State v. Lancaster

• Decision Date: 27 January 1932
• Docket Number: 41.
• Citation: 162 S.E. 367,202 N.C. 204
• Parties: STATE v. LANCASTER.
• Court: North Carolina Supreme Court

162 S.E. 367

202 N.C. 204

STATE v. LANCASTER.

No. 41.

Supreme Court of North Carolina

January 27, 1932

Appeal from Superior Court, Edgecombe County; W. C. Harris, Judge.

John D Lancaster was convicted of embezzlement, and he appeals.

No error.

Although defendant only offered evidence as to his character permitting solicitor at conclusion of defendant's evidence to cross-examine witnesses summoned and sworn for defendant, but not offered as witnesses on matters not theretofore disclosed by evidence held not error.

The defendant was tried on the following bill of indictment "The jurors for the state upon their oath present: That John D. Lancaster, not an apprentice nor within the age of 16 years, late of the County of Edgecombe, on the -- day of January, 1930, with force and arms at and in the County aforesaid, then and there holding the office of Sheriff of said County, by virtue of said office did take into his possession $11,500.00, belonging to said County, and said money, so taken, feloniously, fraudulently, knowingly and willfully did embezzle, misapply and convert to his own use, against the form of the statute in such case made and provided, and against the peace and dignity of the State. Gilliam, Solicitor." The defendant pleaded not guilty. The jury returned a verdict of guilty.

The judgment of the court below is as follows: "It is considered, ordered and adjudged by the Court that the defendant be confined in the State's prison for a term of not less than two years nor more than six years, and that the Sheriff of Edgecombe County be charged with the execution of this judgment." The defendant made numerous exceptions and assignments of error, and appealed to the Supreme Court.

V. E. Fountain and Henry C. Bourne, both of Tarboro, for appellant.

D. G. Brummitt, Atty. Gen., and A. A. F. Seawell, Asst. Atty. Gen., for the State.

CLARKSON J.

The first question involved: Is it reversible error for the court to permit, over the objection of the defendant, testimony of witnesses for the state, as to an audit of public records made by them from such investigation of the records? We do not think it error.

Frank Gorham, a witness for the state, it is admitted is an accounting expert. He was a competent witness to testify. State v. Brewer, 202 N.C. 187, 162 S.E. 363; State v. Rhodes, 202 N.C. 101, 161 S.E. 722, 723.

Defendant was sheriff of Edgecombe county, N. C.; Gorham was employed by the commissioners of said county to make an audit of the books of the sheriff's office. It covers the period from July 1, 1929, to March 27, 1930. He testified, in part, as follows:

"Q. Did your audit show any difference between the amount collected in taxes by the Sheriff, Lancaster, and the amount for which he accounted to the proper authorities? A. Yes. The audit was made from the original tax levy that was furnished defendant by the County Accountant's office and from reports that had been made in defendant's office by his office help and from records in the County Accountant's office. The audit is based entirely on records which I found in the Sheriff's office and the auditor's (accountant's) office. The records in the Sheriff's office were delivered to me by some one in the office after the defendant had resigned and the records in the auditor's office were delivered to me by the auditor, M. L. Laughlin. As far as I know the records which I examined were the original county records. They were presented to me and the records were such as are kept in counties generally.

"Q. Was there any difference in the amount collected and the amount accounted for? A. Yes.

"Q. What was the difference? A. The difference was between amounts collected and reported and amount of deposits that were made to the Sheriff's account from which the various funds were paid--it was $13,190.58."

The court below admitted the evidence over objection of the defendant. The defendant excepted and assigned error. We do not think the exception and assignment of error can be sustained. The accounting expert went into detail showing the shortage.

In State v. Rhodes, supra, speaking to the subject: "Where a fact can be ascertained only by the inspection of a large number of documents made up of many detailed statements, it would be practically out of the question to require the entire mass of documents and entries to be read by or in the presence of the jury. As such examination cannot conveniently be made in court, the results may be shown by the person who made the examination. Wigmore on Evidence (2d Ed.) § 1234; Chamberlayne on Evidence [vol. 3] § 2317. The production of the documents and the privilege of cross-examination and of the introduction of evidence afford ample protection of the defendant's rights."

