Appeal
from Superior Court, Transylvania County; Sink, Judge.
T. H
Shipman, J. S. Silversteen, and Ralph Fisher were convicted
under an indictment charging that they, together with others
conspired to defraud Transylvania County and to misapply
funds of the county, and J. H. Pickelsimer, C. R. McNeely, A
M. White, S. R. Owen, and W. L. Talley were convicted under
the same indictment and also under another indictment, which
was consolidated therewith, charging that they, together with
their codefendants, embezzled and feloniously misapplied
money belonging to the county with intent to defraud, and all
defendants appeal.
As to
all defendants except A. M. White, S. R. Owen, and W. L
Talley, no error; and as to defendants White, Owen, and
Talley, reversed.
In
prosecution for conspiring to misapply county funds, evidence
as to certain county commissioners held sufficient for jury,
and insufficient as to other commissioners (C.S. § 4270).
The
defendants were tried under the following bills of
indictment, viz.:
"State
of North Carolina, Superior Court.
"Transylvania
County, Spring Term, A. D. 1931.
"The
Jurors for the State upon their oath present, that T. H.
Shipman, J. S. Silversteen, Ralph Fisher, J. H.
Pickelsimer, C. R. McNeely, A. M. White, S. R. Owen and W.
L. Talley, late of the County of Transylvania, on the 13th
day of September, A. D., 1930, in the County aforesaid, was
the agent, consignee, clerk, employee and servant of one
Transylvania County, and as such agent, consignee, clerk,
employee and servant as aforesaid, was then and there
entrusted by the said Transylvania County to receive cash,
money, securities, notes and bonds for the said
Transylvania County.
"And
that being so employed and entrusted as aforesaid, the said
Shipman, Silversteen, Fisher, Pickelsimer, McNeely, White,
Owen and Talley then and there did receive and take into
his possession and have under his care for and on account
of the said Transylvania County, certain property, towit:
cash, money, securities, notes and bonds of the value of
one hundred thousand ($100,000) dollars.
"And
that afterwards, to-wit, on the day and year aforesaid, in
the county aforesaid, they, the said defendants above named
(then and there being of age of 16 years and more and not
an apprentice), knowingly, wilfully, fraudulently,
corruptly, unlawfully and feloniously did embezzle and
convert and feloniously misapply and did take, make away
with and secrete with intent to embezzle and fraudulently
misapply cash money, securities, notes and bonds of the
value of the said sum of one hundred thousand ($100,000.)
dollars so received by them as aforesaid and then and there
belonging to the said County of Transylvania, with intent
to defraud against the form of the statute in such cases
made and provided and against the peace and dignity of the
State.
"J.
Will Pless, Jr., Solicitor."
"The
Jurors for the State, upon their oaths, do present, that T.
H. Shipman, being President of the Brevard Banking Company,
a corporation organized and existing under the laws of the
State of North Carolina, J. S. Silversteen, being Chairman
of the Board of Directors of said Brevard Banking Company,
and J. H. Pickelsimer, C. R. McNeely, A. M. White, S. R.
Owen, and W. L. Talley, comprising the Board of County
Commissioners of Transylvania County, North Carolina, and
Ralph Fisher, attorney for the said Board of County
Commissioners, at and in Transylvania County, on the 13th
day of September, 1930, with force and arms, unlawfully,
wilfully, knowingly, designedly, fraudulently and
feloniously did combine, conspire and confederate to and
with each other by various false pretenses and false
representations, to cheat and defraud Transylvania County,
and to abstract, misapply, pervert, and misappropriate the
money, funds, credits and securities of the said County in
the sum of one hundred thousand ($100,000) dollars, by
falsely and knowingly representing that the monies, funds
and revenues with which to pay certain obligations and
indebtedness and operating expenses of said county, were
exhausted and that it was necessary to sell a note of the
said county for the sum of one hundred thousand ($100,000)
dollars with which to pay the same, whereas, in truth and
in fact the said Transylvania County then and there had on
deposit and to its credit, in the said Brevard Banking
Company, the sum of $575,929.64; the note of said
Transylvania County being offered for sale and sold for the
benefit of the said Brevard Banking Company, which said
Brevard Banking Company was then and there insolvent or in
imminent danger of insolvency and was unable to meet the
usual requirements of its customers and depositors in the
regular course of business; against the peace and dignity
of the State.
"J.
Will Pless, Jr., Solicitor."
