State v. Shipman

• Decision Date: 06 April 1932
• Docket Number: 547.
• Citation: 163 S.E. 657,202 N.C. 518
• Parties: STATE v. SHIPMAN et al.
• Court: North Carolina Supreme Court

163 S.E. 657

202 N.C. 518

STATE v. SHIPMAN et al.

No. 547.

Supreme Court of North Carolina

April 6, 1932

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...