State v. Pate

253 S.E.2d 266 (1979)

40 N.C. App. 580

STATE of North Carolina v. John T. PATE.

No. 7815SC1084.

Court of Appeals of North Carolina.

April 3, 1979.

*269 Atty. Gen. Rufus L. Edmisten by Associate Atty. R. W. Newsom, III, Raleigh, for the State.

L. T. Dark, Jr., Siler City, for defendant-appellant.

HEDRICK, Judge.

Defendant first contends the trial court erred in denying his motion to dismiss made at the close of plaintiff's evidence and renewed at the close of all the evidence. Defendant argues that there was insufficient evidence of a fraudulent intent to embezzle and insufficient evidence that the defendant converted the funds of his employer.

In order to convict a defendant of embezzlement under G.S. § 14-90, the State must prove three distinct elements: (1) that the defendant, being more than sixteen years of age, acted as an agent or fiduciary for this principal, (2) that he received money or valuable property of his principal in the course of his employment and by virtue of his fiduciary relationship, and (3) that the fraudulently or knowingly and willfully misapplied or converted to his own use such money or valuable property of his principal which he had received in his fiduciary capacity. G.S. § 14-90; State v. Helsabeck, 258 N.C. 107, 128 S.E.2d 205 (1962); State v. Block, 245 N.C. 661, 97 S.E.2d 243 (1957); State v. Buzzelli, 11 N.C.App. 52, 180 S.E.2d 472 (1971). It is not necessary to show that the agent converted his principal's property to his own use so long as it is shown that the agent fraudulently or knowingly and willfully misapplied it. State v. Smithey, 15 N.C.App. 427, 190 S.E.2d 369 (1972). The fraudulent intent required under G.S. § 14-90 is the intent to willfully or corruptly use or misapply the property of another for purposes other than for which the agent or fiduciary received it in the course of his employment. State v. Gentry, 228 N.C. 643, 46 S.E.2d 863 (1948). It is not necessary, however, that the State offer direct proof of fraudulent intent, it being sufficient if facts and circumstances are shown from which it may be reasonably inferred. State v. McLean, 209 N.C. 38, 182 S.E. 700 (1935); State v. Smithey, supra.

In the present case we think the evidence, when viewed in the light most favorable to the State, was sufficient to allow a reasonable inference to be drawn that the defendant either fraudulently or knowingly and willfully misapplied his employer's funds. Mrs. Queen Wiley testified that the defendant was told that she could not repay a loan and that he nevertheless filled out the standard loan documents, approved a loan to her, and reassured her that she would not have to repay the loan, that it would be just like using her name. There was also evidence that the defendant knew of the company policy prohibiting loans to employees. This evidence would permit an *270 inference that the defendant, with full knowledge of the circumstances, used Mrs. Wiley as a conduit for diverting or misapplying the funds of his employer for his own benefit. We hold there was sufficient evidence to take the case to the jury and to support a verdict that the defendant violated G.S. § 14-90, and the trial judge properly denied defendant's motion to dismiss.

By assignments of error two and three, defendant contends the trial court committed prejudicial error by allowing the State, over objection, to cross-examine the defendant with regard to other unrelated transactions and as to his personal financial obligations. When a defendant in a criminal case elects to testify in his own behalf, specific acts of misconduct may be brought out on cross-examination to impeach his credibility. State v. McKenna, 289 N.C. 668, 224 S.E.2d 537, death sent. vacated, 429 U.S. 912, 97 S. Ct. 301, 50 L. Ed. 2d 278 (1976); State v. Mack, 282 N.C. 334, 193 S.E.2d 71 (1972); 1 Stansbury's N.C. Evidence § 111 (Brandis rev. 1973). The cross-examination of defendant with regard to other loan transactions that were similar to the one involved was relevant to impeach the defendant's claim that the transaction at issue was proper. The cross-examination was also relevant in establishing that the defendant acted with a particular fraudulent intent. See 1 Stansbury's N.C. Evidence § 92, at 294-95 (Brandis rev. 1973); State v. Hight, 150 N.C. 817, 63 S.E. 1043 (1909). With regard to the cross-examination of the defendant as to his personal financial obligations, the defendant argues only that these matters were irrelevant. It is a well-known rule that evidence is relevant if it has any logical tendency to prove a fact at issue in a case. In a criminal case every circumstance calculated to throw light on the supposed crime is admissible. It is not necessary that the evidence bear directly on the question; it is competent and relevant if it is one of the circumstances surrounding the parties, and necessary to be known to properly understand their conduct or motives, or if it reasonably allows the jury to draw an inference as to a disputed fact. State v. Arnold, 284 N.C. 41, 199 S.E.2d 423 (1973). We think that evidence of the defendant's financial condition was relevant to show a motive for embezzlement. This assignment of error has no merit.

Defendant finally contends that the trial judge committed prejudicial error in his charge to the jury by failing to adequately define and charge as to the element of fraudulent intent. Defendant argues that nowhere in its instructions did the court use the word "intent." The intent to fraudulently or willfully misapply the principal's property for purposes other than that for which it was received is an essential element of embezzlement that the State must prove beyond a reasonable doubt. State v. Gentry, supra; State v. McLean, supra; State v. Smithey, supra. With regard to this element, the court charged that the jury would have to find "that the defendant fraudulently and dishonestly used the moneys of Provident Finance Company of North Carolina, Inc., for some purpose other than that for which he had received it." We think that this charge does require the jury to find that the defendant acted with a fraudulent intent. This assignment of error has no merit.

We hold that defendant had a fair trial free from prejudicial error.

No error.

PARKER and CARLTON, JJ., concur.