State v. Springer

• Decision Date: 12 July 1973
• Docket Number: No. 72,72
• Citation: 197 S.E.2d 530,283 N.C. 627
• Parties: STATE of North Carolina v. Frank Thomas SPRINGER, Jr.
• Court: North Carolina Supreme Court

Page 530

197 S.E.2d 530

283 N.C. 627

STATE of North Carolina v. Frank Thomas SPRINGER, Jr.

No. 72.

Supreme Court of North Carolina.

July 12, 1973.

John H. McMurray, Morganton, for defendant appellant.

Robert Morgan, Atty. Gen., C. Diederich Heidgerd, Associate Atty., Raleigh, for the State.

HUSKINS, Justice:

Defendant is charged with unlawfully, willfully and feloniously withholding a credit card from Mabel L. Long, the cardholder, in violation of G.S. § 14--113.9(a)(1). That subsection reads as follows:

' § 14--113.9. Credit card theft.--(a) A person is guilty of credit card theft when:

(1) He takes, obtains or withholds a credit card from the person, possession, custody or control of another without the cardholder's consent or who, with knowledge that it has been so taken, obtained or withheld, receives the credit card with intent to use it or to sell it, or to transfer it to a person other than the issuer or the cardholder.'

Acts dealing with credit card crimes have been enacted in nearly all states in recent years. In defining credit card theft, the majority of these acts have been drafted with much greater clarity than ours. Georgia and Virginia have followed out statute almost verbatim. See Georgia Code Ann. § 26--1705.2 (1972); Virginia Code Ann. § 18.1--125.3 (Supp.1972). The better drafted version enacted in many other states is illustrated by Arizona Stat.Ann. § 13--1073, subsec. A (Supp.1972).

Our statute almost defies analysis. Apparently, an accused may violate G.S. § 14--113.9(a)(1) in four distinct ways. Compare State v. Albarty, 238 N.C. 130, 76 S.E.2d 381 (1953). He may (1) Take, (2) obtain, or (3) Withhold a credit card from the person, possession, custody or control of another without the cardholder's consent; or (4) he may receive a credit card with intent to use it or sell it or transfer it to some person other than the issuer or cardholder, knowing at the time that the card had been so taken, obtained or withheld. A person violating G.S. § 14--113.9(a)(1) in any of the four enumerated ways is guilty of credit card theft. Of course, a person who commits the acts proscribed by G.S. § 14--113.9(a)(2), (3) and (4) is also guilty of credit card theft.

Before pleading, defendant moved to quash the bill of indictment on the ground that it is fatally defective in failing to describe the Bankamericard by number. Denial of his motion is assigned as error.

The bill alleges that the card was issued to Mabel L. Long on 20 September 1971, while the State's evidence tends to show that it was issued to her on 15 September 1971. Defendant argues that this discrepancy together with absence of a credit card number renders the bill of indictment fatally defective and subject to quashal.

While a motion to quash is an appropriate method of testing the sufficiency of the bill of indictment to charge a criminal offense, it lies only for a defect appearing on the face of the warrant or indictment. State v. McBane, 276 N.C. 60, 170 S.E.2d 913 (1969); State v. Turner, 170 N.C. 701, 86 S.E. 1019 (1915). 'The court, in ruling on the motion, is not permitted to consider extraneous evidence. Therefore, when the defect must be established by evidence Aliunde the record, the motion must be denied.' State v. Cochran, 230 N.C. 523, 53 S.E.2d 663 (1949); State v. Bass, 280 N.C. 435, 186 S.E.2d 384 (1972). The sole exception to this rule is noted in State v. Underwood, 283 N.C. 154, 195 S.E.2d 489 (1973).

When these principles are applied to the bill of indictment under attack, it is quite apparent that defendant's motion to quash was properly denied. No defect appears on the face of the indictment. The credit card allegedly withheld is sufficiently described to inform the accused with certainty as to the crime he allegedly committed. Had there been any additional information necessary to the preparation of his defense, he could have requested a bill of particulars prior to the trial. Defendant's first assignment is overruled.

Fred Holt, a special investigator with Bankamericard, North Carolina National Bank, in Greensboro, testified that the bank's IBM computer printout is the official record pertaining to credit cards. Over objection, he was permitted to testify that the official computer printout regarding credit card 434 215 027 2369, issued to Mabel L. Long, showed: (1) That said card was issued on 15 September 1971; (2) that as of 4 February 1972 when the card was reported missing Mrs. Long's balance owed was $7.12; (3) that since 4 February 1972 the card had been used seventy-three times in twenty-two North Carolina cities for purchases totaling $1,209.63, which amount is currently due according to the printout; and (4) that said card was last used on 30 March 1972 in connection with a purchase from Shamrock Hardware in Charlotte. Admission of this testimony constitutes defendant's second assignment of error.

