State v. . Fain , 106 N.C. 760 ( 1890 )

If there was any evidence reasonably sufficient to go to the jury, its weight, as has been said time and again, is a question with which this Court has nothing to do. That is exclusively within the province of the jury.

The evidence on behalf of the State, if believed, sufficiently established the facts that the defendant received the note executed by Perry Allen to collect for Kisselburg; that he was Kisselburg's agent to collect; that he surrendered it to Perry Allen for the consideration testified to by Perry Allen; that it was destroyed upon being so surrendered; that, when called on by Kisselburg for the note, or its proceeds, defendant said he had not been able to collect it, but had it among his papers, and, when called on again for it, he said he had collected nothing on it, and still had it, but had mislaid it. These facts and denials, and concealment, if believed, undoubtedly constituted evidence.

They were denied by the defendant and presented questions of fact for the jury.

The value of the note, if it had any, is not an essential element in the crime, and it was only necessary to prove that it had some value.

We need not consider whether the defendant, by agreement with Kisselburg, had an interest in what might be realized on the note or not — that was a question of fact, and his Honor's charge was, in this respect, all that the defendant, could rightfully ask. If the facts were as testified to by the defendant, under the charge of the court, he was not guilty, but if they were as testified to on behalf of the State, he was guilty, and the verdict was with the State. There was no error in the refusal of the court to instruct the jury that there was no evidence, or in the instruction given.

The defendant moved in arrest of judgment upon the ground that no indictable offense was charged, etc.

Embezzlement is not a common-law crime, but depends (765) entirely upon statute. By section 1014 of The Code, it is enacted that: "If any officer, agent . . . of any corporation, person or copartnership (except apprentices and other persons under sixteen years of age), shall embezzle or fraudulently convert to his own use, or shall take, make way with or secrete, with intent to embezzle or fraudulently convert to his own use any money, goods or other chattels, banknote . . . or other valuable security whatsoever, belonging to any other person or corporation, which shall have come into his possession or under his care, he shall be guilty of felony and punished as in cases of larceny." By section 1020, which was in the original act of 1871-72, a part of section 1014, it is enacted that: "In indictments for embezzlement, except when the offense shall relate to a chattel, it shall be sufficient to allege the embezzlement to be of money, without specifying any particular coin or valuable security; and such allegation, so far as regards the description of the property, shall be sustained, if the offender shall be proved to have embezzled any amount, although the particular species of coin or valuable security of which such amount was composed shall not be proved."

By section 1183 it is sufficient if the indictment express the "charge against the defendant in a plain, intelligible and explicit manner" and "sufficient matter appears to enable the court to proceed to judgment."

The indictment sufficiently charges the fiduciary relation — that the defendant, by virtue thereof, received one note of the value of $5 in money, for and on account of his employer, and that he fraudulently embezzled and made way with the note and money received by him, and, as we have seen, under section 1020 of The Code, it is sufficient to allege "the embezzlement to be of money, without specifying any particular coin or valuable security."

There is unnecessary surplusage in the indictment, but the (766) charge of embezzlement is sufficiently made, and is not vitiated by the needlessly added charge that the defendant "did steal, take and carry away," etc. S. v. Lanier, 89 N.C. 517.

There is no error. Judgment affirmed.

Cited: S. v. Summers, 141 N.C. 843; S. v. Shine, 149 N.C. 481.