The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1896-12-22

Jones and Powell tried IN Durham Coun-
ty last spring. lit provoked much news
paper discussion at the time. Ihere IS
to be a new trial The following is the
decision OF the Supreme court:
North Carolina Supreme Court:Septem-
Der term, 1896. No. TIA, Durham county.
J. s. Durham VS.. Jones * Powell, APP
pellants.
J. s. Manning, Guthrie and Guthrie
and +. III. Busbee for appellants.
Boone. Merritt and Bryant and Fred.
A. Green for appellee.
AVERY, J. Embezzlement has been
called a statutory larceny because of the
fact that the earlier English statutes
were thought to be but declaratory OF
the common law, that certain acts there
in mentioned were punishable as larceny.
2 Bishop Or. Law, Sections 3l9,oZo,-
327,1. The last act passed in this State
(Code Section 1914, Laws 1S71-'72 Chap
ter 145 Section y extends the scope of
the law so as to bring within its terms
an agent, servant or employee "of any
corporation. person or partnership" who
should "embezzle or fraudulently con-
vert to his own use. any money, goods
or other chattels. which shall come
into his possession or under his care,
and by providing that "he shall be deem
ed guilty of felony and punished III
cases Of larceny" Wharton Cr. Law
Sec. 1917 I'D. The use OF the word en-
bezzlement in this statute is but another
mode of describing the fraudulent mis-
appropriation of the goods of the en-
ployees or agents own use 2 Bishop,
supra Sec. 1915, / and 2. The warrant
upon which the plaintiff was arrested re-
ferred to the affidavit or complaint Of j.
a. Jones, one of the defendant firm, and
thereby made it a part of the process.
The complaint sets forth, amongst other
things, that J. S. Durham did, unlaw-
fully and wilfully, knowingly and de-
signedly, by means OF false representa-
lions, obtain ice from j. A. Jones and
A. Nj. Powell, trading as Jones & Powell,
with intent to cheat and de-
fraud Jones & Powell of said ice, say
ing he would retain a certain
part Of the proceeds of the sale of
said ice, after said Jones q Powell
had been paid in full, whereas he in
tended to convert the whole of the pro-
ceeGs of sale of said ice to his own use
or to appropriate the ice itself, having
beforehand made an arrangement with
one w. T.. Sanders to ship said ice to his
ice house and to pay him out of the
proceeds of said ice or with
ice itself, an account said Durham
owed said Sanders; that the ice was to
be sold from the ice house Of said San
ders, and that said Durham was to pur-
chase from him so much as not to in
clude the money owed said Sanders. and
the said arrangement was carried into
effect contrary, &c" 1T is proper to
premise, that the law does not intend or
require that Justice Of the Peace shall
describe a criminal offence in a warrant,
issued for the purpose of preliminary ex-
animation, with the same legal accuracy
as is necessary in an indictment. But
the complaint does aver: j, That there
was such an agreement as constituted
the plaintiff the agent of Jones Il Powell
to sell ice for them, paying them GER
tain proportion of the proceeds of sale,
and taking the residue as his compensa-
tion for selling. ?, That he then enter
tanned the fraudulent purpose OF convert
ing the whole Of the ice or the proceeds
OF its sale to his own use, by applying
It in discharge Of his own debt. 3, That
he carried the said arrangement, to so
misappropriate the proceeds Of sale, in
to effect. In words that could not have
been misunderstood, the warrant put the
defendant on notice that he was charged
with agreeing to constitute, and constl-
tuting himself an agent for Jones ~
Powell, and with fraudulently misappro-
priating the goods and money of these
defendants, that came into his hands In
that capacity. There was also testimony
that tended to prove the agency as We'll
as the wrongful misrepresentation.
In view Of the nature of the charge in
the warrant and the evidence offered IN
support of it, the court erred in restrict
ing the defendants to showing probable
cause. that the plaintiff was guilty
of cheating by false pretences. and IN re-
fusing to charge as requested in instrue-
ton number in the prayer OF the de-
PENDANTS to-wit: that IF the jury believe
from tile evidence that the plaintiff agreed
with the defendant ]. 4. Jones, as n
member Of the firm Of Jones 81 Powell,
that if the defendant firm would ship him
n car load Of ice, he would sell the ice by
retail for cash, and out of the first moneys
received set apart sufficient amount to
pay Jones & Powell, for said ice and as
their money, and the said Jones &
Powell shipped the plaintiff, Durham, Il
car load Of ice, and if the jury believe
from the evidence, that the plaintiff, Dur
ham, received the said ice, under said
agreement, and sold the same, and failed
to set apart the first moneys received
therefor for said Jones s. Powell, and to
pay them for said ice, and if the jury be-
love from, the evidence that at the time
Of said contract with Jones 81 Powell, for
said ice, the plaintiff, Durham, had made
an arrangement with one Sanders, TO put
said ice in his ice house, and being in
debted to said Saunders, had agreed with
him that he could have a certain amount
of said ice to pay his debt and delivered
to said Saunders, such amount
of said ice, and if the
jury believe that either Jones or
Powell had knowledge of these facts and
circumstances, at the time said warrant
was procured, then the defendants had
probable cause to institute said prosecu-