The
jury returned the following verdict as to the defendants
Shipman, Silversteen, and Fisher: "Guilty upon the count
of conspiracy with the recommendation of mercy, and not
guilty as to misapplication; and as to each and every of the
other defendants, guilty as to both counts with the
recommendation for mercy."
The
jury that convicted the defendants was a special venire from
Haywood county, N.C. C. S. § 473 (Public Laws 1931, chap.
308). The court below sentenced defendants and also disbarred
Ralph Fisher, an attorney at law, who was convicted. C. S. §
205, as amended.
The
following stipulation between the state and the defendants
was entered into:
"For
the purpose of avoiding unnecessary delay in the trial of
this cause, it is agreed that at the time of the alleged
offense and for six months preceding it,
"First:
That the Brevard Banking Company was a banking corporation
duly organized and existing under the laws of the State of
North Carolina, with its principal office in the Town of
Brevard, North Carolina, and was engaged in general
commercial banking business.
"Second:
T. H. Shipman was the President of the Brevard Banking
Company, and acted in that capacity until the date of its
closing, December 15, 1930.
"Third:
J. S. Silversteen was a director, stockholder and Chairman
of the Board of Directors and Inactive Vice-President of
said Brevard Banking Company, and was such until the date
of its closing, December 15, 1930.
"Fourth:
That Brevard Banking Company was closed and was taken over
under the direction of the Banking Department of the North
Carolina Corporation Commission for the purpose of
liquidation on December 15, 1930.
"Fifth:
That W. W. Woodley, Jr., was duly appointed liquidating
agent for the purpose of liquidating the said Bank, and is
at present still acting in that capacity.
"Sixth:
That J. H. Pickelsimer, C. R. McNeely, A. M. White, S. R.
Owen and W. L. Talley, comprised the Board of County
Commissioners of Transylvania County, having been elected
in November, 1928, inducted into office on the first Monday
in December, 1928, and acting in that capacity from that
time until the expiration of their terms of office on
December 1st, 1930.
"Seventh:
That J. H. Pickelsimer was the Chairman of the Board of
County Commissioners of Transylvania from December, 1928,
until December, 1930.
"Eighth:
Ralph Fisher was County Attorney for the Board of County
Commissioners during its entire term of office.
"Ninth:
C. R. McNeely was County Accountant filling the duties of
Accountant for Transylvania County, and remained such until
December 1, 1930."
The
defendant made numerous exceptions and assignments of error
and appealed to the Supreme Court. The material ones and
necessary facts will be considered in the opinion.
Johnson,
Smathers & Rollins, T. A. Uzzell, Jr., and Moore Bryson, all
of Asheville, for appellant Shipman.
Merrimon,
Adams & Adams, of Asheville, for appellant Silversteen.
Lewis
Hamlin, of Brevard, and Jones & Ward, of Asheville, for
appellants Fisher, Pickelsimer, McNeely, White, Owen, and
Talley.
D. G.
Brummitt, Atty. Gen., and A. A. F. Seawell, Asst. Atty. Gen.,
for the State.
CLARKSON
J.
At the
close of the state's evidence, the defendants made
motions to dismiss the action or for judgment of nonsuit. C.
S. § 4643. We think the motions should have been granted as
to White, Owen, and Talley. Was there sufficient evidence as
to the guilt of the other defendants to have been submitted
to the jury? We think so.
"On
motion to dismiss or judgment of nonsuit, the evidence is to
be taken in the light most favorable to the state, and it is
entitled to the benefit of every reasonable intendment upon
the evidence and every reasonable inference to be drawn
therefrom. *** The evidence favorable alone to the state is
considered; defendant's evidence is discarded. State
v. Utley, 126 N.C. 997, 35 S.E. 428. The competency,
admissibility, and sufficiency of evidence is for the court
to determine; the weight, effect, and credibility is for the
jury. State v. Utley, supra; State v. Blackwelder, 182 N.C.
899, 109 S.E. 644." State v. Lawrence, 196 N.C.
at page 564, 146 S.E. 395, 396; State v. Casey, 201
N.C. at page 203, 159 S.E. 337. The evidence in the present
case was mostly circumstantial. The defendants introduced no
evidence.
The
court below instructed the jury: "The Court instructs
you now that the duty is upon the State to satisfy you beyond
a reasonable doubt of the defendant's guilt, and it is
the privilege of the defendants and each of them, to offer
evidence or not to do so and the fact that they have not gone
upon the stand is not to be considered to their prejudice and
you will not so consider it as to them." C. S. § 1799.
The
right of the defendant to offer testimony of his good
character...
