Opinion
12545
December 12, 1928.
Before MANN, J., Clarendon, May, 1927. Affirmed.
T.M. Mouzon was convicted of breach of trust, and he appeals.
The charge of the Court was as follows:
"Mr. Foreman and Gentlemen of the Jury: The defendant, T.M. Mouzon, is charged in this indictment with what is known as breach of trust, with fraudulent intent; three specific charges or counts being set out and enumerated. The first count which you will consider is the one which is marked `second' in the indictment. It charges the defendant, T.M. Mouzon, with committing the offense of breach of trust with fraudulent intent by saying that on the 2d of September, 1926, he being at that time intrusted by the Bank of Manning with the care and custody and keeping of its cash, money, currency, funds, collaterals, and checks, etc., and a cashier's check of the value of $1,080.00, of the property of the Bank of Manning, a banking corporation; that he willfully, unlawfully, and feloniously took the same and appropriated it to his own use, with the intent of cheating and defrauding the Bank of Manning of the sum or of its value.
And the second count which you will consider is the one which is marked 3, and the indictment says that on the 4th of August, last year, which is 1926, he committed a breach of trust with fraudulent intention by appropriating — he being at that time intrusted with the care and keeping and custody of the cash, currency, money, funds, collaterals and checks, etc., and so on, of the Bank of Manning — four drafts in the aggregate of $1,589.18, and that he willfully, unlawfully, and feloniously took the same and appropriated them to his own use, with the intent to cheat and swindle the said bank thereof.
"And the third count which you will consider is the one which is marked 4 in the indictment. It charges that on the 31st of October, 1926, and on divers days before, he willfully and unlawfully committed the offense of breach of trust with fraudulent intention, in that, being intrusted at that time by the Bank of Manning with the care and keeping and custody of its cash, money, currency, funds, collaterals, and checks, etc., to the value of $2,600.45, of the property of the said Bank of Manning, and that he did then and there willfully, unlawfully, and feloniously appropriate collaterals to his own use, with the intention of cheating and defrauding the said Bank of Manning, in that he willfully, unlawfully, and feloniously honored, and caused to be paid and honored, drafts and checks of one P.B. Mouzon with the money of the said Bank of Manning, the said P.B. Mouzon having no funds at the Bank of Manning, etc.
"You will notice, Mr. Foreman and Gentlemen of the Jury, that the first count which was incorporated in the indictment the Court held was too general in its allegations, and did not meet the requirements of the law, in that the crime or offense intended to be charged was not sufficiently adequate; that is, was not sufficiently and adequately charged, and, on motion, it quashed that specification. Therefore, that leaves for your consideration those marked 2, 3, and 4, but we will arbitrarily consider them as 1, 2, and 3; that is, we will arbitrarily consider them in that way for the purpose of discussing them at this time.
"Now, Mr. Foreman and Gentlemen of the Jury, before I begin my remarks with reference to the law in the case, I wish to thank you personally and on behalf of the officials of this Court for your kind and patient attention which you have given this case throughout its entire progress. The Court has seen fit to keep you together and apart from the rest of the world, and he knows that you are glad that the time is approaching with every prospect of a conclusion of this case, but, so far as you and I are concerned, it is, with us, the most critical era of the trial of this case. At present it is with you and me. Heretofore we have had the benefit of the assistance of counsel, able counsel, just as able as could be procured, to enlighten us on various aspects of this case. An able Solicitor has presented to you all the facts that appear to be in the interest of the State, or, that is, all the facts which appeared to be able to be marshaled by the State in its effort to establish the charges laid against this defendant. There is able counsel who has presented to you the facts which he says go to establish the innocence of the defendant, and also to combat the effort on the part of the State to establish his guilt, and also, he says, to show that the State has not proved its case beyond a reasonable doubt. If these gentlemen, Mr. Foreman and Gentlemen of the Jury, have appeared in their zeal to be partisans, they had that right. If they appear to be engaged in a great contest, the ultimate purpose, or the ultimate result, of which may be that they might have a jury say that they were right, don't hold that against them. The State of South Carolina employs its counsel to represent the State, to present its case, and to take care of what it considers its interest. When the State considers that one of its laws has been violated, it thinks so much of the rights of the people, and of the interest of society in general, that it employs one of its attorneys to make it his business to Marshall all the facts that he can bring to his command and to his service, and to bring them into Court and present them to the jury's consideration, that all may be done to the end that the State's interest may be properly taken care of, and it allows one charged