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North Carolina v. Barbour

Filed: October 2, 1979.

STATE OF NORTH CAROLINA
v.
HELEN PARTIN BARBOUR



Appeal by defendant from Canaday, Judge. Judgment entered 23 August 1978 in Superior Court, Johnston County. Heard in the Court of Appeals 27 August 1979.

Martin (Harry C.), Judge. Chief Judge Morris and Judge Parker concur.

Martin

The primary argument of defendant on appeal is that there was insufficient evidence, either to take the case to the jury or to support the jury verdict of guilty. As defendant states her concerns: "The State never traced a penny and produced not one scintilla of evidence of criminal intent, fraud, misapplication or subterfuge by the defendant. Nothing incriminating was ever shown except sloppy bookkeeping and the fact defendant was present at Four Oaks School." The essence of defendant's argument is that the lack of evidence of control and possession of the funds by defendant, to the exclusion of all other persons, is fatal to the state's case. Defendant emphasizes the fact that "the money was simply left in a desk drawer, for all the world to steal, . . . ."

We hold the trial court did not err in denying defendant's motions for dismissal. The test to be applied in ruling on a motion to dismiss is whether there is "substantial evidence of all material elements of the offense to withstand the motion to dismiss." State v. Stephens, 244 N.C. 380, 383, 93 S.E.2d 431, 433 (1956). Such a

motion requires consideration of the evidence in the light most favorable to the state; the state is entitled to every reasonable inference which may be drawn from the evidence. State v. McKinney, 288 N.C. 113, 215 S.E.2d 578 (1975). The substantial evidence may be circumstantial or direct, or both. State v. Stephens, supra. The court is not required to find that the evidence excludes every reasonable hypothesis of innocence in denying a defendant's motion to dismiss. To do so would constitute the presiding judge the trier of facts. Substantial evidence of every material element of the crime charged is required before the court can submit the case to the jury. Proof of guilt beyond a reasonable doubt is required before the jury can convict. Id.

Defendant was charged with a violation of N.C.G.S. 14-92, which provides in part that "if any person having or holding any moneys or property in trust for any . . . educational institution, shall embezzle or otherwise willfully and corruptly use or misapply the same for any purpose other than that for which such moneys or property is held, such person shall be guilty of a felony, . . .." It is not necessary for the state to prove that defendant had exclusive possession of the funds to sustain the charge of embezzlement. United States v. Harper, 33 F. 471 (C.C.S.D. Ohio 1887); Young v. State, 44 Ohio App. 1, 184 N.E. 24 (1932); State v. Larson, 123 Wash. 21, 211 P. 885, mod. on other grounds, 216 P. 28 (1923); 29A C.J.S. Embezzlement ยง 9 (1965). More than one person can have possession of the same property at the same time. State v. Finney, 29 N.C. App. 378, 224 S.E.2d 263, rev'd on other grounds, 290 N.C. 755, 228 S.E.2d 433 (1976); State v. Wells, 27 N.C. App. 144, 218 S.E.2d 225 (1975).

The fraudulent intent required in the charge of embezzlement can be inferred from the facts proven. It is not necessary that there be direct evidence of such intent. State v. Helsabeck, 258 N.C. 107, 128 S.E.2d 205 (1962); State v. McLean, 209 N.C. 38, 182 S.E. 700 (1935).

The record supports the trial court's determination that the case against defendant should not have been dismissed. Defendant, secretary-treasurer of Four Oaks Elementary School, testified that she took the school money home with her each night. Other evidence showed that entries in the master receipt book and bank deposits varied greatly. In September 1976

receipts of $10,686.90 were compared to deposits of $7,669.40; in October 1976, although $7,685.01 was receipted, only $48.00 was deposited. In November and December 1976 and January 1977 defendant made deposits greater than receipts for those months. The CPA expert gave his opinion that these deposits were attempts to reduce the existing shortage. Defendant had financial problems in 1976; she and her husband borrowed money during the year. When we view this evidence in the light most favorable to the state, we find substantial evidence of all material elements of the charged offense.

Although it is a basic tenet of our criminal law system that proof of guilt beyond a reasonable doubt is required before the jury can convict, once the trial court finds that substantial evidence exists to take the case to the jury, "it is solely for the jury to determine whether the facts taken singly or in combination satisfy them beyond a reasonable doubt that the defendant is in fact guilty." State v. Smith, 40 N.C. App. 72, 79-80, 252 S.E.2d 535, 540 (1979). The jury returned a verdict of guilty in this case, and there is no reason for this Court to reverse that verdict.

In considering the motions to dismiss, and the challenge to the sufficiency of the evidence to support the verdict, we are mindful of the recent United States Supreme Court opinion in Jackson v. Virginia, U.S. , 61 L. Ed. 2d 560 (1979). The Supreme Court in Jackson established a constitutional standard applicable to state courts for review of motions testing the sufficiency of evidence to support a conviction of a criminal charge. This standard is: Could a rational trier of fact have found the defendant guilty beyond a reasonable doubt of the crime charged under the laws of North Carolina? The Court held that the United States Constitution protects an accused against conviction except upon evidence that is sufficient fairly to support a conclusion that every element of the crime has been established beyond a reasonable doubt. Perhaps this is merely a restatement of the North Carolina rule requiring substantial evidence of every material element of ...


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