State v. Shumaker

111 S.E.2d 878 (1960) 251 N.C. 678

STATE
v.
Frances SHUMAKER.

No. 586.

Supreme Court of North Carolina.

January 14, 1960.

Malcolm B. Seawell, Atty. Gen., Glenn L. Hooper, Jr., Asst. Atty. Gen., for the State.

Robert S. Cahoon, George W. Gordon, Greensboro, for defendant, appellant.

HIGGINS, Justice.

The exceptive assignments argued in defendant's brief involve these questions: (1) Did the court commit error by admitting in evidence, over defendant's objection, the bank deposit slips retained by the depositor? (2) By admitting in evidence, over defendant's objection, the microfilm copies of endorsements on checks and deposit slips delivered to the bank? (3) Did the court, in its charge, give undue emphasis to the State's evidence and contentions?

The defendant's objections to the admissibility of the retained deposit slips is unsound. These slips were introduced as originals or duplicate originals. They were typewritten by the defendant or by someone under her direction. It was the defendant's duty to make and file them. She was the authorized custodian. They were in the files when she left. Clearly they were admissible. The duplicates of the deposit slips were filed with the bank at the time the deposits were made. The bank made photostats of these slips and of the checks. Dorothy Bowling testified: "I am employed in the main office of Wachovia Bank & Trust Company. * * * The various papers marked for the purpose of identification (here the numbers are given) are photostatic copies of original slips on deposit with the Wachovia Bank & Trust Company for Automatic Lathe Cutterhead Company for the period of time from September 23, 1957 to March 1, 1958. I personally made these photostats."

The defendant objected to the use of photostats on the ground the State did not "first account satisfactorily for nonproduction of the originals," citing among others the leading case of People v. Wells, 380 Ill. 347, 44 N.E.2d 32, 142 A.L.R. 1262. Under the North Carolina Uniform Photographic Copies of Business and Public Records Act (G.S. § 8-45.1 et seq.), any photographic, photostatic, or microfilm is as admissible in evidence as the original itself. The statute makes the photostat or microfilm reproduction primary evidence. Whether the original is in existence is immaterial. Of course, use of the reproduction does not render the original inadmissible.

Our statute making the reproduction competent evidence is modeled on the Act of Congress relating to the same subject. See 28 U.S.C.A. § 1732. More than 30 states have similar statutes. At the time People v. Wells, supra, was decided, Illinois did not have any statutory provision for the use of photostats. The opinion in the Wells case is based on the lack of statutory authority for such evidence.

One of the leading cases on the subject of reproductions is United States v. Manton, 2 Cir., 107 F.2d 834, 844, certiorari denied 309 U.S. 664, 60 S. Ct. 590, 84 L. Ed. 1012: "It is argued that the original checks themselves were the best evidence and that their absence should have been accounted for as a prerequisite to the admission of the recordaks. With this contention we cannot agree. These recordaks are made and kept among the records of many banks in due course of business and are within the words of 28 U.S.C.A. § 695 (now 1732). Their accuracy is not questioned. They represent, in the course of a year, perhaps millions of transactions. No one at all familiar with bank routine would hesitate to accept them as practically conclusive evidence. As proof of payment they constitute not secondary but primary evidence." See also, United States v. Kushner, 2 Cir., 135 F.2d 668; Beard v. United States, 4 Cir., 222 F.2d 84.

Enough appears in the evidence in this case to show a regular employee of the Wachovia Bank & Trust Company in the usual course of business made the photostats. She identified them. From this showing they were admissible in evidence. The deposit slips kept by the defendant, the microfilms of those at the bank, and the books and records kept by the defendant in her own handwriting showed discrepancies analyzed and summarized by the accountant. All were properly identified and received in evidence.

The assignments of error based on exceptions to the charge are without merit. The charge was concise, contained a short review of the evidence, accurately stated the law applicable thereto. With respect to the contentions, the court said: "* * * This case has been ably argued to you by counsel for the defendant and counsel for the State; they have advanced contentions in their able arguments and the court charges you that you will take into consideration all of the contentions advanced to you in arguments for the defendant and in arguments for the State; you will also take into consideration any other contentions which may reasonably arise in your minds from your consideration of all the evidence in this case." See State v. Kluckhohn, 243 N.C. 306, 90 S.E.2d 768.

At the close of the charge, the court made this inquiry of defense counsel: "Gentlemen, is there anything further for the defendant, with reference to the law, facts or the contentions?" The reply was, "No, sir." Complaint of failure to state the facts or contentions made after verdict comes too late. Bank of Varina v. Slaughter, 250 N.C. 355, 108 S.E.2d 594; In re Will of Crawford, 246 N.C. 322, 98 S.E.2d 29.

In the trial below, we find

No error.