State v. . Ward

Barnhill, J. The record and case on appeal, exclusive of exhibits, consumes 135 pages and discloses 325 exceptions. Many of these exceptions, however, are not brought forward in the brief. Others are abandoned under the rules of practice in this Court. Rule 28. We will discuss only those which are sufficiently presented for our consideration. The defendant moved to quash each bill of indictment. The motions filed, however, assign no grounds therefor. No defect is alleged, no deficiency is designated. In his brief here, he attacks # 4340 for that there is no such crime as aiding and abetting embezzlement. This assignment cannot be sustained. S. v. Pearson, 119 N. C., 871; S. v. Hoffman, 199 N. C., 328, 154 S. E., 314; S. v. Beal, 199 N. C., 278, 154 S. E., 604; S. v. Everhardt, 203 N. C., 610, 166 S. E., 738; S. v. Epps, 213 N. C., 709, 197 S. E., 580; S. v. Kelly, 216 N. C., 627, 6 S. E. (2d), 533. Where two or more persons aid and abet each other in the commission of a crime, all being present, all are principals and equally guilty. S. v. Anderson, 208 N. C., 771, 182 S. E., 643; S. v. Beal, supra. When the defendant persuaded Sneed, his subordinate, to advance State funds to him for his own use as a “loan,” or upon checks to be held and not presented to the bank for payment, he misapplied such funds. Certainly, at least, he aided and abetted Sneed in misapplying the same. The question of fraudulent intent was for the jury. That he may have intended to eventually return the money thus wrongfully used does not, necessarily, exculpate him. S. v. Summers, 141 N. C., 841; S. v. Shipman, 202 N. C., 518, 163 S. E., 657; S. v. Pace, 210 N. C., 255, 186 S. E., 266. He now attacks # 4341 and ‡ 4342 for that C. S., 4269, under which these bills are drawn, does not make it unlawful to misapply or embezzle money, notes, checks or drafts, and that the language used in the statute, to wit: “any bonds issued by the State, or any security or other property and effects of the same,” when strictly construed, does not include or embrace money; that this particular statute does not make it unlawful for a State officer to embezzle or misapply money belonging to the State. He insists that under the rule of strict construction an officer is indict *320 able under this section of the Code only for the embezzlement of the classes of property expressly named and designated therein. Although this argument was forcefully presented we are unable to concur. While the word “property,” as used in the embezzlement statute, relates only to personalty it is sufficiently all-inclusive to embrace money. “The word ‘property’ in the embezzlement statute, includes money, goods, chattels, evidences of debt and things in action. S. v. Orwig, 24 Iowa, 102, 105.” 34 Words and Phrases, 396; Fidelity & Deposit Co. v. Arenz, 290 U. S., 66; Superior Bath House Co. v. McCarroll, 312 U. S., 176. For a collection of cases to like effect see 34 Words and Phrases, pp. 480-484; 50 C. J., 737. The defendant filed a separate motion on each bill or count, requesting and demanding a bill of particulars. The State separately, in answer to each motion, filed an answer in which it set up certain detailed information respecting the charge contained in the related bill. No further action was taken. The defendant, apparently satisfied with the information thus furnished, did not press further for an allowance of his motion. No bill of particulars was filed. The rule laid down in S. v. Van Pelt, 136 N. C., 633, has no application here. • Without attempting to detail the evidence further than as herein stated, it is sufficient to say that the court committed no error in overruling the defendant’s motions to dismiss as of nonsuit. The evidence, if believed and accepted by the jury, is amply sufficient to warrant the conclusion that the defendant is guilty as charged in each of the bills of indictment. When a witness is found by the court to be an expert he may testify as such in respect to audits made by him of pertinent books and records. This is accepted law with us. S. v. Lancaster, 202 N. C., 204, 162 S. E., 367, and cases cited; S. v. Howard, ante, 291. The court held that the witness Burgess is an expert accountant and permitted him to testify as such. Exceptions thereto cannot be sustained. The witness has been in the accounting and auditing business since 1931. He has been an auditor for the State for 8 years and Chief of the Auditing Division of the State Department of Revenue since 1 June, 1942. This is sufficient to support the ruling of the court which is not reviewable on appeal. S. v. Gray, 180 N. C., 697, 104 S. E., 647. That the State alleged, in bill # 4341, that the defendant embezzled $158.53 and offered evidence tending to show only an embezzlement of $75.00 is not a fatal variance. S. v. Dula, 206 N. C., 745, 175 S. E., 80; S. v. Gulledge, 173 N. C., 746, 91 S. E., 362; S. v. Lea, 203 N. C., 13, 164 S. E., 737. The only exception to the charge which is of sufficient merit to require discussion is exception # 312. This exception relates to that portion of the charge in which the court outlined and defined to the jury statutory provisions in relation to punishment. *321 Tbe defendant undertook to argue to tbe jury tbe seriousness of tbe indictments charging tbat tbe defendant, a State officer, embezzled State property, by reason of tbe severity of tbe minimum punishment prescribed by statute. In so doing be inadvertently overlooked tbe modifying provisions of tbe Probation Statute, sec. 1, cb. 132, Public Laws 1937. Considering this argument realistically we know tbat it was highly prejudicial to tbe State. Tbe court undertook to remove tbe erroneous impression thus created and to place tbe cause back on an even keel so tbat it might be decided by tbe jury with complete fairness to all parties. In so doing be gave no intimation of opinion and made no implied promise of leniency. Instead, be carefully and fully cautioned tbe jury tbat .they were to decide tbe issue upon tbe evidence without regard to tbe punishment tbat might or might not be imposed in tbe event of a conviction. Tbe charge was provoked by an erroneous argument as to tbe law. Tbe jury was adequately cautioned in respect thereto. We are not disposed to bold, under these circumstances, tbat it was an instruction of which defendant may now take advantage. S. v. Howard, ante, 293. This instruction and tbe one discussed in tbe Howard case, supra, are identical. In tbat opinion Devin, J., cites and analyzes pertinent decisions and concludes tbat tbe charge was not prejudicial. Tbat decision is controlling here. After a careful examination of all tbe exceptions entered by tbe defendant in tbe court below we are unable to find any error of sufficient merit to justify a new trial. No error.