with an offense to retain one to come in and to put forth his every effort to the end that he may resist the effort of the State to prove his guilt, to the end that he may be proved innocent, to the end that his interest may be properly taken care of in the premises. And in doing that, I say, these gentlemen may appear sometimes zealous or overzealous; they are not to be held responsible for that; they can afford to do it. But after the testimony is in, and after the arguments have been made, and after the burden has rolled upon your shoulders and mine, that partisanship, the struggle, contest, and the battle of wits and talent is over. There is no provision in law for you and me to take sides. The law says that we are to sit as administrators of absolute justice. You are not allowed to be partisans; you are not allowed to take anybody's part, either of the State of that of the defense. You are arbitrators, unbiased, unprejudiced, and unjustified in veering from that very strict and unpartisan rule. We cannot afford, under the oath that we have taken, to stray from the path of absolute fairness and nonpartisanship. My part now is to give you the law that governs this case. I am going to do that the very best I can. I am going to make it just as clear to you as I can. You are entitled to it, and anything less would be a dereliction on my part. Then, when I have finished, you are to take that law and the evidence in the case, go into your jury room and apply the law to the facts in the case, and write under your verdict what you conceive to be the truth of this case.
"The office of the petit jury and the petit juror I conceive to be the very highest in a Court like this. Why do I say that? Lawyers may make their mistakes, and the Court can take care of it. I may make a mistake, and the Courts can take care of my mistake. Those superior Courts above this one, but, when you make a mistake, there is no Court above you. When you make a mistake on the facts, no Court can take care of your mistake. The office of the petit juror is very high. He is the only man who can say what is the evidence, what is the truth. The law takes that exclusively and entirely away from me, and says that I shall not in any way intimate to you what should be your conclusion of the facts, or what might be my view of the facts. It says, Mr. Foreman and Gentlemen of the Jury, that, when it comes to that, you can get no help from anybody, except from the witnesses on the stand, and from the law as I shall give it to you, which is intended to assist you in properly determining what that testimony is worth. The law calls into its service twelve of its citizens; calls them men — men worthy to be dignified with its highest office; worthy to be intrusted with the welfare of all the citizens of the State; and worthy to sit in judgment with the interest of all the State, when the State and one of its citizens are in conflict. It says it takes a man to do that — a man who can hold his head in an hour of trial and responsibility. A man who is possessed of that kind of reason which has its home in the mind of strong character — built upon that substantial structure known as a `backbone,' so securely fixed that it cannot be shaken or torn from its moorings by the assailing storm of the emotion or passion, or anything which would weaken its proper foundation, and which would affect its proper function.
"Before the State is entitled to a verdict of guilty on these three charges, or either of them, it is incumbent upon the State to prove the guilt of the defendant as to them, or either of them, as you may find, beyond a reasonable doubt.
"Persons brought into Court charged with a crime in this State are presumed to be innocent. That presumption runs throughout the case, until overcome by the evidence of the State and proved guilty beyond a reasonable doubt. A reasonable doubt is the kind of a doubt for which you can give a reason. It is not a whimsical, flimsy, or fanciful doubt, one that you have to go out and search for, but it is the kind of a doubt that voluntarily forms in your mind on the perusal of the evidence in the case. If there is such a doubt in your minds, as long as it lingers there, you can't find the defendant guilty as to the charge to which that doubt pertains, and, if such a doubt pertains to all three counts, you have to find him not guilty on all three. The State is not required to prove all three of these charges in order to find the defendant guilty. In your investigation, you might find that it has made out its case beyond a reasonable doubt as to the one marked No. 2, but which we arbitrarily call No. 1, but that it has not made out its case beyond a reasonable doubt as to No. 2 or 3, then your verdict will be `Guilty as to the second count, not guilty as to three and four.' Or it may be that you may find the defendant guilty on 2 and 3, and not guilty on the fourth. in which case your verdict will be, `Guilty as to the second and third counts, not guilty as to the fourth.' Or it may be that you may find him guilty on 2, 3, and 4, in which case your verdict will be `Guilty.' Or it may be that you may find him guilty on the third count, and not guilty as to the other two, then your verdict would be guilty as to the count upon which the State has made out its case beyond a reasonable doubt, and so forth and so on. Or it may be that you may find him not guilty on all three counts, in which case your verdict will be `Not Guilty.' That will be the form of your verdict.
