State v. Howard
| Decision Date | 25 November 1942 |
| Docket Number | 433. |
| Citation | 22 S.E.2d 917,222 N.C. 291 |
| Parties | STATE v. HOWARD. |
| Court | North Carolina Supreme Court |
The defendant was charged with embezzlement in two cases. Separate bills of indictment were found against him. One bill charged him with embezzling property of the State of North Carolina while an officer and agent of the State and cashier in the North Carolina Department of Revenue. In another bill he was charged as such officer, agent and cashier with aiding and abetting one C. W. Sneed, another officer and employee of the State, in embezzling property of the State. C.S. §§ 4268, 4269.
By consent the cases were consolidated and tried together. There was verdict of "Guilty as charged in said bills of indictment." From judgment imposing sentence of not less than one nor more than three years in State's Prison, the defendant appealed.
Bunn & Arendell, of Raleigh, for appellant.
Harry McMullan, Atty. Gen., and George B. Patton and Hughes J Rhodes, Asst. Attys. Gen., for the State.
The defendant bases his appeal from the judgment below principally upon three grounds: 1. He assigns error in the ruling of the court in permitting C. W. Sneed to testify as a witness against him. According to the record Sneed had entered a plea of guilty to an indictment for embezzlement at a previous term of court, but had not been sentenced. The defendant cites State v. Bruner, 65 N.C. 499, and State v. Queen, 65 N.C. 464, in support of his position that Sneed was not a competent witness against him. The common-law disqualification of a defendant in a criminal action from testifying in his own behalf, because of his interest, was removed by Chap. 43, Public Laws 1866. Thereafter, by Chap. 177, Public Laws 1869-1870, it was provided that codefendants in the same indictment could not testify for or against each other. While this last statute was in force the decisions cited were rendered. However, at the next session of the General Assembly the Act of 1869-1870 was expressly repealed and the former statute re-enacted. Chap. 4, Public Laws 1871-1872. So that at the time of the trial of this case there was no statute or rule of evidence that would require the exclusion of the testimony of Sneed if in other respects competent. State v. Smith, 86 N.C. 705; State v. Medley, 178 N.C. 710, 100 S.E 591; State v. Bittings, 206 N.C. 798, 175 S.E. 299; State v. Perry, 210 N.C. 796, 188 S.E. 639; C.S. § 1792.
2. The defendant assigns error in the denial of his motion for judgment as of nonsuit, but an examination of the record leads to the conclusion that there was no error in the ruling of the court in this respect. There was evidence tending to show fraudulent misapplication of the property of the State as charged in the bills of indictment.
Evidence of intention or expectation, subsequently, to return the money, or that the money so fraudulently misapplied was after discovery repaid, or that the defendant secured no personal benefit, would not necessarily exculpate the defendant, or compel his acquittal. State v. Foust, 114 N.C. 842, 19 S.E. 275; State v. Summers, 141 N.C. 841, 53 S.E. 856; State v. Lancaster, 202 N.C. 204, 162 S.E. 367; State v. McLean, 209 N.C. 38, 182 S.E. 700. The fraudulent intent which constitutes a necessary element of the crime of embezzlement, within the meaning of the embezzlement statutes, is the intent to embezzle or otherwise wilfully and corruptly use or misapply the property of the principal or employer for purposes other than those for which the property is held. State v. McDonald, 133 N.C. 680, 45 S.E. 582; State v. Lancaster, supra; State v. McLean, supra. There was evidence sufficient to support the verdict and judgment.
3. The defendant excepted to the following portions of the judge's charge to the jury:
From an examination of the record it appears that before giving the instructions complained of, the trial judge in his general charge had read to the jury one of the bills of indictment on which the defendant was being tried, and the statute, C.S. § 4269, under which it was drawn. This statute prescribed a minimum sentence, upon conviction, of 20 years in prison, or $10,000 fine, or both. It appears that counsel for the defendant in their arguments to the jury had previously commented on the severity of the minimum punishment prescribed by this statute, and that the judge's reference to a general statute relating to punishment was evoked by the comments of counsel. The jury was carefully cautioned that matters of punishment were not to be considered by them in any way as bearing on the question of the guilt or innocence of the defendant. Furthermore, it appears that the defendant was being tried on two bills of indictment, one charging violation of C.S. § 4269, and the other drawn under C.S. § 4268, which was also read to the jury. The punishment prescribed for violation of the latter statute is not less than four months and not more than ten years in prison. While the comments of counsel and the reference of the judge thereto were directed to the penal provisions of section 4269, the jury returned verdict of guilty as charged in both bills, and a single sentence was imposed--not less than one year nor more than three years in prison. Thus, it seems that the verdict rendered and the sentence imposed properly may be regarded as bottomed upon a different statute from that first read to the jury, and referred to in the portion of the charge excepted to, and without necessary relation thereto.
The exact question presented by this exception has not heretofore been decided by this court. It has been held improper for the judge to convey to the jury the implication that a verdict of guilty would not require the imposition of the statutory penalty. In State v. Matthews, 191 N.C. 378, 131 S.E. 743, the statement by the judge to the jury in a capital felony, after they had been out several hours, in response to inquiry, that they might return verdict of guilty of murder in the first degree with recommendation of mercy, was held to be error because calculated to induce the impression that the return of such a verdict would not result in the punishment prescribed by the statute. It was thought that otherwise the jury might have returned a different verdict. But that is not the case here.
While the reading of a statute to the jury in regard to punishment is not to be commended, we are not prepared to hold that it alone is sufficiently prejudicial to the defendant to require a new trial. Such a rule, strictly applied, might unduly fetter the judge in giving instructions to the jury, or advising them of the exact language of the statute the defendant is charged with violating. The trial judge has wide discretion as to the manner in which he presents an issue of fact to the jury, so long as he charges the applicable principles of law correctly, and states the evidence plainly and fairly without expressing an opinion as to whether any fact has been fully or sufficiently proven. C.S. § 564. It is his high duty to hold the scales evenly between all parties. There are no stereotyped forms of instructions. No two cases are exactly alike, and the trial judge's rulings should be considered by the Appellate Court in the light of the circumstances of the trial. The rule prevails that in order to overthrow the verdict and judgment it must be made to appear not only that the action of the trial judge complained of was erroneous, but that it was "material and prejudicial, amounting to a denial of some substantial right." Collins v. Lamb, 215 N.C. 719, 2 S.E.2d 863, 864.
The question of the propriety of reference in the judge's charge to the punishment that might be imposed after conviction has been considered in other jurisdictions, and we cite a number of cases showing the variety of circumstances under which the question has been raised.
In People v. Alfano, 322 Ill. 384, 153 N.E. 729, the trial judge instructed the jury that the penalty upon conviction was one to twenty years' imprisonment, and further instructed the jury that after serving one year the defendant had the right to apply for parole, and that the parole board had the right to release him on parole then, or at any subsequent time within the maximum period. This was held error, but not of such character as to require a reversal of the judgment.
In Coward v. Commonwealth, 164 Va. 639, 178 S.E. 797 it was said that, while it was improper for the trial judge to tell the jury its sentence might be set aside,...
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