In Chamberlayne, The Modern Law of Evidence, Vol. 3, section 2317, we find: "A unique forensic situation in which the summary or conclusion of a witness customarily is received is where a very large number of entries, records or separate documents of any sort or kind are submitted. Under such circumstances, a competent witness is permitted to state, from his observation and examination, his conclusion as to what the papers show. The necessity for this concession lies not, as in case of ordinary conclusions, in the difficulty of laying original facts before the jury, provided that time could be spared for the purpose. No difficulty attaches to proving the individual facts of these separate entries. Nor is the subject-matter necessarily one of technical skill. The consumption of time, however, might well be unduly large concerning the existence of matters not seriously controverted. For the expediting of trials a presiding judge may well be justified in economizing the court's time by receiving the conclusion of the witness. The rights of the adverse party are frequently safeguarded by requiring the production of the original books of account or other documents. In other cases all that may be required is their presence in court, if demanded, or even their introduction into evidence, to render effective the extended cross-examination which will usually be accorded. As is abundantly shown in the foregoing decisions, the rule is equally applicable to criminal as to civil cases." (Italics ours.)

M. L. Laughlin, a witness for the state, testified, in part, that he was auditor of Edgecombe county. That the tax books made up by himself and assistants were turned over to the defendant sheriff October 1, 1929. The matter was called to the attention of the board of county commissioners, on March 13, 1930, of alleged difference between the collections of the sheriff and the amounts for which he had accounted. The board met that night, and defendant sheriff attended. "We asked him if he could not make a deposit to cover the amount of money that he was due the County, and he replied that he had about sixteen or seventeen thousand dollars in checks and money in his vault and that he would straighten out the matter the following day. About the 8th of March, after the accounts for the first of March had been audited and report had been made by Mr. Lancaster, I asked him for checks to cover the turn-over and he told me he would attend to it that afternoon.

"Q. How much did your records show he was due you at that time? A. About $23,000.00 just prior to the first of March."

This evidence was admitted over the objection of defendant; the defendant excepted and assigned error. We think from the authorities cited above, in this and other jurisdictions, the county accountant's testimony was competent.

The auditor further testified that the defendant, on March 14, deposited $7,044.07, and later one or two little deposits. At the request of the defendant, he was given further time. The auditor further testified that defendant said "that he didn't have any idea he was out of the way as much as he was, that if they would give him a little more time, say twenty-four hours, he would clear the matter up. They granted him four days time. We had another meeting on the night of March 24th, he was present only a small part of that meeting, the biggest thing he did was resign, and after he resigned he got out. At that meeting he made the statement that on the first Monday in March he was very busy, and the Road Board was meeting in his back office and two or three other people in there from Rocky Mount, and he had a bunch of money lying on his desk and he was called out, and when he returned, approximately $14,000.00 was gone. That was the first time he had said anything about that. He said he had not told it before because he was hoping to catch the one that did it. I made an audit from the records which were turned over to Mr. Lancaster and reports which were made in his office. ***

"Q. What was the difference according to your audit between the amount of money which he collected, total amount which he collected, and the total amount which he paid off? A. $14,756.32."

The above question and answer was objected to by defendant, and exception and assignment of error taken. For the reasons given in the authorities above cited, we think the evidence is competent.

W. E Page, chairman of the board of county commissioners, testified, in part, which is unobjected to: "The alleged shortage was called to my attention on March 13, by Mr. Laughlin. I called a meeting for that night and Mr. Lancaster was present. We talked to Mr. Lancaster about the alleged amount not turned over and he told us the reason he had not turned over the money, he had a few bad checks and did not want to get his entire book in bad shape, that his bank book was in balance, he said he had $16,000.00 or $17,000.00 in his vault and that he was holding it on account of the few bad checks that had...