"The offense with which this defendant is charged is what is known as a statutory offense; that is, it was created by statute. At common law, larceny was an offense. Larceny is made up of several elements. At common law it is defined to be the taking and carrying away the property of another with felonious intent. It was found that, under the practice of the common law, people could take and carry away — that is, they could use or appropriate it to their own use, even though there was no unlawful taking, and it was not an offense at common law. But the statute comes along, and says, even though he is in possession of another's property, goods, moneys, or chattels, if he so used — if all the other elements of larceny were present — that was breach of trust with fraudulent intention. To make it a little clearer to you, I will use the language of the Supreme Court in the case of the State v. Butler, 21 S.C. page 355:
"The object of the breach of trust Act, as we understand it, was not to create any new offense in its nature and essence, but simply to remove the technical difficulty in the way of conviction, suggested above.' And that is this: `Under this general definition, before a party could commit the crime, it was necessary that the property should be in the actual or constructive possession of the owner, or of some one else than the thief. Consequently, it was held at common law that where a party was in the legal custody of the property of another, he could not commit larceny upon it, although he should fraudulently appropriate it to his own use, for the reason that he could not take it from the other, being already in legal possession himself.' Now, the Court goes on further and says: `It is not simply the nonpayment of a debt, but it is the appropriation of the property of another to the use of the accused, with the intent to make it his own, and to destroy the title of the true owner, under circumstances which would make it larceny at common law, except for the fact that he had obtained possession in the first instance in some legal way.'
"This man is charged with all the elements of larceny, except that he is not charged with illegally coming into possession of it. He is charged with having come into legal possession of it, but, after having come into legal possession, he deprived the owner of the title thereof, and it says, with the intent and with the purpose of taking the title out of the bank and putting it in himself; taking the use of it away from the rightful owner, and using it for his own benefit. That is what he is charged with in this case.
"Now, first I charge you that there are two ways in which a crime may be proved; two kinds of evidence by which it may be established, and that is by direct and circumstantial evidence. By direct evidence is meant the kind of evidence one gives of his own knowledge; that is, the witness says, `I saw a certain thing with my own eyes, and I am telling you in Court of what I know.' That is direct evidence. By indirect or circumstantial evidence is meant the proof of some other fact or facts, from which, taken either singly or collectively, the existence of the particular fact in question is to be inferred as a necessary consequence. The law requires that each fact or facts, or each circumstance relied on as tending to show guilt, must be proved to the satisfaction of the jury beyond a reasonable doubt, and any facts or circumstances, if any so proved, must be so proved or so linked together as to point conclusively to the guilt of the accused, and to exclude any other reasonable hypothesis. A crime may be proved by circumstantial evidence, as well as by direct testimony of eyewitnesses, but the facts and circumstances relied on to show guilt must be proved beyond a reasonable doubt, and they must be consistent with each other and with the guilt of the defendant, and inconsistent with any reasonable theory of the defendant's innocence, and must satisfy the jury of the guilt of the defendant beyond a reasonable doubt. You have heard the old illustration. It is like a chain. A chain is no stronger than its weakest link. You say there is a chain of circumstances to which the State must resort to prove its charge in the indictment. You take each separately and independently, and, if they are established beyond a reasonable doubt, and so connected and linked together that there is no other reasonable theory, but that the defendant is guilty, and if they point conclusively to his guilt, and are inconsistent with the defendant's innocence, then the rule has been met. Without that qualification all the circumstances may fall, because, as I said, a chain is no stronger than its weakest link.
