State v. Keith

• Decision Date: 29 May 1900
• Citation: 126 N.C. 1114,36 S.E. 169
• Court: North Carolina Supreme Court
• Parties: STATE. v. KEITH.

126 N.C. 1114

36 S.E. 169

STATE.

v.KEITH.

Supreme Court of North Carolina.

May 29, 1900.

EMBEZZLEMENT — INDICTMENT — EVIDENCE— CONSTRUCTION OF STATUTE.

1. A landlord who takes possession of the tenant's crop, of which he is entitled to one-half, and sells it, and refuses to account to the tenant for his share of the proceeds, is not guilty of embezzlement, under Code, § 1014, declaring "any officer, agent, clerk, employ© or servant of any corporation, person or copartnership, who shall embezzle or fraudulently convert to his own use" any money, goods, or other chattels belonging to any other person, shall be guilty of felony.

2. An indictment charging that defendant, being intrusted with money and a check by his tenant, did willfully, unlawfully, fraudulently, and feloniously appropriate the same to his own use, with intent to embezzle and convert to his own use the said money and check, does not charge the crime of embezzlement, under Code, § 1014, declaring that an agent, employé, or servant who converts to his own use any money, goods, or other chattels, bank note, check, or other order for the payment of money, belonging to any other person, shall be guilty of embezzlement.

Appeal from superior court, Cherokee county; Coble, Judge.

O. L. Keith was convicted of embezzlement, and he appeals. Reversed.

The Attorney General, for the State.

FAIRCLOTH, C. J. The defendant stands indicted under Code, § 1014, for embezzlement. That section declares that "if any officer, agent, clerk, employé or servant of any corporation, person or co-partnership * * * shall embezzle or fraudulently convert to his own use, or shall take, make way with or secrete, with intent to embezzle or fraudulently convert to his own use any money, goods or other chattels, bank note, check or order for the payment of money, " etc., "belonging to any other person or corporation, * * * which shall have come into his possession or under his care, he shall be guilty of felony." The evidence is that Young, the prosecuting witness, cultivated the defendant's land, and was to pay One-half of the crop; that defendant took possession of the crop and sola it. The tobacco belonged to Keith and Young and the proceeds of sale belonged to Keith and Young, and Keith has never paid Young his share of the proceeds. Is this embezzlement? As a crime, embezzlement is unknown to the common law. A fraudulent appropriation to one's own use of the money or goods of another was only a breach oftrust, remediable...