State v. Lanier
| Decision Date | 31 October 1883 |
| Citation | 89 N.C. 517 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. JERE LANIER. |
INDICTMENT for embezzlement tried at May Term, 1883, of NEW HANOVER Criminal Court, before Meares, J.
The bill of indictment is in substance as follows: The jurors, &c., present that Jere Lanier, &c., with force and arms, &c., being then and there employed as a servant of Addie P. McClammy, by virtue of his employment, and whilst he was so employed, did receive and take into his possession certain money, to-wit: seven dollars and fifty cents for, and in the name of, and on account of the said Addie P. McClammy, his mistress and employer, the said Lanier not being an apprentice, nor under the age of sixteen years; and the said money then and there fraudulently and feloniously did embezzle. And so the jurors, & c., do say, that said Lanier, in manner and form aforesaid, the said money, the property of said Addie P. McClammy, feloniously did steal, take and carry away, against the form of the statute, &c.
It was in evidence that Mrs. McClammy was a married woman, living with her husband, in the city of Wilmington, and that she owned several milch cows, and carried on and conducted the business of selling milk, in her own name, and that her husband had nothing to do with her milk business; that she took into her employment the defendant, whose duty it was to deliver the milk from day to day to her customers, and collect the money for the same and pay it over to her; the defendant sold and delivered to George Chadbourn, in the months of September and October, 1882, during a period of four consecutive weeks, eight dollars worth of milk, and during that time he collected and received two dollars per week from the purchaser, in payment of the same, and the defendant paid over only one dollar of the amount to his employer.
The counsel for the defendant asked the judge to instruct the jury, that Mrs. McClammy, being a married woman, and not a “Free Trader,” was incapable in law of making a contract with, or employing the defendant as her servant, and therefore he could not be convicted; refused, and the defendant excepted.
After a verdict of guilty, the defendant moved in arrest of judgment, upon the following grounds:
1. For want of certainty, because the indictment fails to set out the name of the person from whom the defendant received the money.
2. Because the indictment does not negative the fact that the defendant is not an apprentice under the age of sixteen years, and does not come within the exception contained in the statute.
The motion was overruled, and the defendant appealed from the judgment pronounced.
Attorney-General, for the State .
No counsel for defendant.
Upon a careful examination of the record, we are unable to discover any ground upon which the judgment should be arrested.
The first ground relied upon by the defendant is without foundation. It was not necessary to state in the indictment the name of the person from whom the money was received. The name of the person from whom the money is received is never set forth in the precedents of indictments for embezzlement. It could, therefore, make no difference whether the money was received from Chadbourn or his servants; but it no where appears in the record that it was received from a servant of Chadbourn.
The second ground is equally untenable. The indictment does expressly negative the fact that the defendant was an apprentice and under the age of sixteen years. The negation is that “the said Jere Lanier, not being then and there an apprentice, nor under the age of sixteen years.” It follows substantially the words of the statute.
We at first thought that the bill might be defective, because it purports to charge a larceny. When this case was before us at a former term (88 N. C., 658) we called the attention of the draughtsman to the distinction between an indictment under our statute (Bat. Rev., ch. 32, §136), which makes embezzlement a felony and punishes it as in larceny, and an indictment under the English statute of 7th and 8th GEORGE, which...
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State v. Maslin
... ... conspiracy, are alone adequate, being the terms most ... adequately expressing the idea, and requiring and admitting ... no aid from circumlocution." 3 Bishop's New Crim ... Procedure, § 322. In the indictment under review in State ... v. Lanier, 89 N.C. 517, the charge was expressed in the ... words, "and the said money then and there fraudulently ... and feloniously did embezzle." There was an additional ... averment of larceny, but the court held that it might be ... disregarded as superfluous, and that the charge of ... ...
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State v. Whitehurst
... ... master, embezzled any such money, goods, or other chattels, ... or otherwise converted the same to his own use, contrary to ... the trust and confidence in him reposed. (Brought forward in ... Battle's Revisal, c. 32, § 16.) See State v ... Lanier, 88 N.C. 658; Id., 89 N.C. 517 ... Then, ... in 1872, by Act of Assembly, adopted February 8 of that year, ... it was enacted: "If any officer, agent, clerk or servant ... of any corporation, or any clerk, agent or servant of any ... person or copartnership (except ... ...
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State v. Harris
...which also may amount to a charge of larceny, the latter words will be treated solely as a part of the charge for embezzlement. State v. Lanier, 89 N.C. 517, cited and 3. When and indictment charges several distinct offenses in different counts, whether felonies or misdemeanors, the court, ......
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State v. Brown, 8129SC854
...195 N.C. 537, 539, 143 S.E. 3, 5 (1928), rev'd on other grounds, State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971); State v. Lanier, 89 N.C. 517, 519 (1883). Defendant next argues that the indictment is inadequate because it fails to allege that he is at least 16 years old. He cites th......