"Now, if you find in your investigation of the testimony in this case that it is necessary to resort to circumstantial evidence, take that and apply it to each one of the charges, if necessary. That is for you to determine. You are permitted, Mr. Foreman and Gentlemen of the jury, in applying this rule, to consider the scope of the whole testimony. You are the only ones who can use that rule, because the testimony is yours, and you are the only ones who can apply it, because you are the only ones who are intrusted with saying whether or not it is applicable. Now, then, as I stated, this charge here is what the Supreme Court has said is larceny, except that it does not charge an unlawful coming into possession of the money. What then, constitutes the offense of breach of trust with fraudulent intention? It means that the person must be in possession of some one else's property. It means that he must take it and use it, so that it will inure to his benefit, and that it has the intent when it so inured to his benefit, and that intent is predicated upon the purpose of taking it from the party who is entitled to it, and transferring the title or use thereof to himself. Now, intent is a thing the law looks upon as not always easily proved. If intent had to be established by a substantive declaration — I mean of the person charged with having that intent — the law takes notice of the fact that it might find itself unduly handicapped. Therefore the law says that a person is always presumed to understand the natural, necessary, and even probable consequences of the act which he does. Thus the law presumes the intent upon the doing of the unlawful act: though this presumption is rebuttable; it may be overcome. Therefore, you see, Mr. Foreman and gentlemen of the jury, what is meant by proof of intent, and the recourse that the law gives you in seeking to establish it either finds it present or finds it absent. It puts it upon you first to determine whether or not the person is charged with doing a thing out of which a felonious intent may be reasonably inferred. Then if you determine that that thing has been done, then it puts duty upon you to determine whether or not the intent was present when it was done. Now, did this defendant commit the offense set out here in this indictment called item No. 2? Did he take this check of $1,080 and appropriate it to his use, and use it in such a way that he was benefited by it? Then, if he did, go ahead and ascertain what his intent was in so doing. Was it his intent to deprive the rightful owner thereof, and change the title to himself? If the state has proved that beyond a reasonable doubt, then he is guilty of that. And apply that same rule to the others. The draft charge mentioned in No. 3. Did he use those drafts, or the value thereof, in such a way as to take the title of their value out of the bank and place it in him, and in such a way that its transfer or possession resulted in his personal benefit? Was there a personal benefit coming back to him from such an act? If there was, did he do it with the intent that that should be the thing, that should be the result? If so, he is guilty. If the state has made out this charge beyond a reasonable doubt. If not, he is not guilty. Now, as to the fourth count. Did he permit or did he honor checks of Mr. P.B. Mouzon in such a way that the money went out from the bank, and the title passed from the bank to some one else, either to himself directly or indirectly, or fixed it so that ultimately it would come back to him in such a way that would be an appropriation to his own use? If the state has proved that beyond a reasonable doubt, then he is guilty; if not, he is not.
"Now, the defendant has taken advantage of the privilege allowed by law of introducing his character in evidence. Every person charged with crime has a right to introduce and take advantage of his good character, that character having reference to the nature of the charge against him, and, if he does, the jury has a right to take such testimony into consideration as to whether or not the charge has been proved beyond a reasonable doubt. It does not mean that, just because a person has a good character, he cannot commit an offense, but it means that, if, in the consideration of that character, or the testimony relating thereto, independently or with all the other testimony in the case, that raises a reasonable doubt in your minds as to his guilt, then you find him not guilty.
"The counsel for the defendant has asked me to charge you certain propositions of law. The first that he asks me to charge is this:
"`1. In this case the defendant is not charged with larceny or what is commonly called stealing, but he is charged with a breach of trust with fraudulent intent. Before you can lawfully convict a person of this offense, the state must prove, not only that the defendant collected or had in his possession money belonging to the bank and failed to turn it over or account for it but, in addition to this, the state must prove beyond a reasonable doubt that the defendant appropriated such money to his own use with a fraudulent purpose to destroy the right of the true owner.' I charge you that. I think I have explained fully the difference between the old common-law charge of larceny and this. What I have tried to convey to you is that this does not contain the element of taking into possession unlawfully.
"`2. In other words, Gentlemen, the State must prove beyond a reasonable doubt that a fraudulent purpose existed in the mind of the defendant at the time he appropriated any money of the bank, if the State has proved that he appropriated any at all.' I charge you that.
