State v. Ley
| Decision Date | 10 September 1919 |
| Docket Number | (No. 1.) |
| Citation | 100 S.E. 116 |
| Court | North Carolina Supreme Court |
| Parties | STATE. v. WIND LEY. |
Appeal from Superior Court, Beaufort County; Bond, Judge.
W. B. Windley was convicted of failing to nay over money received as sheriff to persons entitled thereto when lawfully required to do so, and he appeals. New trial.
The charge in the indictment is that the defendant had unlawfully, willfully, and feloniously, as sheriff of Beaufort county, failed to pay over and deliver to the proper persons entitled to receive the same, when lawfully required to do so, certain money and funds which he had received by virtue or color of his office, in trust, contrary to the provision of the statute. The indictment was drawn under Revisal, § 3408, and this is stated in the brief of the state, which refers to the original statute, Code of 1883, § 1016, as having been amended, in consequence of the decision in State v. Connelly, 104 N. C. 794, 10 S. E. 469, by Public Laws of 1891, c. 241, and brought forward in the Revisal as section 3408.
There was evidence tending to show that the defendant had collected certain taxes, especially unlisted taxes, such as license and privilege taxes, and had failed to pay over the same to the officer designated by the law to receive them. The court instructed the jury that if they believed the defendant's testimony which he gave in his own behalf, and found the facts to be as it tends to show them to be, it would be their duty to return a verdict of guilty on the first count, ignoring the count for embezzlement.
E. A. Daniel, Jr., and Small, MacLean, Bragaw & Rodman, all of Washington, N. C, for appellant.
James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.
WALKER, J. (after stating the facts as above). [1] If we assume that the testimony of the defendant was of such a nature as to warrant the instruction to the jury, we are of the opinion that the court erred in further telling them, in answer to the question of one of the jurors, that they should convict the defendant if he simply received certain money and failed to pay it to the proper party, though he may have paid it to the county treasurer. The first part of section 3408 of the Revisal of 1905 relates to the embezzlement or willful and corrupt use or misapplication of funds held by any officer, agent, or employe of any city, county, or incorporated town, or of any penal, charitable, religious, or educational institution, and denounces it as a felony, and that any such person convicted of the same shall be fined and imprisoned in the penitentiary for a time to be fixed by the court in the exercise of its discretion. The next provision of the section applies to the embezzlement, wrongful conversion, or corrupt use or misapplication to any purpose, other than that for which it is held, of any money funds, securities, or other property, which such officer shall have received, by virtue or color of his office, in trust for any person or corporation, and such act is declared to be a felony. The statute, as amended in the year 1891, is composed of this provision, and the last one in the section (amendment of 1891), which is as follows:
The first part of the amendment refers to the embezzlement, conversion, etc., of money, funds, and other tilings held in trust for any person or corporation, and the second part to the failure or neglect of the officers to account for and deliver over to their successors in office, or to other persons who are lawfully entitled to receive the same, all such moneys, funds, etc.; which means, by the use of the word "such, " all the money or funds, etc., held in trust by such officers for any person or corporation. The court held in State v. Connelly, 104 N. C. 794, 10 S. E. 469, that the statute, as then worded, applied only to the public officers who are designated in the same, and to private persons who held money or property in trust for the public corporations named therein, and therefore that Connelly, as clerk of the superior court, who held funds belonging to a distributee, private person, or corporation, was not indictable for failing to pay or deliver it to the person entitled thereto. At the next session of the Legislature after that case was decided the statute was amended, as indicated above, so as to cover such a case. But the Legislature has not failed to provide very fully for the case presented in this record. Revisal, § 3576, is as follows:
"If any state or county officer shall fail, neglect or refuse to make, file or publish, any report, statement or other paper, or to deliver to his successor all books and other property belonging to his office, or to pay over or deliver to the proper person all moneys which come into his hands by virtue or color of his office, or to discharge any duty devolving upon him by virtue of his office as he is by law required to do, he shall be guilty of a misdemeanor."
The language of this section is very broad, and seems to include every case where any officer named therein has failed to pay to the proper person, whoever he may be, all moneys received by virtue or color of his office. The offense is made a misdemeanor, and punishable as such under the law. But it is suggested that the jury are presumedto have followed the judge's instruction that a verdict of guilty should be rendered by them, if they found only that defendant had received certain money, as taxes, and failed to pay it over to the proper party, and that such a verdict, upon the only count in the indictment they were directed to consider, would mean no more, and would not be one for embezzlement, and that, as the jury convicted under this instruction, the verdict should be taken as convicting only for the offense described in the charge; that this offense, though not a felony, but simply a misdemeanor, under Revisal, § 3576, is included in the general allegations of the count, and therefore the verdict should stand as one convicting defendant of the misdemeanor, and the punishment imposed accordingly, the words "willfully and feloniously" being regarded as mere surplusage.
This would be dangerous practice, even if we admit the premises and the conclusion drawn from them. The defendant was convicted of the felony, and the jury so declared when they rendered the verdict, which means, when properly construed, guilty of the offense charged in the bill of indictment, which is a felony, because it is made so by the statute. The jury did not return as their verdict that he was guilty of the misdemeanor charged in the bill, even if such a verdict would be a legal and valid one, as to which we do not decide, it not being neccessary that we should do so.
There is another consideration. As this verdict stands now the defendant has been convicted of a felony, and if the verdict is permitted to stand he will be deprived of his right to vote and to hold office, under article 6, §§ 2 and 8, of the Constitution, and the punishment may extend to confinement in the state prison at hard labor. This but shows the great importance of a close scrutiny of the record to see if the defendant has been properly convicted of the felony charged in the bill, or whether, if guilty at all, his offense is only a misdemeanor. It is all too serious a charge for the record to be left in any state of uncertainty. The court thought that the defendant had been convicted of a felony, as it sentenced him to be imprisoned three years in the penitentiary.
But, leaving this matter here, we are of the opinion that in any view, whether it be a felony or a misdemeanor,...
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