{ "id": 8547885, "name": "STATE OF NORTH CAROLINA v. GERALD BONNER HILL", "name_abbreviation": "State v. Hill", "decision_date": "1980-02-19", "docket_number": "No. 7916SC590", "first_page": "136", "last_page": "152", "citations": [ { "type": "official", "cite": "45 N.C. App. 136" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "248 S.E. 2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "38 N.C. App. 322", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553633 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/38/0322-01" ] }, { "cite": "124 S.E. 2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "256 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573643 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/256/0494-01" ] }, { "cite": "432 U.S. 161", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177649 ], "weight": 3, "year": 1977, "opinion_index": 0, "case_paths": [ "/us/432/0161-01" ] }, { "cite": "192 S.E. 2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 157", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563853 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0157-01" ] }, { "cite": "106 S.E. 833", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1921, "opinion_index": 0 }, { "cite": "181 N.C. 548", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657543 ], "year": 1921, "opinion_index": 0, "case_paths": [ "/nc/181/0548-01" ] }, { "cite": "297 N.C. 615", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573166, 8573233, 8573211, 8573150, 8573183 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0615-02", "/nc/297/0615-05", "/nc/297/0615-04", "/nc/297/0615-01", "/nc/297/0615-03" ] }, { "cite": "251 S.E. 2d 667", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "668" } ], "opinion_index": 0 }, { "cite": "39 N.C. App. 655", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554132 ], "year": 1979, "pin_cites": [ { "page": "657" } ], "opinion_index": 0, "case_paths": [ "/nc-app/39/0655-01" ] }, { "cite": "204 S.E. 2d 667", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 305", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564048 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0305-01" ] }, { "cite": "231 S.E. 2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "291 N.C. 586", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558813 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/291/0586-01" ] }, { "cite": "239 S.E. 2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "35 N.C. App. 119", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547575 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/35/0119-01" ] }, { "cite": "195 S.W. 802", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1917, "opinion_index": 0 }, { "cite": "176 Ky. 343", "category": "reporters:state", "reporter": "Ky.", "case_ids": [ 2358751 ], "year": 1917, "opinion_index": 0, "case_paths": [ "/ky/176/0343-01" ] }, { "cite": "66 S.E. 212", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1909, "opinion_index": 0 }, { "cite": "151 N.C. 323", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654730 ], "year": 1909, "opinion_index": 0, "case_paths": [ "/nc/151/0323-01" ] }, { "cite": "200 S.E. 2d 182", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "185" } ], "opinion_index": 0 }, { "cite": "284 N.C. 219", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560808 ], "year": 1973, "pin_cites": [ { "page": "223" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0219-01" ] }, { "cite": "99 S.Ct. 107", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1978, "opinion_index": 0 }, { "cite": "58 L.Ed. 2d 124", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1978, "opinion_index": 0 }, { "cite": "439 U.S. 830", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11354337, 11354755, 11354505, 11355114, 11354701, 11354576, 11355217, 11354834, 11355026, 11354643, 11354933, 11354429 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/us/439/0830-01", "/us/439/0830-07", "/us/439/0830-03", "/us/439/0830-11", "/us/439/0830-06", "/us/439/0830-04", "/us/439/0830-12", "/us/439/0830-08", "/us/439/0830-10", "/us/439/0830-05", "/us/439/0830-09", "/us/439/0830-02" ] }, { "cite": "241 S.E. 2d 684", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573223 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0382-01" ] }, { "cite": "173 S.E. 2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "7 N.C. App. 721", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553008 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/7/0721-01" ] }, { "cite": "213 S.E. 2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561054 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0076-01" ] }, { "cite": "18 S.E. 945", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1894, "opinion_index": 0 }, { "cite": "114 N.C. 783", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651476 ], "year": 1894, "opinion_index": 0, "case_paths": [ "/nc/114/0783-01" ] }, { "cite": "243 S.E. 2d 771", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "780" } ], "opinion_index": 0 }, { "cite": "295 N.C. 21", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560930 ], "year": 1978, "pin_cites": [ { "page": "36-37" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0021-01" ] }, { "cite": "235 S.E. 2d 828", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 105", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561617 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0105-01" ] }, { "cite": "252 S.E. 2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 607", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569806 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0607-01" ] }, { "cite": "256 S.E. 2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571738, 8571679, 8571703 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0457-03", "/nc/297/0457-01", "/nc/297/0457-02" ] }, { "cite": "253 S.E. 2d 94", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "40 N.C. App. 326", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550305 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/40/0326-01" ] }, { "cite": "247 S.E. 2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "785" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 353", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553813 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/38/0353-01" ] }, { "cite": "110 S.W. 268", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "139 Ky. 747", "category": "reporters:state", "reporter": "Ky.", "case_ids": [ 4396133 ], "opinion_index": 0, "case_paths": [ "/ky/139/0747-01" ] }, { "cite": "65 S.E. 2d 356", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "233 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616062 ], "opinion_index": 0, "case_paths": [ "/nc/233/0699-01" ] }, { "cite": "230 S.E. 2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "380" } ], "opinion_index": 0 }, { "cite": "291 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557966 ], "year": 1976, "pin_cites": [ { "page": "311" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0303-01" ] } ], "analysis": { "cardinality": 1227, "char_count": 32443, "ocr_confidence": 0.79, "pagerank": { "raw": 3.1693070054338727e-07, "percentile": 0.8638100136339996 }, "sha256": "be1261d045aa07fdde150f80b507e0dbc767f3f35b2abdd7264b768d995cd541", "simhash": "1:cf301d3f662cac5d", "word_count": 5427 }, "last_updated": "2023-07-14T22:44:38.339487+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Clark and Arnold concur." ], "parties": [ "STATE OF NORTH CAROLINA v. GERALD BONNER HILL" ], "opinions": [ { "text": "ERWIN, Judge.\nDefendant brings forth numerous assignments of error. For clarity\u2019s sake, we will address them in order of convenience.\nMotion for Recusation\nDefendant contends that the trial court erred in not requesting another judge to consider his motion for recusation. We agree.\nThe record reveals that immediately after defendant had finished testifying at the criminal trial of another officer of the Lumberton Housing Authority {State v. Lamb, COA7916SC571, appealed to this Court and opinion filed December 1979), Judge Gavin, based on defendant\u2019s testimony, stated that defendant had implicated himself in that trial. Upon being informed that defendant had six cases pending against him in Superior Court and that his bond was set at $2,500 in all six cases, Judge Gavin increased defendant\u2019s bond, because he thought it was unusually low.\nG.S. 15A-1223(b) provides:\n\u201c(b) A judge, on motion of the State or the defendant, must disqualify himself from presiding over a criminal trial or other criminal proceeding if he is:\n(1) Prejudiced against the moving party or in favor of the adverse party; or\n(2) A witness for or against one of the parties in the case; or\n(3) Closely related to the defendant by blood or marriage; or\n(4) For any other reason unable to perform the duties required of him in an impartial manner.\u201d\nWhile G.S. 15A-1223(b) provides the instances in which a judge must disqualify himself, it does not address the question of whether he is the proper party to hear the motion for recusation in all instances.\nCanon 3C(l)(a) of the North Carolina Code of Judicial Conduct provides:\n\u201cC. Disqualification.\n(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:\n(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed eviden-tiary facts concerning the proceedings . . .\u201d\nIn Bank v. Gillespie, 291 N.C. 303, 311, 230 S.E. 2d 375, 380 (1976), our Supreme Court, speaking on the subject of recusation, stated:\n\u201cWe are, however, constrained to observe that when the trial judge found sufficient force in the allegations contained in defendant\u2019s motion to proceed to find facts, he should have either disqualified himself or referred the matter to another judge before whom he could have filed affidavits in reply or sought permission to give oral testimony. Obviously it was not proper for this trial judge to find facts so as to rule on his own qualification to preside when the record contained no evidence to support his findings. Ponder v. Davis, 233 N.C. 699, 65 S.E. 2d 356.