The ease is controlled by S. v. Rawls, 202 N. C., 397, 162 S. E., 899, where a similar instruction, which failed to include the element of fraudulent intent, was held for error.
New trial.
State v. Pardue, 203 N.C. 696 (1932)
Dec. 14, 1932
·
Supreme Court of North Carolina
203 N.C. 696
STATE v. R. T. PARDUE.
(Filed 14 December, 1932.)
Embezzlement B d — Directed verdict against defendant held error, question of fraudulent intent being for the jury.
Under the evidence in this prosecution for embezzlement a charge directing a verdict against the defendant was error, the question of fraudulent intent being for the jury.
Appeal by defendant from Moore, J., at March Term, 1932, of WlLKES.
Criminal prosecution tried upon an indictment charging the defendant with embezzlement.
The State's evidence tends to show that W. C. Pierce had a contract with the Deleo Light Company to sell their products in certain territory on a 20 per cent commission basis. A portion of the territory was “sublet,” as it were, to the defendant on equal division of commissions. Collections were made on a number of sales and the entire proceeds thereof used by the defendant.
The testimony of the defendant is to the effect that the lighting plants and fixtures were sold to him by Pierce to be paid for as and when collections were made from customers. Certain collections were made and used by the defendant, but he says: “It was not Mr. Pierce’s money. It was my money. In a way it was fay money and in a way it was his. I bought the stuff and gave Mr. Pierce a check. It was understood that when I collected this money I was to pay him, and I tendered him what I had collected.”
At the close of the evidence, the court instructed the jury as follows: “Gentlemen of the jury, I will have to charge you that if you believe *697the evidence in tbis case, beyond a reasonable doubt, even the defendant’s own testimony beyond a reasonable doubt, you will return a verdict of guilty.” Exception.
From an adverse verdict and judgment thereon the defendant appeals, assigning errors.
Attorney-General Brummitt and Assistant Attorney-General Seawell for the State.
J. H. Whicker for defendant.