{ "id": 8626903, "name": "STATE v. JIM A. THORNTON", "name_abbreviation": "State v. Thornton", "decision_date": "1960-01-14", "docket_number": "", "first_page": "658", "last_page": "662", "citations": [ { "type": "official", "cite": "251 N.C. 658" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "71 S.E. 2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "86 Ga. App. 290", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 1557694 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/ga-app/86/0290-01" ] }, { "cite": "147 N.E. 766", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "196 Ind. 213", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1509992 ], "opinion_index": 0, "case_paths": [ "/ind/196/0213-01" ] }, { "cite": "41 S.E. 709", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "115 Ga. 212", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 412610, 412979 ], "opinion_index": 0, "case_paths": [ "/ga/115/0212-01", "/ga/115/0212-02" ] }, { "cite": "78 S.E. 829", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "13 Ga. App. 67", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 1281609 ], "opinion_index": 0, "case_paths": [ "/ga-app/13/0067-01" ] }, { "cite": "10 S.E. 554", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "104 N.C. 908", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652722 ], "opinion_index": 0, "case_paths": [ "/nc/104/0908-01" ] }, { "cite": "88 A. L. R. 485", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "193 S.E. 657", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "212 N.C. 300", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8607840 ], "opinion_index": 0, "case_paths": [ "/nc/212/0300-01" ] }, { "cite": "40 S.E. 2d 460", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "227 N.C. 70", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621223 ], "opinion_index": 0, "case_paths": [ "/nc/227/0070-01" ] }, { "cite": "91 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8697301 ], "opinion_index": 0, "case_paths": [ "/nc/91/0561-01" ] }, { "cite": "45 S.E. 582", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "133 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659339 ], "opinion_index": 0, "case_paths": [ "/nc/133/0680-01" ] }, { "cite": "143 S.E. 3", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "195 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630610 ], "opinion_index": 0, "case_paths": [ "/nc/195/0537-01" ] }, { "cite": "92 S.E. 2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "244 N.C. 57", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219595 ], "opinion_index": 0, "case_paths": [ "/nc/244/0057-01" ] }, { "cite": "38 S.E. 2d 166", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "226 N.C. 414", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620799 ], "opinion_index": 0, "case_paths": [ "/nc/226/0414-01" ] }, { "cite": "78 S.E. 2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "238 N.C. 392", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609253 ], "opinion_index": 0, "case_paths": [ "/nc/238/0392-01" ] }, { "cite": "89 S.E. 2d 781", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "243 N.C. 100", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621471 ], "opinion_index": 0, "case_paths": [ "/nc/243/0100-01" ] }, { "cite": "111 S.E. 2d 714", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "92 S.E. 2d 401", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "244 N.C. 53", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219541 ], "opinion_index": 0, "case_paths": [ "/nc/244/0053-01" ] }, { "cite": "221 N.C. 544", "category": "reporters:state", "reporter": "N.C.", "pin_cites": [ { "page": "558" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 538, "char_count": 10212, "ocr_confidence": 0.545, "pagerank": { "raw": 1.04814847347756e-06, "percentile": 0.9841674167103951 }, "sha256": "47b0e1305d30f9fccd8e832337a3120f9b3e1fcb3e906e676a8e12c71412c5a2", "simhash": "1:9723e37874438b69", "word_count": 1768 }, "last_updated": "2023-07-14T17:26:21.126874+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. JIM A. THORNTON." ], "opinions": [ { "text": "PARKER, J.\nDefendant, as he had a right to do, filed in this Court a written motion in arrest of the judgment of the Superior Court, upon the ground of insufficiency of the indictment. Rule 21, Rules of Practice in the Supreme Court, 221 N.C. 544, 558; S. v. Lucas, 244 N.C. 53, 92 S.E. 2d 401.\nIt is an essential of juridiction that a criminal offense shall be sufficiently charged in a warrant or an indictment. S. v. Wallace and Holder ante, 378, 111 S.E. 2d 714; S. v. Strickland, 243 N.C. 100 89 S.E. 2d 781; S. v. Thorne, 238 N.C. 392, 78 S.E. 2d 140; S. v. Morgan, 226 N.C. 414, 38 S.E. 2d 166.