State v. Ray

• Decision Date: 28 January 1935
• Docket Number: 727.
• Citation: 178 S.E. 224,207 N.C. 642
• Parties: STATE v. RAY.
• Court: North Carolina Supreme Court

178 S.E. 224

207 N.C. 642

STATE v. RAY.

No. 727.

Supreme Court of North Carolina

January 28, 1935

Appeal from Superior Court, Orange County; Cranmer, Judge.

Clyde Ray was convicted on an indictment charging embezzlement, and he appeals.

New trial granted.

See also, 206 N.C. 736, 175 S.E. 109.

Criminal prosecution tried upon indictment charging the defendant (a person over the age of sixteen years) in one count, "as commissioner of the Superior Court of Orange County, and as agent of the Superior Court of Orange County, and the aforesaid parties," with receiving, having in his possession and embezzling, $2,955, the property of J. L Phelps and others, and in a second count, "as agent and attorney of J. L. Phelps and others," with receiving having in his possession and embezzling, the said $2,955 etc.

The evidence on behalf of the state tends to show that on December 8, 1930, in a special proceeding pending in the superior court of Orange county entitled ""John L. Phelps et al. v. Ida Hughes et al.," the defendant was appointed commissioner to sell the lands belonging to the estate of John Malone. The defendant entered upon his duties, sold the lands as directed, and took into his possession, as such commissioner, the proceeds derived therefrom, $4,365, and has failed to account for $2,955 of said funds, though repeated demands have been made upon him for their proper disbursement. The defendant told several of the heirs that "he had collected all the moneys," and Otis D. Blackwell testified: "He told me that he got all the money and he was going to pay it out right away, but he never did."

The clerk of the court testified: "In the statement filed Oct. 8, 1932, Mr. Ray admitted he had not accounted for $2,967. Later, certain credits cut it down to $2,955.00. I don't think all the heirs had been ascertained, but nothing came up about that until after this account was filed, showing the balance due at that time."

An account was carried by "J. Clyde Ray, Commissioner," at the Farmers' & Merchants' Bank of Hillsboro (which seems to have been opened on August 23, 1928), and between the dates of February 21, 1931 (when the account showed a balance of 88 cents), and October 23, 1931, deposits amounting to $4,429.10 were credited to said account. Numerous small checks, over 250 in number, were drawn against this account between February 23, 1931, and April 27, 1933. On the latter date the account showed a balance of 31 cents.

The defendant offered no evidence, but relied upon his motion to nonsuit.

The court, in charging the jury, defined embezzlement as follows: "I instruct you that embezzlement is a breach of trust by misapplying or converting the property entrusted to a person, when done with a fraudulent intent." Exception. And again: "Another definition of embezzlement is about the same thing, but in different words, gentlemen, is the fraudulent conversion of property by one who has lawfully acquired possession of it, for the use and benefit of another." Exception.

Verdict: Guilty in the manner and form as charged in the bill of indictment.

Judgment: Imprisonment in the state's prison for not less than three, nor more than five, years.

The defendant appeals, assigning errors.

S. M. Gattis, Jr., of Hillsboro, and R. O. Everett, of Durham, for appellant.

Dennis G. Brummitt, Atty. Gen., and A. A. F. Seawell and T. W. Bruton, Asst. Attys. Gen., for the State.

STACY Chief Justice.

In Peal v. Martin, 207 N.C. 106, 176 S.E. 282, 284, it was said: "A commissioner appointed by a court of equity to sell land is empowered to do one specific act, viz., to sell the land and distribute the proceeds to the parties entitled...