\nIn this connection, we think the language found in Kentucky Journal Publishing Co. v. Gaines, 139 Ky. 747, 110 S.W. 268, quoted in Ponder v. Davis, supra, warrants repeating:\n... \u2018It is but the utterance of a legal platitude to say that it is of the utmost importance that every man should have a fair and impartial trial of his case, and that to secure this great boon two things are absolutely essential; an impartial jury and an unbiased judge. But we go further, and say that it is also important that every man should know that he has had a fair and impartial trial; or, at least, that he should have no just ground for the suspicion that he has not had such a trial.\u2019 \u201d\nRecently, in McClendon v. Clinard, 38 N.C. App. 353, 247 S.E. 2d 783 (1978), we interpreted Gillespie as requiring a trial judge to refer a motion to recuse to another judge for consideration and disposition when \u201ca reasonable man knowing all the circumstances would have doubts about the judge\u2019s ability to rule on the motion to recuse in an impartial manner.\u201d Id. at 356, 247 S.E. 2d at 785. Applying this test to the facts of the instant case, we hold that the trial court erred in failing to refer the motion for recusation to another judge for consideration and disposition. Here, Judge Gavin increased defendant\u2019s bond on his own motion under the conditions indicated above. The record clearly shows that Judge Gavin was concerned about defendant\u2019s implications in the Lamb case, which to a reasonable person would mean that the judge had formed an opinion against defendant. He complained about defendant\u2019s bond and increased it without any reference as to whether or not defendant would be present at his trial. Our decision in State v. Vega, 40 N.C. App. 326, 253 S.E. 2d 94, appeal dismissed, 297 N.C. 457, 256 S.E. 2d 809 (1979), is in accord with our decision today.\nMotion of Discovery\nPrior to trial, defendant made a motion for discovery of oral statements made by defendant which the State intended to offer in evidence, for discovery of a list of all witnesses that the State intended to call to give testimony at trial, and for discovery of any books, papers, documents, or records in the possession of the State and intended to be used by the State in any manner at trial. After being ordered to disclose the above, the State stipulated that there were no oral statements made by defendant which it intended to offer in evidence and identified the documents intended to be used by the State in any manner in the trial. During the trial, the State, through its witnesses\u2019 testimony, introduced statements made by defendant and used several undisclosed documents on cross-examination of defendant and his witnesses. Defendant assigns error.\nThe State did not err in failing to disclose the oral statements made by defendant to a third-party witness. G.S. 15A-904(a); State v. Crews, 296 N.C. 607, 252 S.E. 2d 745 (1979). In State v. Crews, supra, our Supreme Court stated that the intent of our Legislature was to restrict defendant\u2019s discovery of his oral statements to those made by him to persons acting on behalf of the State. In stipulating that it had no oral statements made by defendant which the State intended to offer, the State made it clear that it was acting pursuant to the trial court\u2019s order of discovery. Our Supreme Court\u2019s decision in State v. Hardy, 293 N.C. 105, 235 S.E. 2d 828 (1977), makes it clear that the trial court had no authority to order discovery of statements made by defendant to third parties not acting on behalf of the State. We find no error in the State\u2019s refusal to disclose such statements. However, we do find error in the State\u2019s failure to disclose all documents it intended to use at trial. G.S. 15A-903 provides in pertinent part:\n\u201c\u00a7 15A-903. Disclosure of evidence by the State \u2014 information subject to disclosure.\u2014\n* * *\n(d) Documents and Tangible Objects. \u2014 Upon motion of the defendant, the court must order the solicitor to permit the defendant to inspect and copy or photograph books, papers, documents, photographs, motion pictures, mechanical or electronic recordings, tangible objects, or copies or portions thereof which are within the possession, custody, or control of the State and which are material to the preparation of his defense, are intended for use by the State as evidence at the trial, or were obtained from or belong to the defendant.\u201d\nThe State contends that since it did not offer the documents into evidence but merely used them on cross-examination, no harm occurred in its failure to disclose. This argument was rejected by our Supreme Court in an analogous situation in State v. Stevens, 295 N.C. 21, 36-37, 243 S.E. 2d 771, 780 (1978), where the Court stated:\n\u201cIt is implicit in the district attorney\u2019s statement to the court that his intention not to offer the questioned evidence was conditional. Obviously, he did intend to use the statements on rebuttal if defendant took the stand and gave testimony inconsistent with them. It is equally obvious that the district attorney could not know whether defendant would take the stand until defendant either did so or rested his case without having testified. This uncertainty, however, differs little from that which surrounds many decisions the prosecutor must make with reference to the introduction of available evidence. To adopt the district attorney\u2019s analysis of G.S. 15A-903(a)(2) would mean that a judge could rarely hold that a district attorney had intended to use a withheld statement at trial.