\nThis Court said in S. v. Cox, 244 N.C. 57, 92 S.E. 2d 413:A \u201cdefect in a warrant or bill of indictment is not cured by the statute which enables the defendant to call for a bill of particulars, G.S. 15-143. This section applies only when further information not required to be set out in the indictment is desired. The \u2018particulars\u2019 authorized are not a part of the indictment. Request for bill of particulars is addressed to the discretion of the court. Such a bill therefore does not supply any matter which the indictment must contain.\u201d\nEmbezzlement was not an offense at common law. S. v. Maslin, 195 N.C. 537, 143 S.E. 3; S. v. McDonald, 133 N.C. 680, 45 S.E. 582; S. v. Hill, 91 N.C. 561. The offense of embezzlement is entirely statutory. S. v. Blair, 227 N.C. 70, 40 S.E. 2d 460; S. v. Whitehurst, 212 N.C. 300, 193 S.E. 657; S. v. Maslin, supra; S. v. McDonald, supra.\nThe indictment was drawn under the provisions of G.S. 14-90. This statute makes it a felony for the class of persons specified in, and amenable to, that statute to embezzle money, goods, etc., \u201cbelonging to any other person or corporation, which shall have come into .'his possession or under his care.\u201d See S. v. Blair, supra; S. v. Whitehurst, supra.\nIt seems certain that \u201cThe Chuck Wagon\u201d is not a natural person.\nThis is said in 29 C. J. S., Embezzlement, Section 31b (1), In General: \u201cIt has been held that, where the owner of the embezzled property is an association, partnership, corporation, or other firm or organization, there must be allegations showing such organization to be a legal entity capable of owning property as such or the individuals comprising the same and owning the property should \u2018be set out as owners.\u201d Section 31b (2), Corporations, states: \u201cIn a prosecution for embezzlement from a corporation, the indictment or information should allege its incorporation and give its corporate name as fixed by law. . . .\u201d\nAn exhaustive annotation in 88 A. L. R. 485, et seq. thoroughly discusses, and cites many cases, on the question now under, consideration. One line of authorities holds to the proposition that, in a prosecution for larceny or embezzlement, it is necessary to allege in the indictment that the owner of the property, if not a natural person, is a corporation or otherwise a legal entity capable of owning property. Another line of authorities is cited, where in some jurisdictions the foregoing rule has been relaxed, and which holds that where the name of the company alleged in the indictment imports an association or a corporation capable of owning property as a legal entity, it is not necessary to allege specifically that it is a corporation. See 18 Am. Jur., Section 45.\nIn S. v. Grant, 104 N.C. 908, 10 S.E. 554, the indictment charged the larceny of a barrel of kerosene oil, the property of \u201cThe Richmond and Danville Railroad Company.\u201d This Court said: \u201cWe are also of the opinion that the fact of incorporation need not be alleged where the corporate name is correctly set out in the indictment.\u201d The allegation in the indictment clearly imports that the owner of the property charged to have been .stolen is a corporate entity capable of owning property, and was held sufficient.\nIn Gibson v. State, 13 Ga. App. 67, 78 S.E. 829, the Court held: \u201cThe words \u2018Morning Star Colored Baptist Church\u2019 import a religious association, and such a right to the possession of property suitable for church-purposes as will authorize the ownership of any property used by iFwhich may have been stolen to be laid in such a congregation of persons.\u201d See also Mattox v. State, 115 Ga. 212, 41 S.E. 709.\nDavis v. State, 196 Ind. 213, 147 N.E. 766, was a prosecution for embezzlement, and the ownership of the money allegedly embezzled was charged in the indictment as being in Newton County Farm Bureau. The Court said: \u201cIn this State, an unincorporated lodge or society is an \u2018association\u2019 within the statute, so as to make its treasurer liable for the embezzlement of its funds in his hands. . . . The name \u2018Newton County Farm Bureau\u2019 imports a corporation or an association. It could be either. And it is not necessary that there be a statement in the indictment as to which it is.\u201d\nIn Nickles v. State, 86 Ga. App. 290, 71 S.E. 2d 578 (1952), the Court accurately and tersely stated what we consider the better rule, as follows: \u201cLarceny after trust is a species of larceny and in prosecutions for the former offense, as in those for the latter, it is necessary to allege ownership of the property in a person, corporation, or other legal entity capable of owning property, in order to enable the accused to know exactly what charge he will be called upon at the trial to meet, and to enable him, if such should be the case, to plead a former acquittal or conviction. ... If the property alleged to have been stolen is that of an individual, the name of the individual, if known, should be stated; if it is the property of a partnership, or other quasi artificial person, the names of the persons composing the \u00a1partnership, or quasi artificial person, should be given; if it is the property of a corporation, the name of the corporation should be given, and the fact that it is a corporation stated, unless the name itself imports a corporation.