"`3. Failure of a person to pay over or account for money intrusted to him, is not in itself sufficient to constitute the offense of breach of trust, and if you should find that the State has proved all of this in the present case, but has failed to prove beyond a reasonable doubt that the defendant has the fraudulent purpose to destroy the right of the true owner, then it is your duty under your oaths to acquit him.' I charge you that.
"`4. Even if you should find that the State has proved beyond a reasonable doubt that money of the bank as charged has been appropriated, and further that the defendant is the one who appropriated it; still, if you have a reasonable doubt as to the purpose of the defendant whether it was fraudulent or not, then, gentlemen, it is your sworn duty to acquit him.' I charge you that; I charge you that again.
"The fifth, as modified, reads as follows:
"`5. The defendant is not charged in this case with losing the money of the bank by allowing overdrafts or by suffering losses by careless banking methods, nor by failing to account for and turn over funds intrusted to his care. Even if he should be proved to have done all these things, that would be no proof that he is guilty of breach of trust with fraudulent intent, unless such acts were supported by other proof of facts sufficient to prove fraudulent intent.' That, as modified, I charge you.
"`6. Whether or not you agree to the wisdom of the law in throwing these safeguards about a man charged with a crime, you are bound by your oaths to take the law as I give it to you, and apply the facts as you find them, to this law, and render your verdict accordingly.' I charge you that.
"Mr. Epps: I ask your Honor to number the others, 7, 8, and 9 — I haven't numbered them — so that they will appear on the record, please.
"The Court: Now, I have somewhat modified No. 7, and I read it as modified:
"`7. The second count in the indictment charges the defendant with converting to his own use, a certain cashier's check for one thousand eighty dollars. Unless the State has proved beyond a reasonable doubt that the defendant did actually convert this check to his own use, you cannot further consider this count. If you find that the Bank of Manning got credit with some other bank for this check, and that there is no evidence that he used the same in a way that enabled him to appropriate the same or its value to his use, in a fraudulent way or with a fraudulent purpose, then you must acquit the defendant of this count. He is not charged with poor banking methods, nor with failure to handle this check as you or some one else would have handled it, but he is charged with a breach of trust in converting it to his own use with the fraudulent purpose of depriving the bank of the same.' I think that is in conformity with the law which I have given you.
"`8. The third count in the indictment charges the defendant with a breach of trust in converting to his own use four certain drafts, which we might designate in referring to them as the Shaver drafts. Unless the State has proved beyond a reasonable doubt that the defendant did actually convert these drafts to his own use, you cannot further consider this count. The State charges the defendant with getting the money for these drafts for himself, and the State must prove this as a fact beyond a reasonable doubt, before you go any further to consider the question of fraudulent intent.' I think, in perhaps a little different language, I have charged you that, and I charge you as written, with the reminder that I charged you that if he took the possession of this — the amount of these, drafts, or the proceeds thereof, with fraudulent intent, taking title to himself and out of the bank, and if he appropriated it to his use, or it inured to his use, by intent, directly or indirectly, then he is guilty, otherwise not.
"`9. The fourth count in the indictment charges the defendant with breach of trust with fraudulent intent in letting one P.B. Mouzon overdraw his account in blank dollars.' That makes no difference. `I charge you that there is no law in this State against allowing a person to overdraw his account.' I charge you that.
"As I have stated to you, you are the judges of all the facts in the case. You are the judges of the credibility of the witnesses, and, in arriving at the credibility of the witnesses, you are permitted to take into consideration their apparent age, intelligence, their bias, prejudice, or interest, if any, and anything else that will assist you in properly weighing their testimony. What you are seeking for, Mr. Foreman and gentlemen of the jury, is the truth. Now, what is the truth of this situation? Did this man use this $1,080 check as set forth in this indictment? Has the State shown he did as it says he did beyond a reasonable doubt? And did he use the other items set forth in counts 3 and 4? That is what you are seeking for. What does the testimony show? Where is the truth of this situation, to the point that there is no reasonable doubt in your mind? Where is it?