\u201d\nIn the instant case, disclosure of the documents in the possession of the State and which were intended to be used by the State in any manner was also essential to the preparation of defendant\u2019s defense. For example, the State was allowed to cross-examine Mr. Patterson, an employee of the Department of Housing and Urban Development, from a twenty-page audit of the Lumberton Housing Authority dated 13 December 1974 which dealt with alleged irregularities in the Housing Authority\u2019s operations. Moreover, the State was allowed to use undisclosed documents in cross-examining defendant as to alleged, unauthorized expenditures during his several years as Executive Director of the Housing Authority as follows:\n\u201cQ. Mr. Hill, I ask you to look at the sheaf of documents. In your hand, on top, do you have a check to Sealey\u2019s 66 Service, your check No. 5032, in the amount of $841.47 and supporting documents attached thereto?\nObjection. Overruled. Exception No. 153\nA. I see the check. Can I take the time to look at the documents?\nQ. If you will look at Sealey\u2019s billing 536 dated 6/3/74.\nObjection. Overruled. Exception No. 154\n* * *\nQ. The insurance policies that were carried by the Housing Authority would demonstrate the number of trucks, wouldn\u2019t it sir?\nObjection. Overruled. Exception No. 169\nQ. Would you look through these insurance policies?\nObjection. Overruled. Exception no. 170\nA. You want me to look through them all.\nQ. I want you to satisfy yourself as to how many trucks you had?\nObjection. Overruled, exception no. 171\nQ. Would it help you to speed up your looking there if you had access to your gas records?\nObjection. Overruled. Exception No. 172\nA. I don\u2019t even recognize that item. What is it?\nQ. I\u2019m asking you. Would it help you to speed up what you are doing there to look at the gas records?\nObjection. Overruled. Exception no. 173\n* * *\nQ. I will ask you to look through there on Sealey\u2019s invoice dated 20 December 1974 and I will ask you if he did not accomplish a brake job?\nObjection. Overruled. Exception No. 178\nWITNESS: It says \u2018turn drums\u2019. That does not necessarily mean a brake job.\n* * *\nQ. Here\u2019s the point. Look over here on the other invoice, 771, please sir, 772. 771, a brake job, $210.90 on the identical vehicle. This is one billed out on the 14th of January 1975. Is that not correct?\nObjection. Overruled, exception No. 181\nA. It appears to be that, yes, sir.\nQ. Wouldn\u2019t you think Mr. Sealey would guarantee his work for a big customer like the Housing Authority of the City of Lumberton?\nObjection. Overruled. Exception No. 182\nA. Yes, I would assume he would do so.\nQ. All right, can you explain why you would have one brake job on the 20th of December 1974 and an identical brake job on the 14th of January 1975?\nObjection. Overruled. Exception No. 183\n* * *\nQ. Mr. Hill, can you tell us about a $52,080.58 overpayment to General Building and Masonry Contractors, Inc., on the project NC14-4 sometime prior to March 31, 1973?\nObjection. Overruled, exception no. 185\nA. May I see it.\nI am not familiar with a document, a report of audit dated March 31, 1973, by C. B. Scoggins, Jr., a certified public accountant, published for the Housing Authority of the City of Lumberton, North Carolina. I know that it exists. I have seen it but not since that time.\n* * *\nQ. You don\u2019t recall an overpayment of $52,000.00 that was never gotten back for the City?\nObjection. Overruled. Exception no. 189\nA. I remember an overpayment. If you will let me look at it, I will be glad to verify it.\nQ. I will let you look at it in a minute. Have you not testified that you were very busy and that you couldn\u2019t keep up with things up there at the Housing Authority?\nObjection. Overruled. Exception No. 190\nA. No, I have not testified to that.\nQ. Well, then, you remember an overpayment of $52,000.00 don\u2019t you, sir?\nObjection. Overruled. Exception no. 191\nA. I remember an overpayment.\nNo, I don\u2019t remember whether it was $10,000.00 or $52,000.00 or $100,000.00. I don\u2019t recall exactly how much it was.\nQ. Well, if it had been $100,000 overpayment would you have remembered?\nObjection. Overruled. Exception No. 192\nA. Not as to exact figures, no.\nI will be most happy to try to recall it and explain it if you will let me see it.\nQ. Do you recall seeing this item here, Report of Audit submitted by C. B. Scoggins, Jr., CPA here in Lumberton?\nObjection. Overruled. Exception No. 193\nA. Yes, sir.\u201d\nThe primary effect of the State\u2019s improper nondisclosure of documents to be used at trial was to deny defendant a meaningful opportunity to prepare his defense.