 310. The burden was ... ...
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State v. Downs
...this is not necessary, but it is matter to be shown in defense. State v. Norman, 13 N. C. 222; State v. Tomlinson, 77 N. C. 528; State v. Heaton, 81 N. C. 542; State t. Lanier, 88 N. C. 658; State v. George, 93 N. C. 567. Here the proviso that the act should not apply to the sale of vinous ......