The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-11-04
{. {. NJ DONALD
GETS NEW TRIAL
Court Holds Judge PEBBLES
Erred in His Charge.
THE OPINION. BY WALKER
Court Erred in Not Giving Instructions Asked
by Defendant, Also in Charging He Had
Failed TO Rebuff Presumption of
Fraudulent Intent.
Fraudulent Intent.

The Supreme Court yesterday granted
c. c. Mcdonald new trial on the ground
that the court below erred in charging
the jury.
1t will be remembered that Mr.. Melon
I'D was tried here before Judge R. b.
PEBBLES last July on the charge of embez7
cling funds belonging to the Supreme
Lodge of knights of Honor, and was con-
victed upon the question of intent to de-
fraud the Supreme Lodge.
An appeal was at once taken to the Su-
preme Court, and the case was argued at
the August term by Messrs. Womack and
HAYES and Douglass and Simms for the
defendant. and Attorney General Gi,mer
for the State.
The opinion was handed down yesterday.
1t is by Associate Justice Platt D. Wal
ker. The following extract embodies the
finding of the court:
"By consent of the State and the de-
PENDANT certain facts were agreed upon
for the purpose of being embodied in a
special verdict They were to the effect
that defendant had been irregularly APP
pointed Financial Reporter for Oak City
Lodge in 1895 and assumed the duties of
said office and acted as Reporter until
June 1901 Defendant collected all as
sessments from the members of the said
lodge and RENTED them to the Grand
Lodge until May 1900. In April 1900 he
collected the assessments and deposited
them to his individual credit in a bank in
Raleigh and drew the money out for his
personal use. the amount so drawn out
being about $1,000. He paid nothing to
the Supreme Lodge after April 1900. In
July 1901, with money borrowed from
another bank in the said city, he paid back
to the members of Oak City Lodge the
amount of the assessments collected by
him. When asked why he did not send
the assessments to the Supreme Lodge.
the defendant replied, that he did not re-
nit them because he got in a position
that he could not do So There were other
facts agreed upon and stated in the special
verdict. but it is not necessary to set them
out, as in the view we take of the case,
those already stated are sufficient to pre-
sent the point upon which our decision
must turn.
There was one disputed question sub
mitted to the jury with the understanding
that the finding thereon should be incor-
porated with the other facts, and the facts
so agreed upon and the said finding of the
Jury upon the issue submitted to them
should constitute a special verdict. That
disputed question was: Whether the de-
PENDANT appropriated the amount of the
assessments collected by him with the in
tent to defraud the Supreme Lodge. The
jury found that he did, and the court be
ing of opinion that upon the special YER
dict as thus rendered by the jury the de-
PENDANT was guilty, the verdict was so
entered and judgment rendered thereon,
from which the appeal was taken.
Upon the question of intent the de-
PENDANT requested the court to give the
following instructions: l. That the felOn-
ious intent is an essential element of en-
bezzlement and must be shown by the
State beyond a reasonable doubt, and uns
less the State has so shown the jury will
find the defendant not guilty. 2. That the
intent with which the offense was COM
mitted is for the jury and not for the
court.
These instructions were refused. and the
court charged the jury That there was an
appropriation of the money by the defend
ant to his own use, and that the law raised
the presumption, as matter of fact, that
it was done with fraudulent intent and
put the burden upon the defendant to re-
but that presumption. that the defendant
might have gone upon the witness stand
and said he had no such intent, and then
It would have been for the jury to say
whether they believed his statement or
not: but that the defendant had intro
duced no evidence and hence he had failed
to rebut the presumption before mention
ed. and if the jury believed the evidence
they should answer yes to the issue
Eve think the court erred in not Civ
ing the instructions asked by defendant
and also in charging the jury that the de-
PENDANT had introduced no evidence and
hence he had failed to rebut the presump-
ton of fraudulent intent raised by the
law from the act of conversion of the
fnuds. and that if the jury believed the
evidence they should answer the first IS
sue yes 1t is admitted in the record
that at the time the defendant agreed to
the other facts in the special verdict his
counsel stated that he did not waive the
full benefit of the prayer for Instructions
above mentioned, and that he would insist
on all of his legal rights as to the special
issue submitted. and the rights of the de-
fendant were accordingly reserved
An.xL;. u.;.porL nov colehra fe n