\nEvidence of Independent Criminal Offenses\nDefendant contends that the trial court erred in allowing the State to introduce the testimony of John Wishart Bennett concerning his purported criminal transactions with defendant and in not granting his motion to nonsuit. We find no error.\nIt is the law of this State that evidence of one offense cannot be given against a defendant to prove that he is guilty of another. However, an exception to the general rule exists when the purpose of offering the evidence of other independent offenses is to prove quo animo, intent, design, or guilty knowledge. State v. Walton, 114 N.C. 783, 18 S.E. 945 (1894).\nIn State v. Walton, supra, defendant was charged with obtaining money under false pretenses by falsely pretending that a certain paper writing was a true and genuine order for the payment of money and that he owned or had right to transfer it. At trial, the State was allowed to offer evidence of similar transactions on the part of defendant. In the present case, the State was allowed to offer into evidence the testimony of John Wishart Bennett which tended to show other instances of defendant\u2019s tacit approval of false billings. This evidence was relevant and admissible on the issues of intent to defraud in the aiding and abetting in the obtaining of property by false pretenses charges and the corporate malfeasance charges.\nMotion for Judgment of Nonsuit\nThe aiding and abetting in the obtaining of property by false pretenses offenses for which defendant was charged occurred prior to the amendment of G.S. 14-100. In determining the propriety of disallowing defendant\u2019s motion to nonsuit on these charges, we must look at the crime\u2019s elements as it then existed. State v. Hart, 287 N.C. 76, 213 S.E. 2d 291 (1975); State v. Melton, 7 N.C. App. 721, 173 S.E. 2d 610 (1970).\nPrior to the amendment of G.S. 14-100, a motion for nonsuit of a charge of obtaining property by false pretense had to be denied if there were evidence which, if believed, would establish or from which the jury could reasonably infer that the defendant (1) obtained value from another without compensation, (2) by a false representation of a subsisting fact, (3) which was calculated and intended to deceive, and (4) did in fact deceive. State v. Agnew, 294 N.C. 382, 241 S.E. 2d 684 (1978), cert. denied, 439 U.S. 830, 58 L.Ed. 2d 124, 99 S.Ct. 107 (1978).\nTo sustain a conviction of the defendant for aiding and abetting,\n\u201cthe State\u2019s evidence must be sufficient to support a finding that the defendant was present, actually or constructively, with the intent to aid the perpetrator in the commission of the offense should his assistance become necessary and that such intent was communicated to the actual perpetrator. Such communication of intent to aid, if needed, does not, however, have to be shown by express words of the defendant, but may be inferred from his actions and from his relation to the actual perpetrator.\u201d\nState v. Rankin, 284 N.C. 219, 223, 200 S.E. 2d 182, 185 (1973).\n\u201cUpon motion for nonsuit, all the evidence admitted, whether competent or incompetent, including that offered by defendant which is favorable to the state, must be considered in the light most favorable to the state, and the state is entitled to every reasonable intendment thereon and every reasonable inference therefrom.\u201d (Footnotes omitted.) 4 Strong\u2019s N.C. Index 3d, Criminal Law, \u00a7 104, p. 541.\nThe State\u2019s evidence, when viewed in the light most favorable to it, tends to show that defendant had placed Britt on the Lumberton Housing Authority\u2019s payroll at full pay, although he did not work a full forty hours. In return, Britt agreed to acquire materials for the Housing Authority through his tile company. When this arrangement was unilaterally terminated by Hill, he agreed to help Britt secure the difference in the cost of materials. Britt subsequently presented prepaid freight bills to Hill and demanded payment in that amount. Defendant Hill asked Britt if he paid him for the freight, would he be satisfied. After Britt said that he would be satisfied, Hill placed his arms around him, told Joan Bacot, an employee of the Housing Authority, to pay Britt the original freight bill then presented and two others to be subsequently presented. After Ms. Bacot prepared the vouchers for payment, on each occasion, defendant Hill signed them authorizing payment. When Ms. Bacot discovered that the freight bills had been prepaid, defendant informed her that she need not be concerned with it and that they would continue to pay Mr. Britt\u2019s invoices, even though the Housing Authority had already prepaid the freight. We hold that when viewed in the light most favorable, this evidence was sufficient to withstand defendant\u2019s motion to nonsuit on the charge of aiding and abetting the obtaining of property by false pretenses. Defendant sets forth several arguments averring a lack of intent to defraud and a lack of deception in fact. Whether or not defendant intended to deceive the Housing Authority was a question for the jury to decide. See State v. Walton, supra. The State, through its witness Bennett, presented competent evidence to establish the existence of this required element. Similarly, competent evidence was presented to show a reliance on defendant\u2019s misrepresentation of fact as then required by G.S. 14-100. Defendant would have us hold that since he knew of the fraud, his knowledge would be imputed to the corporation, and thus, he could not be guilty of aiding and abetting the obtaining of property by false pretenses, because the corporation did not rely on the false representation. We reject this argument.