State v. Hitt

MORRIS, Judge.

Defendant’s first three assignments of error relate -to the denial of his motions for judgment as of nonsuit at. the close of the State’s evidence, at the close of the defendant’s evidence, and at the close of all the evidence.

“ ‘By introducing testimony at the trial, defendant waived his right to except on appeal to the denial of his motion for nonsuit at the close of the State’s evidence. His later exception to the denial of his motion for nonsuit made at the close of all the evidence, however, draws into question the sufficiency of all the evidence to go to the jury.’ State v. Mull, 24 N.C. App. 502, 212 S.E. 2d 515 (1975), citing State v. McWilliams, 277 N.C. 680, 687, 178 S.E. 2d 476 (1971).” State v. Davis, 24 N.C. App. 683, 211 S.E. 2d 849 (1975).

“ ... 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. (Citations omitted.)’” State v. Buzzelli, 11 N.C. App. 52, 54-55, 180 S.E. 2d 472 (1971), and cases cited therein.

Viewing the evidence before us in the light most favorable to the State and giving the State the benefit of every reasonable inference which may be fairly drawn therefrom, as we are required to do when passing on a motion for nonsuit, State v. Goines, 273 N.C. 509, 160 S.E. 2d 469 (1968), and cases cited therein, we find substantial evidence tending to show, or from which reasonable inferences may be drawn which would tend to show, every essential element of the crime of embezzlement. Defendant’s motion for nonsuit, therefore, was properly denied.

Defendant’s fourth and fifth assignments of error relate to the denial of his motions to have the verdict set aside and for judgment notwithstanding the verdict. It has long been held that “[w]hen the court rules on a motion to set aside the verdict in the exercise of its discretion, its ruling is not reviewable in the absence of abuse of such discretion” and that “ [d] enial of a motion to set aside a verdict which was supported by the evidence will not be disturbed.” 7 Strong, N. C. Index 2d, Trial, § 48, p. 364, and cases cited therein. As we have found sufficient evidence to support a denial of defendant’s motions and defendant has failed to show an abuse of discretion in the denial of the motions, these assignments of error are overruled.

. Defendant received a fair trial free from prejudicial error.

No error.

Judges Britt and Arnold concur.