State v. Tennant

• Decision Date: 11 November 1942
• Docket Number: 435.
• Parties: STATE v. TENNANT.
• Court: North Carolina Supreme Court

22 S.E.2d 552

222 N.C. 277

STATE
v.
TENNANT.

No. 435.

Supreme Court of North Carolina

November 11, 1942

Criminal prosecution tried on bill of indictment charging the crime of embezzlement.

Defendant and one C. W. Tennant of Alabama went to Apex in November or December, 1941. C. W. Tennant leased certain property designed for use as a filling station and defendants, representing that they were brothers, opened and began to operate a service station as partners. The station was operated in the name of C. W. Tennant Service Station. On December 2, C. W. Tennant procured the delivery of tires, tubes and other auto accessories by Calloway Tire & Service Company, wholesale dealers in automobile accessories, under a verbal assignment agreement. It was agreed that the consignment agreement would be reduced to writing later. On December 8, defendant came to Raleigh, obtained additional merchandise from the same firm and carried it to the station in Apex. On December 9, an agent of the prosecutor carried a written consignment agreement to Apex for execution. This agreement was signed by defendant in the name of C. W. Tennant and in his assumed name on his own behalf. Ten or twelve days later the merchandise had disappeared and the station was closed. Defendant was arrested in Alabama and C. W. Tennant was arrested in Atlanta.

The State offered evidence tending to show that a large part, if not all, of the consigned merchandise was carried out of the State by automobile and sold or otherwise disposed of. There was other incriminating evidence.

Defendant and his associate admit that the merchandise was sold but contend it was disposed of in the regular course of business in Apex. They make no contention that it was ever accounted for.

There was a verdict of guilty. From judgment thereon defendant appealed.

A. B. Breece, of Raleigh, for appellant.

Harry McMullan, Atty. Gen., and George B. Patton and Hughes J. Rhodes, Asst. Attys. Gen., for the State.

BARNHILL, Justice.

Defendant's assignment of error, based on his exception to the refusal of the court to dismiss as of nonsuit under C.S. § 4643, cannot be sustained. The evidence, when considered in the light most favorable to the State, tends to show a deliberate scheme on the part of the defendant and his associate to obtain possession of merchandise under the guise of bona fide retail dealers, to surreptitiously remove it from the State, convert the proceeds to their own use and then to...