State v. Jordan

• Decision Date: 28 October 1970
• Docket Number: No. 19113,19113
• Citation: 177 S.E.2d 464,255 S.C. 86
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. E. E. JORDAN, Appellant.

Page 464

177 S.E.2d 464

255 S.C. 86

The STATE, Respondent, v. E. E. JORDAN, Appellant.

No. 19113.

Supreme Court of South Carolina.

Oct. 28, 1970.

W. N. Moore, Jr., Kermit S. King, Columbia, for appellant.

Solicitor George F. Coleman, John Martin, Winnsboro, C. Pinckney Roberts and Michael W. Tighe, Asst. Attys. Gen., Columbia, for respondent.

MOSS, Chief Justice.

E. E. Jordan, the appellant herein, was brought to trial at the 1969 November Term of the Court of General Sessions for Fairfield County before The Honorable G. Badger Baker, and a jury, upon an indictment containing two counts: (1) breach of trust with fraudulent intent, Section 16--365 of the Code; and (2) obtaining property by false pretenses, Section 16--366 of the Code. At the close of the testimony in behalf of the State, the appellant made a motion for a directed verdict. At that time the solicitor dismissed count two of the indictment, leaving only the first count charging breach of trust with fraudulent intent. The trial judge overruled the motion of the appellant for a directed verdict as to this count. At the close of all the testimony, a like motion was made by the appellant and such was also refused. The jury found the appellant guilty as charged. The appellant prosecutes this appeal from his conviction and sentence.

The indictment charged that the appellant, on July 17, 1968, received, in trust, from Gary F. Bass, Jr., in cash, the sum of $5,400.00, for the purpose of purchasing for Bass 400 shares of the capital stock in Universal Business Machines, Inc., and that the appellant did breach such trust with a fraudulent intention and appropriated the aforesaid sum of money to his own use and purpose.

The first question for decision is whether the trial judge erred in refusing to grant the motion of the appellant for a directed verdict on the ground that fraudulent intent was not proven.

In deciding whether the court erred in not directing a verdict in favor of the appellant, we must view the testimony in the light most favorable to the State. When a motion for a directed verdict is made, the trial judge is concerned with the existence or nonexistence of evidence, not with its weight, and although he should not refuse to grant the motion where the evidence merely raises a suspicion that the accused is guilty, it is his duty to submit the case to the jury if there is evidence, either direct or circumstantial, which reasonably tends to prove the guilt of the accused or from which guilt may be fairly and logically deduced. State v. Rayfield, 232 S.C. 230, 101 S.E.2d 505; State v. Hyder, 242 S.C. 372, 131 S.E.2d 96; and State v. Wells, 249 S.C. 249, 153 S.E.2d 904.

Proof beyond a reasonable doubt of fraudulent intention is necessary before the crime of breach of trust is complete. State v. McCann, 167 S.C. 393, 166 S.E. 411; and State v. Owings, 205 S.C. 314, 31 S.E.2d 906. However, fraudulent intent is a condition of the mind beyond the reach of the senses, usually kept secret, and can only be proved by unguarded expressions, conduct and circumstances generally. Roddey v. Erwin, 31 S.C. 36, 9 S.E. 729; and Younger v. Massey, 39 S.C. 115, 17 S.E. 711.

The appellant was the president, operating manager and principal stockholder in Consolidated Securities, Inc., a stock brokerage firm doing business in the State of South Carolina. It is uncontradicted that Gary F. Bass, Jr., on July 17, 1968, delivered to the appellant $5,400.00 in cash, in payment for 400 shares of the capital stock of Universal Business Machines, Inc., at the quoted price of $13.50 per share. Receipt of this sum was acknowledged by the appellant in writing and Consolidated Securities, Inc. later confirmed this purchase by letter.

Gary F. Bass, Jr. testified that at no time after July 17, 1968, did he ever receive the 400 shares of stock so purchased nor did the appellant ever return the purchase price thereof, even though repeated attempts to secure the delivery of the stock or the return of the money was made by him.

