State v. Wilson, 724.

• Decision Date: 02 February 1940
• Docket Number: No. 724.,724.
• Court: North Carolina Supreme Court
• Parties: STATE. v. WILSON.

217 N.C. 123

7 S.E.2d 11

STATE.

v.WILSON.

No. 724.

Supreme Court of North Carolina.

Feb. 2, 1940.

Appeal from Superior Court, Forsyth County; J. H. Clement, Judge.

W. T. Wilson was convicted of embezzlement, and he appeals.

New trial.

The defendant was charged in the bill of indictment with embezzlement, in that, while acting as guardian of the estate of John P. Charles, incompetent, he fraudulently and feloniously converted to his own use the sum of $700 belonging to said estate.

The State's evidence tended to show that upon the defendant's qualification as guardian of the estate of this ward on June 7, 1938, there were turned over to him by the former guardian United States Treasury notes of the par value of $700; that $600 par value of these notes were sold by the defendant June 14, 1938, for the sum of $611.52, and the proceeds converted to his own use. It was also in evidence that the defendant had been appointed public guardian in Forsyth County and as such had qualified as guardian of numerous other estates. The defendant testified in his own behalf and offered evidence tending to explain the transactions shown by the State's evidence and to negative the existence of fraudulent intent.

There was verdict of guilty, and from judgment imposing prison sentence, defendant appealed.

Harry McMullan, Atty. Gen., and T. W. Bruton and George B. Patton, Asst. Attys. Gen., for the State.

W. P. Sandridge, of Winston-Salem, for defendant.

DEVIN, Justice.

The defendant noted numerous exceptions during the trial, and the case on appeal is quite voluminous. However, in the view we take of the case, it will not be necessary to discuss all the exceptions noted and brought forward in the assignments of error, or to recite the evidence in detail, as we decide there must be a new trial for errors in the admission of certain testimony prejudicial to the defendant.

The defendant's motion to quash and his plea in abatement were properly overruled. The facts found by the trial judge sustain his ruling in this respect. Nor was there error in the denial of defendant's motion for judgment as of nonsuit under the statute, C.S. § 567, as the evidence was sufficient to be submitted to the jury as to all the elements of the criminal offense charged in the bill of indictment.

During the course of the trial the court permitted the solicitor, over defendant's objection to offer in evidence and read to the jury the minutes of a previous term of the court, December Term, 1938, containing report of statements made by the then presiding judge, Judge Sink, to the grand jury, including remarks by the solicitor and the foreman of the grand jury, relative to the necessity and importance of an audit of guardianship accounts in the county, reference being made to those of the public guardian. The State also offered other portions of the minutes of the December Term, including report by the foreman of the grand jury and the remarks of the presiding judge thereon, as follows:

"The grand jury, upon investigation of the administration of the public guardian, Mr. W. T. Wilson, as fully as it has been able to do from the partial report of the auditors under the court's order, and other available data, is of the opinion and finds as a fact that conditions are so chaotic and the records so poorly kept that the public interest absolutely demands that a receiver be appointed for the assets of Mr. Wilson and his wife individually, until such time as a proper accounting may be had, we, therefore, respectfully recommend such action at this time."

"Mr. Foreman and Gentlemen of the Grand Jury:

"The report the court has just read is one involving subject matter of great and vital interest to the people of Forsyth County and the State of North Carolina. It evidences a degree of resourcefulness that bespeaks its usefulness for the future. * * * You have suggested the appointment of a receiver, an unusual and so far as this court knows a course without precedent in North Carolina. The court is of the opinion, however, in the light of your findings of fact, that there is no alternative to appointing a temporary receiver and in the light of this recommendation, the solicitor of the Eleventh Judicial District, Honorable J. Erle McMichael, is herewith ordered and directed by the court to prepare the formal order providing for the appointment of Honorable Dallace McLennan as receiver for all assets, documents, records and papers pertaining to or relating to the public guardianship. The said order...