State v. Summers

• Decision Date: 08 May 1906
• Citation: 141 N. C. 841,53 S.E. 856
• Parties: STATE. v. SUMMERS.
• Court: North Carolina Supreme Court

53 S.E. 856

141 N. C. 841

STATE.

v.SUMMERS.

Supreme Court of North Carolina.

May 8, 1906.

1. Embezzlement—Intent—Restoration of Funds—Evidence.

In a prosecution for embezzlement, witness testified that he had in his pocket the amount claimed to have been embezzled which prosecutor claimed, and exhibited the money, whereupon his counsel asked him whether he was willing to deposit such money in the clerk's office to await the termination of a civil action between prosecutor and defendant involving an accounting of commissions. Held, that such question was properly excluded, as defendant's intent to restore the money or make good the loss constituted no defense to the embezzlement,

[Ed. Note.—For cases in point, see vol. 18, Cent. Dig. Embezzlement, § 34.]

2. Same —Felonious Intent — Burden of Proof.

In a prosecution for embezzlement, the burden was on the state to prove the felonious intent beyond a reasonable doubt.

Appeal from Superior Court, Guilford County; Shaw, Tudge.

George A. Summers was convicted of embezzlement, and he appeals. Affirmed.

John A. Barringer, for appellant.

The Attorney General, for the State.

BROWN, J. We have examined each of the 20 exceptions in the record with that care which the importance of the case to the defendant demands at our hands, and we have concluded that such of the rulings of the court below, as are at all doubtful as to their correctness, were entirely harmless to the defendant, and therefore do not constitute reversible error. We will not comment upon each exception seriatim, as it would needlessly prolong this opinion and j he of no value to our legal jurisprudence.

There is evidence in the record amply sufficient to go to the jury tending to prove that the defendant was the agent, at Greensboro, of the Singer Manufacturing Company and operated under a contract dated December 28, 1903, under which he was entitled to receive $15 per week and certain commissions. In the course of his employment the sum of $1,416.39 came into his possession, which, in accordance with the instructions of the Singer Company should have been deposited in the Greensboro National Bank and forwarded by check to the office of the company in Atlanta, Ga. The defendant instead placed the money to his own credit in the City National Bank in Greensboro and drew out $100 in cash and received the cashier's check for the remainder and left the state, going to Illinois, where he was afterwards arrested, and brought back to North Carolina. The defendant contended that the company was indebted to him in a sum larger than that which he retained, growing out of commissions due him on the sales of machines, and other transactions connected with the business of selling the same. He further contended that on account of his inability to obtain a settlement of his affairs with the company, he appropriated the amount in part payment of the sum due him from the company. The defendant testified in his own behalf and among other statements said: "I have got in my pocket now the $1,416.39 which the company claims is theirs." (Witness exhibits the money.) The defendant's counsel asked: "Are you willing to deposit that in the clerk's office to await the termination of the civil litigation in this case?" The court excluded the question. There was no error in refusing to admit this evidence. The fact that a party accused of embezzlement intended to restore the property embezzled, or even...