State v. Maslin

• Citation: 143 S.E. 3,195 N.C. 537
• Decision Date: 02 May 1928
• Docket Number: 338.
• Parties: STATE v. MASLIN.
• Court: North Carolina Supreme Court

143 S.E. 3

195 N.C. 537

STATE v. MASLIN.

No. 338.

Supreme Court of North Carolina

May 2, 1928

Appeal from Superior Court, Forsyth County; Stack, Judge.

Thomas Maslin was convicted of embezzlement, and he appeals. No error.

Cross-examination of defendant, as witness, as to indictments for other offenses, held proper.

The indictment contains three counts; the first being as follows The jurors for the state upon their oath present that Thomas Maslin, late of the county of Forsyth, on the 7th day of March, A. D., 1921, at and in the county aforesaid, being then and there an officer, agent, and director of the Merchants' Bank & Trust Company, a corporation duly created, organized, and existing and operating under the banking laws of North Carolina, and engaged in the banking business in the city of Winston-Salem, county and state aforesaid, unlawfully, willfully, and feloniously did embezzle the sum of $9,770 of the moneys, funds and credits in the possession of, and held in trust by, the said Merchants' Bank & Trust Company, belonging to one E. K Polites, with intent to defraud, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.

In the second count the word "abstract" takes the place of "embezzle" in the first, and the words "with intent to defraud" in the first are changed in the second into the phrase, "with intent to defraud and injure the said Merchants' Bank & Trust Company and the said B. K. Polites."

The third count is a transcript of the second, with the word "misapply" substituted for "abstract."

The jury returned a general verdict of guilty, and, from the judgment pronounced, the defendant appealed upon exceptions and assignments of error referred to in the opinion.

Swink Clement & Hutchins, of Winston-Salem, and F. P. Hobgood, Jr., of Greensboro, for appellant.

Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

ADAMS J.

In addition to demurring thereto, the defendant moved to quash each count in the bill of indictment. He assails the first on the ground that it contains no description of the funds, no recital of the number of transactions composing the embezzlement, no averment that the funds came into his actual possession by reason of his official relation to the bank, or that he converted them to his own use, or that he did any of the forbidden acts with intent to defraud or injure the bank or any person or corporation, or to deceive an officer of the bank or an agent appointed to examine its affairs.

As to the second count, it is objected that it has no averment of a description of the funds, of the number of transactions, or of loss to the bank by reason of the abstracted funds, or that the abstraction was made without the consent of the bank, or with intent to defraud the bank or any person or corporation, or to deceive the bank or its examiner. Similar objections are made to the third count, which charges the misapplication of moneys, funds, and credits in the possession of and held in trust by the bank. The motion and the demurrer were overruled, and the defendant excepted.

This ruling was free from error. The statutes which were in effect at the time the several acts are charged in the indictment to have been committed denounce the embezzlement, the abstraction, and the misapplication of a bank's moneys, funds, or credits by any of its officers, agents, or directors. C. S. § 4401; C. S. vol. 3, § 224(e). The act which amended section 224(e), Toomey v. Lumber Co., 171 N.C. 178, 88 S.E. 215, was ratified and made effective on February 25, 1927. Public Laws 1927, c. 47, § 16.

Embezzlement was not an offense at common law. State v. McDonald, 133 N.C. 680, 45 S.E. 582. It is made a crime by statute; and ordinarily an indictment will be deemed adequate if it charges the defendant with all the acts embraced within the statutory definition, or if it employs so many of the substantial words of the statute as will enable the court to determine the one on which it is framed. 2 Bishop's Crim. Procedure, § 611 et seq.; 1 Wharton's Crim. Law (11th Ed.) § 230, note 2; State v. Heaton, 81 N.C. 543; State v. Sauls, 190 N.C. 810, 130 S.E. 848. Tested by this principle, each of the counts is sufficient in law.

An analysis of the first count discloses these component averments: (1) The defendant was an officer, agent, and director of the bank; (2) moneys, funds, and credits, the property of E. L. Polites, were in the possession of and were held in trust by the bank; (3) the defendant unlawfully, willfully, and feloniously embezzled $9,770 of these funds, with intent to defraud. The agency, the receipt of the property in the course of business, the name of the owner, and the embezzlement, are clearly set forth. It was not necessary to aver or to prove that the money or funds had been committed by the bank to the custody of the defendant or that there had been any breach of trust or confidence except that which arose out of the relation between the bank and the defendant. State v. Gulledge, 173 N.C. 746, 91 S.E. 302. Nor was it necessary to charge in the very words that the defendant had converted the property to his own use. The word "embezzle" has a technical meaning. "It is believed that the single statutory words 'did embezzle' sufficiently indicate the criminal act; just as 'did burn' in arson, 'did make an assault' in assault, 'did solicit' in attempt, 'did break and enter' in burglary, and 'did conspire' in 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 embezzlement was adequate; this for the reason that "to embezzle" means to misappropriate as well as to convert to one's own use. State v. Foust, 114 N.C. 842, 19 S.E. 275. The intent to defraud was sufficiently set out without specifically naming any particular victim of the preconceived purpose. C. S. § 4621; State v. Switzer, 187 N.C. 88, 121 S.E. 43.

As we have not discovered any fatal defect in the first count, the verdict would not be vitiated by insufficiency of the second or third. The jury convicted the defendant upon a general verdict which covers all the counts, and, if either count is good, the verdict will be upheld because the offenses charged are of the same grade and punishable to the same extent. State v. Hammond, 188 N.C. 602, 125 S.E. 402; State v. McAllister, 187 N.C. 400, 121 S.E. 739; State v. Strange, 183 N.C. 775, 111 S.E. 350; State v. Klingman, 172 N.C. 947, 90 S.E. 690. But we do not intimate that the last two counts are in anywise defective. They are laid substantially...