"If the State has made out its case against the defendant beyond a reasonable doubt as to the three charges, or as to either of them, it becomes, not your privilege, but your duty, to convict him. If it has not, you have no privilege in the matter; you have only a duty to perform. When you have gone into that jury room and applied the law as I have given it to you to these facts in the case, and have thrown the searchlight of your conscience and your intelligence upon this testimony, and have said that this conclusion that I have reached is the conclusion of an honest, fearless, truthful, conscientious man, done in the fear of God, in the light of the information which has been given me, that is the verdict that the law approves, and when you have written that, the law takes from your shoulders the consequences, and the jury is not held to answer for the consequences of its verdict. All the jury has to do is to render a true verdict according to the law and the evidence, by the help of his God.
"Now, as I stated, you can find one of several verdicts; either guilty of — if the State has made out its case beyond a reasonable doubt as to all, your verdict will be `Guilty.' Or, if the State has made out its case beyond a reasonable doubt as to some and not as to some, your verdict will be `Guilty as to the count or counts upon which the State has made out its case,' and `Not guilty as to the others.' If the state has not made out its case as to any, your verdict will be `Not guilty.'
"Anything else, Gentlemen?
"Mr. Epps: Your Honor, in view of the understanding we had when the jury was out, I would like to ask your Honor to charge the jury as to the fourth count in the indictment that, unless they find beyond a reasonable doubt that a part of the proceeds of those overdrafts went to the defendant, or to an enterprise in which he was financially interested, then they couldn't convict him on that count.
"The Court: It has been my purpose, Mr. Foreman and Gentlemen, to charge you just that, and, if I haven't, you have heard the language of counsel, and it is perfectly satisfactory to me, and I charge you that. Anything else, Mr. Epps?
"Mr. Epps: No, sir.
"The Court: Anything else, Mr. Solicitor?
"The Solicitor: No, sir.
"The Court: Take the record, gentlemen, and retire."
(The jury after some time returns for further information.)
"The Court: What is it, Mr. Foreman?
"The Foreman: Some of us couldn't understand whether these checks were considered overdrafts. We want a little more information on the last count.
"The Court: How is that?
"The Foreman: We want a little information on the last count; we couldn't tell whether those checks were considered overdrafts or not.
"The Court: Let me see that indictment. Now, you see, the indictment uses this language: With reference to the checks mentioned in the fourth count. That is what you have reference to?
"The Foreman: Yes, sir.
"The Court: It states that Mouzon, being in the custody of the moneys, etc., and so on, of the bank, feloniously took and appropriated said moneys, funds, etc., to his use and purpose with the intention of defrauding the Bank of Manning, etc., with intent as aforesaid, unlawfully did pay, honor, or cause to be paid and honored, a certain check, draft, or order, or checks, drafts, or orders, of one P.B. Mouzon on the Bank of Manning, as a aforesaid, he, the said P.B. Mouzon, having no funds there sufficient to meet the same, to the great damage of the Bank of Manning. This is the charge in the indictment. He is charged with honoring a draft or check or checks of one P.B. Mouzon, and of taking the proceeds or value of those checks and appropriating them to his own use. This is the charge in that.
"Now, the other matter to which you referred, as I catch your question. That is a question of fact, with which I am not — as to which I am not permitted to give you any instructions. Now does that help you any?
"The Foreman: I think so.
"The Court: While you are out, Mr. Foreman, is there any question you would like to ask the Court as to the law of the case? I never get impatient with a jury who are trying to get all the light they can on the law, and am always willing and anxious to assist any jury to a proper understanding of the law. I can't help you on the facts. If there is anything on the law —
"Juror: Was those checks an overdraft, with no account to cover it?
"The Court: I couldn't tell you that; that is a question of fact for you to determine. You are the only one who can answer that question."
The order denying a new trial was as follows:
"This matter comes before me at this time on a motion for a new trial on the ground of after-discovered evidence.
"Defendant was tried at the spring term of court for Clarendon County, and convicted on a charge of breach of trust with fraudulent intention.
"Within due time notice of the present motion was given and argument had before me at chambers at Sumter, defendant being represented by his counsel, Mr. R.D. Epps, and the state by Solicitor Frank A. McLeod.
