#### STATE v. PAT TENNANT, Alias J. C. BRADY.

(Filed 11 November, 1942.)

1. Indictment § 12: Criminal Law § 56—

A defendant cannot take advantage after conviction of alleged deficiencies in a bill of indictment, where lie has made no motion to quash or in arrest of judgment.

2. Embezzlement § 7—

In a prosecution for embezzlement, evidence that defendant came into the State, opened a place of business, bought on consignment goods to *278a large amount, and within less than a month disappeared from the State with the bulk of the goods without paying therefor, is held, sufficient to convict.

3. Criminal Xiaw § 3—

The scienter, the guilty knowledge and intent, must exist at the time of the. commission of the offense. It matters not when acquired so long as defendant acted knowingly and feloniously at the time.

Appeal by defendant from Carr, <7., at May Term, 1942, of Wake.

No error.

Criminal prosecution tried on bill of indictment charging the crime of embezzlement.

Defendant and one C. W. Tennant of Alabama went to Apex in November or December, 1941. 0. W. Tennant leased certain property designed for use as a filling station and defendants, representing that they were brothers, opened and began to operate a service station as partners. The station was operated in the name of C. W. Tennant Service Station. On 2 December, C. W. Tennant procured the delivery of tires, tubes and other auto accessories by Calloway Tire & Service Company, wholesale dealers in automobile accessories, under a verbal assignment agreement. It was agreed that the consignment agreement would be reduced to writing later. On 8 December, defendant came to Raleigh, obtained additional merchandise from the same firm and carried it to the station in Apex. On 9 December, an agent of the prosecutor carried a written consignment agreement to Apex for execution. This agreement was signed by defendant in the name of 0. W. Tennant and in his assumed name on his own behalf. Ten or twelve days later the merchandise had disappeared and the station was closed. Defendant was arrested in Alabama and 0. W. Tennant was arrested in Atlanta.

The State offered evidence tending to show that a large part, if not all, of the consigned merchandise was carried out of the State by automobile and sold or otherwise disposed of. There was other incriminating evidence.

Defendant and his associate admit that the merchandise was sold but contend it was disposed of in the regular course of business in Apex. They make no contention that it was ever accounted for.

There was a verdict of guilty. From judgment thereon defendant appealed.

Attorney-General McMullan and Assistant Aiiorneys-General Patton and Rhodes for the State.

A. B. Breece for defendant, appellant.

*279Barnhill, J.

Defendant’s assignment of error, based on bis exception to tbe refusal of tbe court to dismiss as of nonsuit under 0. S., .4643, cannot be sustained. Tbe evidence, wben considered in tbe light most favorable to tbe State, tends to show a deliberate scheme on tbe part of tbe defendant and bis associate to obtain possession of merchandise under tbe guise of tona fide retail dealers, to surreptitiously remove it from tbe State, convert tbe proceeds to their own use and then to depart tbe State and tbe jurisdiction of its courts. They were temporarily successful in their scheme but were later apprehended and put on trial. Now that defendant is brought to tbe bar of justice be cannot successfully challenge tbe sufficiency of tbe evidence against him.

Defendant tendered certain prayers for instruction to tbe effect that tbe jury could not convict unless they found that this defendant bad actual knowledge of tbe prior verbal agreement and of tbe nature, kind and quantity of merchandise delivered thereunder at tbe time be signed tbe written agreement. He excepts • for that tbe court declined to so instruct tbe jury.

Tbe assignment cannot be sustained. Tbe scienter, the guilty knowledge and intent, must exist at tbe time of tbe commission of tbe offense. It matters not wben acquired so long as tbe defendant acted knowingly and feloniously at tbe time.

On this aspect of tbe case tbe court charged tbe jury in simple and understandable language that before they could convict tbe defendant they must find beyond a reasonable doubt that tbe merchandise was delivered and being held on a consignment agreement; that tbe defendant acquired and bad actual knowledge that they were being so held; that with such knowledge be converted some or all of said merchandise to bis own use or misapplied it “to such an extent that rendered it impossible for tbe owner thereof to again get possession of it”; and that at tbe time be so converted, or misapplied it, “be bad tbe felonious and fraudulent intent to convert it to bis own use and to misapply it to such an extent that tbe owner would be permanently deprived of tbe property.” As defendant was a copartner this is as favorable to tbe defendant as be bad any right to demand. S. v. Summers, 141 N. C., 841; S. v. Shipman, 202 N. C., 518, 163 S. E., 657; S. v. Pace, 210 N. C., 255, 186 S. E., 366.

Certain other exceptions are directed to alleged error in tbe admission of evidence relating to tbe codefendant. This evidence was for impeachment and affected C. ~W. Tennant only. Even if incompetent — and it was not — this defendant cannot complain.

In bis argument here defendant made some reference to alleged deficiencies in tbe bill of indictment. However, there was no motion to quash or in arrest of judgment either here or in the court below. Tbe sufficiency of tbe bill is not challenged.

*280Other exceptions appearing in the record are not of such merit as to require discussion. In the trial below we find

No error.