\nNotice to or knowledge of an agent will not be imputed to his principal where the person claiming the benefit of the notice or those whom he represents colluded with the agent to defraud his principal. Jenkins v. Renfrow, 151 N.C. 323, 66 S.E. 212 (1909). Thus, defendant\u2019s knowledge would not be imputed to the Housing Authority. See State v. Agnew, supra; accord, Rand v. Commonwealth, 176 Ky. 343, 195 S.W. 802 (1917).\nThe State presented evidence showing that an agent of the Housing Authority had in fact been deceived. This was sufficient, State v. Grier, 35 N.C. App. 119, 239 S.E. 2d 870 (1978), and the court did not err in allowing the agent to so testify.\nVariance\nDefendant contends that a fatal variance exists in the indictments on the charges of aiding and abetting the obtaining of property by false pretenses, in that Britt Tile Company and not William Sammy Britt is named as the claimant for reimbursement, and therefore, Britt was not the person aided.\nAll the evidence tends to show that Britt was the person aided and abetted as alleged in the indictments and that he submitted the invoices with the intent to benefit himself. We find no error.\nSufficiency of Indictments Under G.S. 14-254\n\u201cNo indictment, whether at common law or under a statute, can be good if it does not accurately and clearly allege all of the constituent elements of the crime sought to be charged. Nothing in GS 15-153 or in GS 15-155 dispenses with the requirement that the warrant or indictment charge all the essential elements of the offense.\u201d (Footnotes omitted.)\n7 Strong\u2019s N.C. Index 3d, Indictment and Warrant, \u00a7 9, p. 125.\nG.S. 14-254 (as enacted at the time of the alleged offenses) provided:\n\u201c\u00a7 14-254. Malfeasance of corporation officers and agents. \u2014If any president, director, cashier, teller, clerk or agent of any corporation shall embezzle, abstract or willfully misapply any of the moneys, funds or credits of the corporation, or shall, without authority from the directors, issue or put forth any certificate of deposit, draw any order or bill of exchange, make any acceptance, assign any note, bond, draft, bill of exchange, mortgage, judgment or decree, or make any false entry in any book, report or statement of the corporation with the intent in either case to injure or defraud or to deceive any officer of the corporation, or if any person shall aid and abet in the doing of any of these things, he shall be guilty of a felony, and upon conviction shall be imprisoned in the State\u2019s prison for not less than four months nor more than fifteen years, and likewise fined, at the discretion of the court.\u201d\nTo support convictions for willful misapplication of corporate moneys, the indictments must allege an accompanying intent to injure, defraud, or deceive an officer of the corporation. Here, the indictments allege an intent \u201cto defraud or to deceive the said Housing Authority of the City of Lumberton, North Carolina.\u201d They do not comply with the statutory requirement of G.S. 14-254 and must be quashed. See State v. Perry, 291 N.C. 586, 231 S.E. 2d 262 (1977); State v. King, 285 N.C. 305, 204 S.E. 2d 667 (1974).\nReading of Indictments\nDefendant assigns as error the trial court\u2019s reading of the indictments to the jury before and during trial.\nG.S. 15A-1213 provides:\n\u201c\u00a7 15A-1213. Informing prospective jurors of case.\u2014 Prior to selection of jurors, the judge must identify the parties and their counsel and briefly inform the prospective jurors, as to each defendant, of the charge, the date of the alleged offense, the name of any victim alleged in the pleading, the defendant\u2019s plea to the charge, and any affirmative defense of which the defendant has given pretrial notice as required by Article 52, Motions Practice. The judge may not read the pleadings to the jury.\u201d\n\u201cThe purpose of the statute, when read as a whole and considered together with the Official Commentary, apparently is to avoid giving jurors \u2018a distorted view of the case\u2019 through the \u2018stilted language of indictments.\u2019 \u201d State v. Laughinghouse, 39 N.C. App. 655, 657, 251 S.E. 2d 667, 668, appeal dismissed, 297 N.C. 615 (1979).