State v. Buzzelli , 11 N.C. App. 52 ( 1971 )

180 S.E.2d 472 (1971) 11 N.C. App. 52

STATE of North Carolina
v.
Darlene BUZZELLI.

No. 7126SC172.

Court of Appeals of North Carolina.

April 28, 1971.

Atty. Gen. Robert Morgan, by Staff Atty. Howard P. Satisky, Raleigh, for the State.

Mraz, Aycock & Casstevens, by Nelson M. Casstevens, Jr., Charlotte, for defendant appellant.

PARKER, Judge.

Appellant first assigns as error the denial of her motions for nonsuit. To convict a defendant of embezzlement in violation of G.S. § 14-90, our Supreme Court has declared that "four distinct propositions of fact must be established: * * * (1) that the defendant was the agent of the prosecutor, and (2) by the terms of his employment had received property of his principal; (3) that he received it in the course of his employment, and (4) knowing it was not his own, converted it to his own use." State v. Block, 245 N.C. 661, 97 S.E.2d 243; State v. Blackley, 138 N.C. 620, 50 S.E. 310.

When the evidence in the case before us is viewed in the light most favorable to the State and the State is given the benefit of every reasonable inference which may be fairly drawn therefrom, as the courts of this State are required to do when passing on a motion for nonsuit, State v. Block, supra, there was in this case evidence tending to show, or from which reasonable inferences may be drawn as tending to show, every essential element of the crime of embezzlement within the purview of the statute, G.S. § 14-90. The State's evidence would support a jury finding of the following facts: (1) Defendant was the employee of Waters Insurance & Realty Company, Inc. who was charged with the duty of receiving money of her employer each day, deciding how much should be deposited each day in her employer's bank account, and recording the amount thereof in a Cash Journal, on a bank deposit slip, and in a Daily Deposit Book. (2) Defendant's handwriting in making these entries under date 14 April 1969 show circumstances from which a jury could legitimately find that defendant did receive on that date her employer's money in the amount of $7,820.79, which is the figure she entered in the Cash Journal in the column headed "Bank." (3) Defendant received this money in the course of her employment in her capacity as bookkeeper for her employer. (4) Defendant, knowing the money was not her own, caused only $7,220.79 thereof to be deposited in her employer's bank account and deposited the remaining $600.00 in her own account, from which the jury could legitimately find that defendant fraudulently embezzled and converted to her own use the sum of $600.00 of her employer's funds.

Appellant's contention that her motion for nonsuit should have been granted, else any bookkeeper might be convicted of embezzlement upon a mere showing of the making of an incorrect entry in the employer's books, is without merit. It is, of course, true that "[t]he mere making of false entries in books of account is not sufficient evidence of an act of conversion constituent to the crime of embezzlement, regardless of the defendant's fraudulent intent at the time of making such a false entry. But depositing funds of another in one's own account, together with the making of incorrect entries in books of account, and failing to turn the other's funds over to him at a time when obligated to do so, is sufficient evidence of conversion." 26 Am.Jur.2d, Embezzlement, § 56, p. 609. There was no error in denying defendant's motion for nonsuit.

Defendant asserts error by the trial court in denying her motion to suppress evidence that on 1 November 1969 she made a cash purchase of a Gulbranson organ for the sum of $1,498.35. "Evidence that during a period which a defendant had allegedly been guilty of embezzling money from his employer the defendant spent money considerably in excess of his known income or made large bank deposits has been held admissible." Annotation, 91 A.L.R. 2d 1056, § 7. Had the embezzlement of $600.00 on 14 April 1969 been the only charge against defendant, the evidence that she made a large cash purchase on 1 November 1969 might possibly be considered as too remote and conjectural to have probative value. In this case, however, defendant was charged with twelve separate embezzlements, the last two of which were alleged to have occurred on 7 and 29 October 1969 for $3,200.00 and $200.00 respectively. As to those two charges, the evidence of her large cash purchase made on 1 November 1969 was clearly not too remote and was admissible at least as bearing on those charges. Since the jury found her not guilty on those two charges, we cannot see how she was prejudiced by the admission of this evidence in the case charging embezzlement on 14 April 1969, as to which she was found guilty.

Defendant's final assignment of error is that the trial judge committed error in charging the jury that certain exhibits referred to in the testimony of the witnesses for the State had been introduced in evidence when the record does not reveal that these exhibits were in fact so introduced. The exhibits in question, which were bank deposits slips and pages from the employer's books and records, would have been admissible in evidence had they been introduced. The reason they were not introduced, whether from inadvertence or for other cause, does not appear in the record. While it was error for the court to charge the jury that these exhibits had been introduced in evidence when in fact they had not, it was nonprejudicial error in this case. The State's Exhibit No. 16, which was the deposit slip showing the deposit of only $7,220.79 in the employer's bank account on 14 April 1969, was introduced and admitted in evidence, and the State's witnesses testified without objection at length and in detail as to the contents of all of the other exhibits. During the course of the trial the State and the defendant even stipulated and agreed that State's Exhibit No. 29, which was the page from the Cash Journal showing entries for 14 April 1969, indicated a figure that is $600.00 more than is shown on State's Exhibit No. 16 (see page 30 of the record on appeal). Since evidence as to the contents of all of the State's exhibits was before the jury, either by testimony of State's witnesses which had been admitted without objection or by stipulation of the parties, defendant could have suffered no prejudice when the trial judge inadvertently referred to the exhibits as having been offered in evidence.

In the trial and judgment appealed from, we find

No error.

MALLARD, C. J., and VAUGHN, J., concur.