State v. Smithey

190 S.E.2d 369 (1972) 15 N.C. App. 427

STATE of North Carolina
v.
Daniel Thomas SMITHEY.

No. 7214SC324.

Court of Appeals of North Carolina.

August 2, 1972.

Atty. Gen., Robert Morgan, by Associate Atty. Gen., Benjamin H. Baxter, Jr., for the State.

Kenneth B. Spaulding, Durham, for defendant appellant.

PARKER, Judge.

Defendant assigns error to denial of his motions for nonsuit. There was ample direct evidence that defendant, as agent of his employer and by the terms and in the course of his employment, received money belonging to his employer and that he failed to account for it. Defendant's contention is that the evidence was insufficient to show any fraudulent intent or that he willfully misapplied the property of his employer for any purpose. We do not agree.

"Fraudulent intent which constitutes a necessary element of the crime of embezzlement, within the meaning of the statute, G.S. § 14-90, is the intent of the agent to embezzle or otherwise willfully and corruptly use or misapply the property of the principal or employer for purposes other than those for which the property is held." State v. Gentry, 228 N.C. 643, 46 S.E.2d 863. "Such intent may be shown by direct evidence, or by evidence of facts and circumstances from which it may reasonably be inferred." State v. McLean, 209 N.C. 38, 182 S.E. 700. It is not necessary to show that the agent converted his principal's property to the agent's own use. State v. Foust, 114 N.C. 842, 19 S.E. 275. It is sufficient to show that the agent fraudulently or knowingly and willfully misapplied it, or that he secreted it with intent to embezzle or fraudulently or knowingly and willfully misapply it. G.S. § 14-90.

When the evidence in the present case 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 we are required to do when passing on motion for nonsuit, State v. Block, 245 N.C. 661, 97 S.E.2d 243, there was evidence from which a reasonable inference may be drawn that defendant either fraudulently or knowingly and willfully misapplied, his employer's funds, or that he secreted his employer's funds with the intent to embezzle or fraudulently or knowingly and willfully misapply them. He admitted to his supervisor that he had received the funds and that he understood he was supposed to deposit them each night in the bank for the account of his employer. He admitted he had failed so to deposit them and that this failure had continued for a considerable period of time. His excuse for his failure to deposit the funds as he had been instructed to do was so inadequate as to make permissible an inference that the excuse was untrue. Even had his excuse, that he did not have a key to the bank depository, been accepted as true, he offered no explanation as to why he had failed to utilize the floor safe in the service station but had simply locked the money in the back room. The evidence showed that the back room had not been broken into, and he offered no explanation as to how any third party might have taken the funds from this room, to which he held the only key. Viewing the direct evidence as to defendant's admitted actions in the light of all of these circumstances, the jury might reasonably draw the inference that he embezzled his employer's funds or that he secreted them with the intent so to do. Defendant's motions for nonsuit were properly overruled.

Defendant's remaining assignment of error, that the trial judge erred in failing to grant his motion to set aside the verdict, is also without merit. Such a motion is addressed to the sound discretion of the trial judge and his ruling thereon will not be reviewed on appeal absent a manifest abuse of discretion. State v. Massey, 273 N.C. 721, 161 S.E.2d 103. No abuse of discretion has been shown.

In defendant's trial and in the judgment appealed from we find

No error.

BRITT and HEDRICK, JJ., concur.