\nIn Laughinghouse, supra, the trial court had read a portion of the indictment to the jury as a part of his charge after the close of the evidence. We found no violation of G.S. 15A-1213, because we felt that it would not serve the statutory purpose. In the instant case, the trial court read the indictments not only while giving his charge, but also at the very beginning of the trial. Thus, the very evil sought to be prevented was furthered, ie., giving the jury a distorted view of the case through the stilted language of the indictments. This was prejudicial error.\nStatement of Belief\nThe trial court erred in preventing defendant from eliciting Britt\u2019s testimony that he regarded the money \u201cjustly due him.\u201d It was manifestly competent to show the absence of felonious intent to defraud on the part of defendant. Cf. State v. Jessup, 181 N.C. 548, 106 S.E. 833 (1921).\nElection of Charges\nDefendant next assigns as error the trial court\u2019s refusal to require the State to elect between the charges of aiding and abetting the obtaining of property by false pretenses and charges of malfeasance by a corporate officer.\nThe trial court was not required to make the State elect between the charges contained in the indictments at the beginning of the trial and before any evidence had been introduced. State v. Summrell, 282 N.C. 157, 192 S.E. 2d 569 (1972). Nevertheless, the question becomes whether the trial court should have required an election later.\nThe essence of defendant\u2019s argument is a plea of double jeopardy. Unless each statute requires proof of an additional fact which the other does not, the Double Jeopardy Clause prohibits successive prosecutions as well as cumulative punishment. Brown v. Ohio, 432 U.S. 161, 53 L.Ed. 2d 187, 97 S.Ct. 2221 (1977); State v. Birckhead, 256 N.C. 494, 124 S.E. 2d 838 (1962); State v. Cannon, 38 N.C. App. 322, 248 S.E. 2d 65 (1978). Applying the foregoing \u201cadditional facts\u201d test, we hold the trial court did not err in denying defendant\u2019s motion for an election of charges.\nTo sustain a conviction of aiding and abetting the obtaining of property by false pretenses, the State was required to show that defendant indicated, encouraged, or assisted William Sammy Britt in the obtaining of the Housing Authority\u2019s property by false pretenses. To sustain a conviction for malfeasance of a corporate officer, the State was required to show a willful misapplication of the Housing Authority\u2019s moneys, funds, or credits. Each offense required proof of an element not common to the other. They are not the same both in fact and in law, and the State was not required to make an election.\nUpon review of the record, we are convinced that the trial judge\u2019s failure to request another judge to consider defendant\u2019s motion for recusation, his allowance of the State\u2019s use of undisclosed documents on cross-examination of defendant, and his reading of the bill of indictments to the jury prevented defendant from obtaining a fair trial on the false pretenses offenses. Accordingly, we need not consider defendant\u2019s other assignments of error, since they may not reoccur at trial.\nThe judgments entered are vacated in Case Nos. 78CR5945, 78CR5946, and 78CR5947, and defendant is awarded a\nNew trial in Case Nos. 78CR5948, 78CR5949, and 78CR5950.\nJudges Clark and Arnold concur.", "type": "majority", "author": "ERWIN, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Rudolph A. Ashton III, for the State.", "I. Murchison Biggs; and Page & Britt, by W. Earl Britt, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GERALD BONNER HILL\nNo. 7916SC590\n(Filed 19 February 1980)\n1. Judges \u00a7 5\u2014 motion for recusation not referred to another judge \u2014 error\nThe trial judge erred in failing to refer a motion for recusation to another judge for consideration and disposition where defendant testified at the criminal trial of a fellow officer of the Lumberton Housing Authority; immediately after his testimony the trial judge stated that defendant had implicated himself in that trial; upon being informed that defendant had six cases pending against him in superior court and that his bond was set at $2500 in all six cases, the trial judge increased defendant\u2019s bond because he thought it was unusually low and increased it without any reference as to whether or not defendant would be present at his trial; and a reasonable person could conclude that the judge had formed an opinion against defendant.\n2. Constitutional Law \u00a7 30\u2014 defendant\u2019s statement to third person \u2014 disclosure by State not required \u2014 failure to disclose documents \u2014 defendant prejudiced\nDefendant was not prejudiced by the State\u2019s failure to disclose prior to trial oral statements made by defendant to a third party witness, but defendant was prejudiced by the State\u2019s failure to disclose documents which the State intended to use at trial, including an audit of the housing authority of which defendant was executive director, and the fact that the State did not offer the documents into evidence but merely used them on cross-examination did not alter the fact that harm resulted from the nondisclosure, since the primary effect of the State\u2019s improper nondisclosure was to deny defendant a meaningful opportunity to prepare his defense.