Modern business conditions and methods have long since required revision of the rule of evidence formerly observed by the courts limiting proof of business transactions to matters within the personal knowledge of the witness. See Insurance Co. v. R.R., 138 N.C. 42, 50 S.E. 452 (1905); Flowers v. Spears, 190 N.C. 747, 130 S.E. 710 (1925). 'The impossibility of producing in court all the persons who observed, reported and recorded each individual transaction gave rise to the modification which permits the introduction of recorded entries, made in the regular course of business, at or near the time of the transaction involved, and authenticated by a witness who is familiar with them and the method under which they are made. This rule applies to original entries made in books of account in regular course by those engaged in business, when properly identified, though the witness may not have made the entries and may have had no personal knowledge of the transactions.' Supply Co. v. Ice Cream Co., 232 N.C. 684, 61 S.E.2d 895 (1950).

Few courts have dealt with the use in evidence of business records stored on computers. In King v. State for Use and Benefit of Murdock Acceptance Corp., 222 So.2d 393 (Miss.1969), it was held that printout sheets of business records stored on electronic computing equipment 'are admissible in evidence if relevant and material, without the necessity of identifying, locating, and producing as witnesses the individuals who made the entries in the regular course of business if it is shown (1) that the electronic computing equipment is recognized as standard equipment, (2) the entries are made in the regular course of business at or reasonably near the time of the happening of the event recorded, and (3) the foundation testimony satisfes (sic) the court that the sources of information, method and time of preparation were such as to indicate its trustworthiness and justify its admission.' See also Transport Indemnity Co. v. Seib, 178 Neb. 253, 132 N.W.2d 871 (1965); Railroad Commission v. Southern Pacific Co., 468 S.W.2d 125 (Tex.Civ.App.1971); Arnold D. Kamen & Co. v. Young, 466 S.W.2d 381 (Tex.Civ.App.1971); McCormick, Evidence § 314 (2d ed. 1972); Comment, Admissibility of Computer Business Records as an Exception to the Hearsay Rule, 48 N.C.L.Rev. 687 (1970); Note, Admissibility of Computer Kept Business Records, 55 Cornell L.Rev. 1033 (1970); Annot., 11 A.L.R.3d 1368 (1967).

The General Assembly of North Carolina has enacted the following statutes, almost identical, dealing with the subject:

' § 55--37.1. Form of records.--Any records maintained by a corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or be in the form of, punch cards, magnetic tape, photographs, microphotographs, or any other information storage device provided that the records so kept can be converted into clearly legible form within a reasonable time. Any corporation shall so convert any records so kept upon the request of any person entitled to inspect the same. Where records are kept in such manner, the cards, tapes, photographs, microphotographs or other information storage device together with a duly authenticated print-out or translation shall be admissible in evidence, and shall be accepted for all other purposes, to the same extent as an original written record of the same information would have been.' Session Laws 1969, c. 751, § 14.

' § 55A--27.1. Form of records.--Any records maintained by a corporation in the regular course of its business, including its books of account and minute books, may be kept on, or be in the form of, punch cards, magnetic tape, photographs, microphotographs, or any other information storage device; provided that the records so kept can be converted into clearly legible form within a reasonable time. Any corporation shall so convert any records so kept upon the request of any person entitled to inspect the same. Where records are kept in such manner, the cards, tapes, photographs, microphotographs or other information storage device together with a duly authenticated readout or translation shall be admissible in evidence, and shall be accepted for all other purposes, to the same extent as an original written record of the same information would have been.' Session Laws 1969, c. 875, § 6.

These statutes were designed to give broad legislative approval to the use in evidence of corporate computer records. However, in declaring such computer records admissible in evidence 'to the same extent as an original written record of the same information would have been,' these statutes do not deal with the special problems of reliability created by the use of computers. See Note, supra, 55 Cornell L.Rev. 1033 (1970). We therefore construe them as authorizing the admission of corporate computer records under appropriate safeguards deemed sufficient to render them trustworthy. These statutes do not, and were not designed to, preclude judicial development of workable standards for the admission...