There was testimony by one Adam C. Hart that on both June 27, 1968 and on July 3, 1868, he paid over to the appellant $1,000.00 for the purchase of 100 shares of Universal Business Machines, Inc., at $10.00 per share. Hart did not receive either his 200 shares of stock or the return of his $2,000.00, the purchase price thereof.

There was testimony by one W. F. Grimmer that on July 5, 1968, he paid over to the appellant $10,000.00 for the purchase of 1,000 shares of Universal Business Machines, Inc. stock at $10.00 per share. He did not receive either the shares of stock so purchased or a return of the purchase price thereof.

There is testimony by one John G. Gray that on July 11, 1968, he paid over to the appellant $700.00 for the purchase of 50 shares of Universal Business Machines, Inc. stock at $14.00 per share. Gray testified that he never received his shares or the return of his money.

There was testimony by Gray F. Bass, Sr., the father of the prosecuting witness, that on July 17, 1968, he paid over to the appellant $1,350.00 for the purchase of Universal Business Machines, Inc. stock, representing 100 shares at $13.50 per share. He never received the stock nor the return of his money. This witness also testified that he was promised delivery of the stock within two or three weeks after the purchase thereof.

The testimony of the four foregoing witnesses established, without contradiction, that the appellant received from each of them money for the purchase of UBM stock, and they received neither the stock which they had purchased nor the funds which they had entrusted to the appellant. The appellant objected to the admission of this testimony. The trial judge allowed such on the ground where fraud is an issue, evidence of other similar frauds perpetrated by the same person, on or about the same time, is admissible, particularly where the acts are all part of one general scheme or plan to defraud. Citizens Bank of Darlington v. McDonald, 202 S.C. 244, 24 S.E.2d 369. The question of whether or not the trial judge erred in admitting the foregoing testimony was raised by an exception in this court. However, the appellant has now specifically abandoned such exceptions.

The Citizens and Southern Bank of Columbia, South Carolina, was the exclusive transfer agent of UBM stock. A trust officer of this bank testified that he never received any instructions from the appellant to transfer 400 shares of UBM stock to Gary F. Bass, Jr. This witness also testified that he had no instructions from the appellant to transfer any stock to the four witnesses hereinbefore named who had also purchased stock from him.

It appears from the record that a receiver was appointed for the appellant and Consolidated Securities, Inc. on September 19, 1968. This receiver was called as a witness in behalf of the appellant and admitted, while on cross-examination, that the total amount of claims against the receivership were between $200,000.00 and $250,000.00, and that 90% To 95% Of these claims were filed by individuals who had purchased and paid for stock and had never received such.

The evidence shows that when the appellant received funds for the purchase of UBM stock that he deposited such in the bank to the credit of Consolidated Securities, Inc. The receiver testified that the appellant has never given him an explanation of 'where the $200,000.00 went to from this general account that he's short to these people.' The receiver testified that the appellant had gone into several ventures that were going to be subsidiaries of Consolidated Securities, Inc. He said that the appellant had bought certain property in Georgetown, South Carolina, had gone into a boat-trailer business, and was in the process of forming a company to do excavation work at Lake Murray, and this project necessitated the building of a large barge and equipping such with heavy machinery. He further testified that he did not know exactly how much money had been taken from the general account of Consolidated Securities, Inc. to finance these several ventures but he was certain that a portion of it had been so used. He also testified that the appellant was paying his own salary and buying items for his personal use with money that had been entrusted to him to purchase UBM stock. It thus appears from the testimony of the receiver that the appellant was diverting money received in trust for the purchase of UBM stock to pay the operating expenses of Consolidated Securities, Inc., including his own salary and the purchase of items for his personal use and for investment in the several ventures hereinbefore mentioned, rather than applying such in compliance with the trust.

The appellant, testifying in his own behalf, detailed his and his company's method of operation in selling UBM stock and transferring such stock to the purchasers. He admitted that on July 17, 1968, in Fairfield County, he received from Gary F. Bass, Jr., $5,400.00 in payment of 400 shares of the capital stock of Universal Business Machines, Inc. He also admitted that there had been paid over...