State v. Ross, 577

• Citation: 157 S.E.2d 712,272 N.C. 67
• Decision Date: 22 November 1967
• Docket Number: No. 577,577
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. Neill McKay ROSS.

Page 712

157 S.E.2d 712

272 N.C. 67

STATE of North Carolina v. Neill McKay ROSS.

No. 577.

Supreme Court of North Carolina.

Nov. 22, 1967.

Atty. Gen. T. W. Bruton and Deputy Atty. Gen. Harry W. McGalliard, for the State.

Bryan & Bryan and D. K. Stewart, Dunn, for defendant appellee.

BOBBITT, Justice.

The crime of embezzlement, unknown to the common law, was created and is defined by statute. State v. Thornton, 251 N.C. 658, 111 S.E.2d 901, and cases cited.

Statutes creating criminal offenses must be strictly construed. 4 Strong, N.C. Index, Statutes § 5, p. 179. This rule has been applied with vigor in the construction of our embezzlement statute. State v. Whitehurst, 212 N.C. 300, 193 S.E. 657, 113 A.L.R. 740; State v. Eurell, 220 N.C. 519, 17 S.E.2d 669; State v. Blair, 227 N.C. 70, 40 S.E.2d 460.

In State v. Whitehurst, supra, Stacy, C.J., set forth the history, including the successive amendments, of our embezzlement statute. The statute, then codified as C.S. 4268, was amended in 1939 so as to apply to 'any receiver, or any other fiduciary' (Public Laws of 1939, Chapter 1), and in 1941 so as to apply to a 'bailee' (Public Laws of 1941, Chapter 31). The words 'unincorporated association or organization' were incorporated in G.S. § 14--90 by Chapter 819, Session Laws of 1967.

The statute, now codified as G.S. § 14--90, provides: 'If any person exercising a public trust or holding a public office, or any guardian, administrator, executor, trustee, Or any receiver, or any other fiduciary, or any officer or agent of a corporation, or any agent, consignee, clerk, Bailee or servant, except persons under the age of sixteen years, of any person, shall embezzle or fraudulently or knowingly and willfully misapply or convert to his own use, or shall take, make away with or secrete, with intent to embezzle or fraudulently or knowingly and willfully misapply or convert to his own use any money, goods or other chattels, bank note, check or order for the payment of money issued by or drawn on any bank or other corporation, or any treasury warrant, treasury note, bond or obligation for the payment of money issued by the United States or by any state, or any other valuable security whatsoever belonging to any other person or corporation, Unincorporated association or organization which shall have come into his possession or under his care, he shall be guilty of a felony, and shall be punished as in cases of larceny.' (Our italics.)

In State v. Ray, 207 N.C. 642, 178 S.E. 224, the defendant, appointed commissioner in a special proceeding, sold lands and collected the purchase price. He was indicted, tried and convicted on a two-count bill, each count charging that he embezzled a portion of the purchase money, to wit, the sum of $2,955.00. The first count charged that defendant received the $2,955.00 'as commissioner of the Superior Court of Orange County, and as agent of the Superior Court of Orange County, and the aforesaid parties,' and the second count charged that he received it 'as agent and attorney of J. L. Phelps and others.' The opinion states: '(T)he status of a commissioner appointed to sell land is not that of a trustee, generally speaking, nor of an agent, either of the court or of the parties to the suit. * * * The defendant could not be convicted on the second count as agent or attorney, but only on the first as commissioner. C.S. 4268. This distinction was not pointed out to the twelve. Indeed, the jury was left with the impression that both counts of the bill were valid, and that a conviction might be had on either or both.' The opinion continues: 'Whether the defendant had embezzled any part of the funds which came into his hands as commissioner, and not as agent or attorney, was the issue arising on the evidence. (Citations) This, and this alone, was the question to be determined by the jury. (Citation)' A new trial, limited to the first count, was awarded. The opinion and decision assume the first count charged the crime of embezzlement.

In State v. Whitehurst, supra, it was held that 'a receiver of an insolvent corporation (was) not within the terms of the statute.' While noting the rule of strict construction did not require that the statute 'be stintingly or even narrowly construed,' it was said the statute could not 'be extended by construction to persons not within the classes designated.' The opinion states: 'A receiver is usually denominated an officer of the court, an 'arm' or 'hand' of the court, but he holds no public office. (Citations) Nor is he engaged in exercising a public trust. (Citation) He is not an agent within the meaning of the embezzlement statute. (Citation) * * * Nor is he a trustee in the sense this term is used in the statute. The property he administers is said to be In custodia legis. * * * It may be noted, however, that the offense here charged apparently took place prior to the amendment of 1931, interpolating the word 'trustee,' and the term is not used in the indictment.' The opinion states that State v. Ray, supra, 'wherein a commissioner to sell land was charged with embezzlement, is not an authority in support of the present indictment. There, the bill was not challenged by demurrer or motion to quash, and its sufficiency was not mooted. The case was made to turn on the inadequacy of the court's charge to the jury.' The opinion closes with this suggestive comment: 'Whether the scope of the statute should again be enlarged, so as to include receivers, is a legislative, rather than a judicial question.' State v. Whitehurst, supra, was decided November 3, 1937. The General Assembly of 1939, by its enactment of Chapter 1, Public Laws of 1939, amended C.S. 4268 by adding after the comma following the word 'trustee' and before the words 'or any officer,' the...