\u201d Our case of S. v. Grant, supra, is in accord with this view.\nG.S., Oh. 55, Business Corporations Act, Art. 3, Formation, Name and Registered Office, Section 55-12, Corporate Name, (a) reads: \u201cThe corporate name shall contain the wording \u2018corporation,\u2019 \u2018incorporated,\u2019 \u2018limited\u2019 or \u2018company\u2019 or an abbreviation of one of such words.\u201d The former Chapter 55 of G.S., entitled \u201cCorporations,\u201d in Section 55-2, subsection 1, provided \u201cThe name adopted must end with the word \u2018company,\u2019 \u2018corporation,\u2019 \u2018incorporated\u2019 or the abbreviation \u2018inc.\u2019 . . . .\u201d\nIn the indictment sub judice, there is no allegation that \u201cThe Chuck Wagon\u201d is a corporation, and the words \u201cThe Chuck Wagon\u201d do not import a corporation.\nThe bill of indictment on its face is fatally defective. The motion in arrest of judgment is allowed, and it is ordered that the judgment be arrested.\nThe legal effect of arresting the judgment is to vacate the plea of guilty and the judgment of imprisonment below, and the State, if it so desires, may proceed against the defendant upon a sufficient indictment. S. v. Wallace and Holder, supra, and cases there cited.\nThe case on appeal before us contains only the organization of the court, the indictment, the plea, the judgment, appeal entries, and assignments of error.\nJudgment arrested.", "type": "majority", "author": "PARKER, J." } ], "attorneys": [ "Malcolm B. Seawell, Attorney General, and T. W. Bruton, Assistant Attorney General for the State.", "McRae, Cobb & Berry for defendant, appellant." ], "corrections": "", "head_matter": "STATE v. JIM A. THORNTON.\n(Filed 14 January, 1960.)\n1. Criminal Haw \u00a7\u00a7 121, 140\u2014\nDefendant may file in iSu/preme Count on appeal a written motion in arrest of judgment for insufficiency of the indictment. Rule 21, Rules of Practice in the Supreme Court.\n2. Criminal Haw \u00a7 18\u2014\nIt is an essential of jurisdiction that a criminal offense shall be sufficiently charged in the warrant or indictment.\n3. Indictment and Warrant \u00a7 9\u2014\nA bill of particulars cannot supply any matter which the indictment must contain in order to charge a criminal offense.\n4. Embezzlement \u00a7 1\u2014\nThe offense of embezzlement is entirely statutory.\n5. Embezzlement \u00a7 4\u2014\nAn indictment for embezzlement must aver tbe name of the owner or owners of the property embezzled or, if the owner is a corporation, the name of the corporation should be given, and the fact that it is a corporation stated unless the name itself imports a corporation.\n6. Same\u2014\nAn indictment for embezzlement of the property of \u201cThe Chuck Wagon\u201d is fatally defective in the absence of allegation that the owner of the property was a corporation, since such name does not import a corporation. G-.S. 55-12.\n7. Criminal Jjaw \u00a7 121\u2014\nKhe legal effect of arresting the judgment on a fatally defective indictment is to vacate the plea and the judgment, but the State may thereafter proceed upon a sufficient indictment if it so elects.\nAppeal by defendant from McKinnon, J., February 1959 Term, Of ORANGE.\nThe defendant was tried upon the following bill of indictment: \u201cThe jurors for .the State upon their oath present, That Jim A. Thornton late of the County of Orange, on the 20th & 31st day of December A. D. 1958, in the county aforesaid, was the agent, consignee, clerk, employee and servant of one The Chuck Wagon, and as such agent, consignee, clerk, employee and servant as aforesaid, was then and there entrusted by the said The Chuck Wagon to receive money for the said Chuck Wagon. And that -being so employed and entrusted as aforesaid, the said Jim A. Thornton then -and there did receive and take into his possession and have under his -care, for and on account of the said The Chuck Wagon, certain property, to wit: Six and no/100 ($6.00) Dollars. And that afterwards, to wit, on the day and year aforesaid, in the county aforesaid, he, the said Jim A. Thornton (then -and there being of the age of sixteen years and more) knowingly, wilfully, fraudulently, corruptly, unlawfully and feloniously did embezzle and convert to his own use, and did take, malee away with and -secrete with intent to embezzle and fraudulently convert to his own use, the said Six and no/100 ($6.00) Dollars so received by him as aforesaid and then and there belonging to the said The Chuck Wagon against the form of the statute in such cases made and provided and against the peace and dignity of the State.\u201d\nPlea: Guilty.\nFrom a judgment of imprisonment, defendant appeals.\nMalcolm B. Seawell, Attorney General, and T. W. Bruton, Assistant Attorney General for the State.\nMcRae, Cobb & Berry for defendant, appellant." }, "file_name": "0658-01", "first_page_order": 702, "last_page_order": 706 }