"The single ground on which the motion is based is that the foreman of the jury, A.S. Rawlinson, is a half brother to C.R. Rawlinson, the party swearing out the arrest warrant, of which circumstances the defendant says he was not advised at the time of the trial, and he says that his case was prejudiced thereby.
"That the two Rawlinsons are brothers of the half blood is not disputed.
"The facts, as appears from the affidavits submitted at the hearing, are:
"A.S. Rawlinson, the foreman of the jury, lives at Davis Station, about ten miles from the town of Manning, while C.R. Rawlinson lives at Manning. A.S. Rawlinson, at the time of the trial, did not know that his half brother had sworn out the arrest warrant, and had never discussed the case with him. C.R. Rawlinson, acting as deputy sheriff and in line of duty, on request, subscribed to the arrest warrant, and had no further interest in the matter. He did not testify at the trial.
"Neither the defendant nor his attorney knew of the relationship of the two Rawlinsons, and the defendant says he did not even know that C.R. Rawlinson swore out the arrest warrant.
"Defendant, by his showing, has not impressed me. In the first place, I do not think he exercised that degree of diligence required of him by the law. While the record does not disclose it, yet it is a matter coming to the knowledge of the Court during the trial of the case that the defendant is a resident of the town of Manning, living within a few minutes' walk of the courthouse. He is a man of a very high degree of intelligence, the kind of man that the law will hold responsible to a knowledge of its provisions. He knew that the records in the case were within easy reach of him, or his attorney, for several months, and that he would experience no trouble in ascertaining the name of the party swearing out the warrant, nor in ascertaining the relationship of parties interested to the jurors. And, furthermore, this inquiry was made of the jurors in open court before the jury was empaneled. With every means at hand of ascertaining such facts as are known to exist, and making no move whatsoever to make such discovery, I hold that he was inexcusably negligent and not entitled to the indulgence of the Court.
A.S. Rawlinson, the foreman of the jury, is a man of apparently 60 years or more of age. He is the kind of man that impresses upon a glance. Of splendid physique, fine, open countenance, marked with a serious but kindly mien, my choice quickly fell upon him as the foreman of a jury charged with a heavy responsibility. His affidavit impresses me.
"The statement of Mr. Epps is accepted at full value. But the negligence of the defendant, in the circumstances, must be charged to Mr. Epps, diligent as he was, and ably and skillfully as he conducted the trial.
"The showing on the part of the defendant is entirely insufficient, while the showing of the State is conclusive.
"It is therefore ordered that the motion for a new trial be, and is hereby, overruled."
The exceptions were as follows:
"I. His Honor erred, it is respectfully submitted, in refusing to admit in evidence the checks which represented an overdraft by a third party of something over $700, said check being marked for identification as `D.R.S.' The error being that his Honor should have admitted the same in evidence, inasmuch as the defendant was charged with permitting an overdraft by P.B. Mouzon with a fraudulent intent, and it was therefore competent to introduce evidence tending to show the custom of permitting an overdraft at the bank in question.
"II. His Honor erred, it is respectfully submitted, in refusing to direct a verdict on the third ground made by the defendant, as follows: `As to the fourth count, the State has failed to show that the defendant committed a breach of trust with fraudulent intent with regard to the overdraft alluded to,' the error being that the State had in fact and in law failed to show a breach of trust with regard to this account, failed to show any facts constituting a breach of trust, and failed to show that the defendant got for himself any part of the proceeds of the overdraft charged.
"III. His Honor erred, it is respectfully submitted, in refusing a motion for a directer verdict on the fourth ground made, which was as follows: `As to the fourth count, even if the defendant allowed the said P.B. Mouzon to overdraw his account, this does not constitute the offense of breach of trust.' Inasmuch as the specifications under the fourth count do not charge a fraudulent intention to deprive the bank of the funds, but only specify the permission of an overdraft, the same did not charge the offense of breach of trust, and, even if the State had proved the specifications of this count, this would not be sufficient to constitute an offense.