\n3. Criminal Law \u00a7 34.7\u2014 obtaining money by false pretense \u2014 defendant\u2019s approval of other false billings \u2014 admissibility to show intent\nIn a prosecution of defendant, the former executive director of a city housing authority, for aiding and abetting in the obtaining of property by false pretenses and for corporate malfeasance, the trial court did not err in permitting testimony by a witness which tended to show other instances of defendant\u2019s tacit approval of false billings, since such evidence was relevant and admissible on the issue of intent to defraud.\n4. False Pretense \u00a7 3.1\u2014 director of housing authority \u2014 obtaining money by false pretenses \u2014sufficiency of evidence\nIn a prosecution of defendant, former executive director of a city housing authority, for aiding and abetting in the obtaining of property by false pretenses, evidence was sufficient to be submitted to the jury where it tended to show that defendant approved payment on freight bills when the freight bills had been prepaid; furthermore, there was no merit to defendant\u2019s contention that his knowledge of the fraud would be imputed to the corporation and he thus could not be guilty of aiding and abetting the obtaining of property by false pretenses because the corporation did not rely on the false representation, since notice to or knowledge of an agent will not be imputed to his principal where the person claiming the benefit of the notice or those whom he represents colluded with the agent to defraud his principal, and defendant\u2019s knowledge thus would not be imputed to the housing authority.\n5. Indictment and Warrant \u00a7 17.1\u2014 aiding and abetting obtaining of property by false pretenses \u2014 no variance between indictment and proof\nThere was no fatal variance between indictments charging aiding and abetting the obtaining of property by false pretenses and evidence at trial where all the evidence tended to show that the person named in the indictments was the person aided and abetted, and all the evidence tended to show that he submitted invoices for bills which had already been paid with the intent to benefit himself.\n6. Indictment and Warrant \u00a7 9.9\u2014 corporate malfeasance charged \u2014 allegation of intent improper \u2014 indictments quashed\nIndictments charging defendant with corporate malfeasance in violation of G.S. 14-254 must be quashed where the statute required that they allege an intent to injure, defraud, or deceive an officer of the corporation, but the indictments in this case alleged an intent \u201cto defraud or to deceive the said Housing Authority of the City of Lumberton, North Carolina.\u201d\n7. Criminal Law \u00a7 111.1\u2014 reading indictments to jury \u2014 defendant prejudiced\nThe trial court erred in reading the indictments to the jury at the very beginning of the trial and during the charge to the jury at the close of the evidence. G.S. 15A-1213.\n8. False Pretense \u00a7 3\u2014 aiding and abetting in obtaining money by false pretense \u2014 evidence of lack of felonious intent \u2014 exclusion error\nIn a prosecution of defendant, the former executive director of a city housing authority, for aiding and abetting in the obtaining of property by false pretenses where the evidence tended to show that defendant approved the payment of freight bills to a fellow employee when the freight bills were prepaid, the trial court erred in preventing defendant from eliciting the fellow employee\u2019s testimony that he regarded the money \u201cjustly due him,\u201d since such testimony was manifestly competent to show the absence of felonious intent to defraud on the part of defendant.\n9. Indictment and Warrant \u00a7 8.4\u2014 aiding and abetting false pretenses \u2014 malfeasance by corporate officer \u2014 election between offenses not required\nThe trial court did not err in refusing to require the State to elect between the charges of aiding and abetting the obtaining of property by false pretenses and charges of malfeasance by a corporate officer, since the offenses were not the same both in fact and in law, and each offense required proof of an element not common to the other.\nAppeal by defendant from Gavin, Judge. Judgments entered 26 January 1979 in Superior Court, ROBESON County. Heard in the Court of Appeals 14 November 1979.\nDefendant, a former Executive Director of the Housing Authority of the City of Lumberton, was indicted on three counts of aiding and abetting William Sammy Britt in the obtaining of property belonging to the Housing Authority by false pretenses and on three counts of corporate malfeasance in violation of G.S. 14-254 arising from the same transactions. The jury returned a verdict of guilty as charged on all six counts. From the sentences imposed, defendant appeals.\nAttorney General Edmisten, by Assistant Attorney General Rudolph A. Ashton III, for the State.\nI. Murchison Biggs; and Page & Britt, by W. Earl Britt, for defendant appellant." }, "file_name": "0136-01", "first_page_order": 164, "last_page_order": 180 }