The grand jury returned three bills of indictment charging defendant with the embezzlement of certain sums from the Central Carolina Oil Company, Inc., on three different occasions.
It was admitted that at the time alleged defendant was the secretary-treasurer of the oil company, a corporation, and that on 13 March, 1931, he drew a check on the company's fund in the sum of $2,000 in favor of Page Trust Company, and that on 6 May, 1931, he drew a check on the company's fund in the sum of $1,000, payable to Bank of Pinehurst, and on 1 April, 1931, he drew a check on the company's fund in the sum of $1,717, in favor of United Bank and Trust Company. It was also in evidence that the $1,000 and the $1,717 checks were used to pay a note on which defendant and another were liable.
The State offered evidence tending to show defendant admitted he had applied the funds represented by these checks to his own use.
At the close of State's evidence motion for nonsuit as to the bill or count with respect to the $2,000 check was sustained.
Defendant testified in substance that the $1,000 and the $1,717 checks were issued by him and applied as credits on his own debts for the reason that the oil company owed him $2,900, and he used the money to pay himself. He also admitted that he applied the $2,000 check on the note he and one McLauchlin had signed, payable to the Page Trust Company, and that he did it to pay McLauchlin's half of the note.
There was a general verdict of guilty, and from judgment thereon defendant appealed. The defendant excepted to the order consolidating for trial the three bills of indictment. In this ruling there was no error. C. S., 4622, authorizes the consolidation of two or more bills "when there are several charges against any person . . . for two or more acts or transactions connected together, or for two or more transactions of the same class of crimes or offenses." State v. Brown, 182 N.C. 761;State v. Rice, 202 N.C. 411. *Page 40
Defendant's exception to the denial of his motion for judgment of nonsuit cannot be sustained. There was evidence sufficient to be submitted to the jury. In the language of Davis, J., in State v. Fain, 106 N.C. 760: "If there was any evidence reasonably sufficient to go to the jury, its weight is a question with which this Court has nothing to do."
Embezzlement was not a common law offense. The acts constituting the offense are set forth in the statute, C. S., 4268. It has been defined by this Court as "the fraudulent conversion of property by one who has lawfully acquired possession of it for the use and benefit of the owner."State v. McDonald, 133 N.C. 681. One of the necessary elements of the offense is the fraudulent intent. The fraudulent intent within the meaning of the statute is the intent to "embezzle or otherwise willfully and corruptly use or misapply the property of another for purposes other than that for which they are held." State v. Lancaster, 202 N.C. 204. And since the criminality of the act depends upon the intent, it is incumbent on the State to show the intent to defraud beyond a reasonable doubt. Statev. Morgan, 136 N.C. 628. Such intent may be shown by direct evidence, or by evidence of facts and circumstances from which it may reasonably be inferred. State v. Lancaster, 202 N.C. 204; State v. Rawls, 202 N.C. 397; 20 C. J., 487.
We find no error in the refusal of the court below to permit the defendant to answer the question "whether or not the Central Carolina Oil Company, Inc., got value received for every dollar represented for that check." The evidence discloses that the defendant was permitted to and did testify fully as to all the facts of the transaction, and the question propounded is rather a conclusion than a statement of fact.
The other exceptions to the evidence are without merit.
Defendant made exceptions to the charge of the court for failure to charge as to the element of fraudulent intent, but upon an examination of the charge of the able and careful judge, we find that this was sufficiently called to the attention of the jury.
The other exceptions to the charge were to statements of contentions of the State and defendant, and these not having been called to the attention of the court at the time, are not now available to the defendant.
Upon a careful examination of the record, we find no reversible error in the trial.
No error. *Page 41