Citation Numbers: 100 S.E. 116, 178 N.C. 670
Judges: WALKER, J.,
Filed Date: 9/10/1919
Status: Precedential
Modified Date: 4/15/2017
The charge in the indictment is that the defendant had unlawfully, willfully, and feloniously, as sheriff of Beaufort County, failed to pay over and deliver to the proper persons entitled to receive the same, when lawfully required to do so, certain money and funds which he had received by virtue or color of his office in trust, contrary to the provisions of the statute. The indictment was drawn under Rev. 3408, and this is stated in the brief of the State, which refers to the original statute, Code of 1883, sec. 1016, as having been amended, in consequence of the decision inS. v. Connelly,
There was evidence tending to show that the defendant had collected certain taxes, especially unlisted taxes, such as licenses and privilege taxes, and had failed to pay over the same to the officer designated by the law to receive them. The court instructed the jury that if they believed the defendant's testimony, which he gave in his own behalf, and found the facts to be as it tends to show them to be, it would be their duty to return a verdict of guilty on the first count, ignoring the count for embezzlement. *Page 721
after stating the case: If we assume that the testimony of the defendant was of such a nature as to warrant the instruction to the jury, we are of the opinion that the court erred in further telling them, in answer to the question of one of the jurors, that they should convict the defendant if he simply received certain money and failed to pay it to the proper party, though he may have paid it to the county treasurer. The first part of section 3408 of the Revisal of 1905 relates to the embezzlement or willful and corrupt use or misapplication of funds held by any officer, agent, or employee of any city, county or incorporated town, or of any penal, charitable, religious, or educational institution, and denounces it as a felony, and that any such person convicted of the same shall be fined and imprisoned in the penitentiary for a time to be fixed by the court in the exercise of its discretion. The next provision of the section applies to the embezzlement, wrongful conversion, (672) or corrupt use or misapplication to any purpose, other than that for which it is held, of any money, funds, securities, or other property, which such officer shall have received, by virtue, or color of his office, in trust for any person or corporation, and such act is declared to be a felony. The statute, as amended in the year 1891, is composed of this provision, and the last one in the section (amendment of 1891), which is as follows: "The provisions of this section shall apply to all persons who shall go out of office and fail or neglect to account to or deliver over to their successor in office or other persons lawfully entitled to receive the same all such moneys, funds, and securities or property aforesaid. The punishment shall be imprisonment in the State's Prison or county jail, or fine, in the discretion of the court." The first part of the amendment refers to the embezzlement, conversion, etc., of money, funds, and other things held in trust for any person or corporation, and the second part to the failure or neglect of the officer to account for and deliver over to their successors in office, or to other persons who are lawfully entitled to receive the same, all such moneys, funds, etc., which means, by the use of the word "such," all the money or funds, etc., held in trust by such officers for any person or corporation. The Court held, in S. v. Connelly,
There is another consideration. As this verdict stands now, the *Page 723 defendant has been convicted of a felony, and if the verdict is permitted to stand, he will be deprived of his right to vote and to hold office, under Art. VI, secs. 2 and 8 of the Constitution, and the punishment may extend to confinement in the State Prison at hard labor. This but shows the great importance of a close scrutiny of the record to see if the defendant has been properly convicted of the felony charged in the bill, or whether, if guilty at all, his offense is only a misdemeanor. It is all too serious a charge for the record to be left in any state of uncertainty. The court thought that the defendant had been convicted of a felony, as it sentenced him to be imprisoned three years in the penitentiary.
But, leaving this matter here, we are of the opinion that, in any view, whether it be a felony or a misdemeanor, the learned judge went too far in his charge to the jury. We are fully aware that he did not intend to do so, but intended to confine his instructions to the jury within the proper limits. The language of the court addressed to the jury was, in our opinion, subversive of that freedom of thought and of action so very essential to a calm, fair, and impartial consideration of the case. The desire to see the law vindicated, and any violation of it receive the proper punishment, is a most commendable one, but we should not indulge it at the risk of taking from the defendant any of the constitutional or statutory safeguards. The slightest intimation of the court, by word or deed, as to what the verdict should be, may be fatal to any defendant, though he may be ever so innocent, and our statute provides against it. The jury should, at all times, be left free and untrammeled to (674) find the facts. The judge declares the law arising upon the evidence, and the jury should be governed by his instructions, but they are the sole triers of the facts, subject to the right of the jury to say what evidence is competent and relevant, and what it tends to prove. What it does prove is the peculiar question for the jury to decide.
The present Chief Justice clearly stated the rule in S. v. Riley,
The judge, in this case, did not enter the verdict and ask if any of the jurors disagreed to it, as was done in S. v. Shule, supra, but the jurors were, in effect, polled and asked if each of them believed the testimony of the defendant, and if so, to hold up his right hand. This was done after a statement by the court of what the defendant, as a witness in his own behalf, has said, and the further remark that he had proved himself to be a man of good character. The court then instructed the jury, that having all of them said that (675) they believed the statement of defendant, he had told them before, and would tell them now, that it is their duty, as jurors, to take the law from the court, and if they believe defendant's testimony, and found the facts which it tends to show, to convict him. There are other expressions of like kind, though somewhat more intensive in form and emphasis. It may be that this defendant is guilty under the facts of violating the law as defined in the statute, but if so, the jury must be permitted to find the facts from the evidence freely and voluntarily, and this is true, no matter how plain a case against the defendant it may appear to be, as the plea of not guilty challenges the truth of the testimony, and "denies the credibility of the witnesses." The defendant was not given any benefit of the presumption of innocence, and no reference was made to it or to the doctrine of reasonable doubt. The burden of showing guilt is upon the State, as the contrary is presumed, and this requires *Page 725
that it should prove its case to the full satisfaction of the jury. It was said in S. v. Simmons,
We do not think that the evidence was such as to admit of the instructions given by the court. The manner of instructing the jury violated the spirit, if not the letter, of our statute, Rev. 535 (Act of 1796, ch. 452). Withers v. Lane,
A learned presiding judge, in the course of a trial, may, and sometimes does, unwittingly, or inadvertently, so express himself as to influence the minds of the jurors, and this, of course, is done unconsciously and without due regard, at the time, to such injurious effect. We do not doubt that such was the case in this instance. The error, though, must be corrected, however unconsciously committed, for the harm is just the same, in kind and degree. The accused may be guilty of the crime alleged against him, but, in passing upon *Page 726 exceptions like those now taken, we must not forget, and should assume, that he may be innocent. We must conclude that the charge, especially when construed as a whole, was erroneous in the respect above indicated.
For the reasons stated, the defendant is entitled to a new trial. The solicitor will consider, in view of what we have said, whether it is prudent to make the indictment more conformable to the proof by adding another count, or by a fresh bill, but this is left entirely to his judgment.
We do not say that the defendant may not be convicted under the bill now before us, as it is not necessary to do so by anticipating further developments in the progress of the case. Our decision is strictly confined to what is presently before us, and does not go beyond it.
New trial.
Cited: Harris v. Turner,
State v. . Sheets , 89 N.C. 543 ( 1883 )
State v. . Young , 77 N.C. 498 ( 1877 )
State v. . Simmons , 143 N.C. 613 ( 1907 )
State v. Adams. , 133 N.C. 667 ( 1903 )
State v. . Godwin , 145 N.C. 461 ( 1907 )
McCanless v. . Flinchum , 98 N.C. 358 ( 1887 )
State v. . Connelly , 104 N.C. 794 ( 1889 )
Withers v. . Lane , 144 N.C. 184 ( 1907 )
State v. . Riley , 113 N.C. 648 ( 1893 )
Benton v. . Toler , 109 N.C. 238 ( 1891 )
State v. Overman , 269 N.C. 453 ( 1967 )
State v. . Brodie , 190 N.C. 554 ( 1925 )
Harris v. . Turner , 179 N.C. 322 ( 1920 )
State v. . Fogleman , 204 N.C. 401 ( 1933 )
State v. Jones , 292 N.C. 513 ( 1977 )
In Re the Condemnation of Property of Henderson , 4 N.C. App. 56 ( 1969 )
State v. MacK , 656 S.E.2d 1 ( 2008 )
Solomon v. State , 489 S.W.2d 547 ( 1972 )