"IV. His Honor erred, it is respectfully submitted, in refusing a motion for a directed verdict on the fourth ground, which was as follows: `As to the fourth count, even if the defendant allowed the said P.B. Mouzon to overdraw his account, this does not constitute the offense of breach of trust.' His Honor charged the jury as follows: `The fourth count in the indictment charges the defendant with breach of trust with fraudulent intent in letting one P.B. Mouzon overdraw his account in ____ dollars. That makes no difference. I charge you that there is no law in this State against allowing a person to overdraw his account.' After his Honor charged the jury to this effect, this became the law of the case, and he therefore should have directed a verdict as to the fourth count.
"V. His Honor erred, it is respectfully submitted, in refusing the motion for a directed verdict on the fifth ground urged, which was as follows: `As to the fourth count, there is not sufficient proof that the defendant had any purpose to fraudulently deprive the bank of anything.' The error being that there was in fact and in law no sufficient proof, and his Honor should have granted a motion on this ground.
"VI. A new trial should be granted because the jury could not lawfully convict the defendant after his Honor charged the ninth request of the defendant, which was as follows: `The fourth count in the indictment charges the defendant with breach of trust with fraudulent intent in letting one P.B. Mouzon overdraw his account ____ dollars. I charge you that there is no law in this State against allowing a person to overdraw his account.' After his Honor had thus construed the fourth count in the indictment and had charged the jury that there was no law against this charge, the jury could not lawfully convict the defendant under this count.
"VII. There was no evidence of fraudulent purpose on the part of the defendant at the time he permitted the overdraft, and therefore the conviction of the defendant was illegal.
"VIII. There was no evidence, and no sufficient evidence, that the defendant obtained any benefit from the overdrafts.
"IX. His Honor erred, it is respectfully submitted, in charging the jury as follows: `What, then, constitutes the offense of breach of trust with fraudulent intention? It means that the person must be in possession of some one else's property. It means that he must take it and use it so that it will inure to his benefit, and that he has the intent when it so inures to his benefit, and that intent is predicated upon the purpose of taking it from the party who is entitled to it, and transferring the title or use thereof to himself.' The error being that this charge omitted the necessary element of intention to defraud.
"X. His Honor erred, it is respectfully submitted, in charging the jury as follows: `The law says that a person is always presumed to understand the natural and necessary and even probable consequences of the act which he does. Thus the law presumes the intent upon the doing of the unlawful act; though this presumption is rebuttable it may be overcome. Therefore, you see, Mr. Foreman, and Gentlemen of the jury, what is meant by proof of intent, and the recourse that the law gives you in seeking to establish it, either finds it present or finds it absent.' The errors being: (a) That in a charge of breach of trust with fraudulent intent the law does not always presume that a person understands the natural necessity and even probable consequences of the act which he does. This is a question for the determination of the jury. (b) In a charge of this nature, where fraudulent intent is a necessary element of the offense, the law does not presume the fraudulent intent upon the doing of the act. The act itself does not become unlawful until it is accompanied by a fraudulent intent.
"XI. His Honor erred, it is respectfully submitted, in charging the jury as follows: `Did he permit or did he honor checks of Mr. P.B. Mouzon in such a way that the money went out from the bank, and title passed from the bank to some one else, either to himself directly or indirectly, or fixed it so that ultimately it would come back to him in such a way that it would be an appropriation to his own use? If the state has proved that beyond a reasonable doubt, then he is guilty.' The error being: (a) It would not constitute the offense charged, if the title passed from the bank to some one other than the defendant. (b) It would not constitute the offense charged, if the title passed from the bank to the defendant indirectly. (c) It would not constitute the offense, if the transaction was such that the title would ultimately come back to the defendant. (d) This charge did not include the necessary element of fraudulent intention, and only tended to confuse the minds of the jury. (e) This constituted a charge upon the facts of the case.
"XII. His Honor having charged the jury that, unless they found beyond a reasonable doubt that a part of the proceeds of the overdrafts went to the defendant or to an enterprise in which he was financially interested, they could not convict him on the fourth count, and there being no evidence in the case sufficient to show that a part of the proceeds of the overdrafts did in fact go to the defendant or to an enterprise in which he was financially interested, his conviction should not be allowed to stand.
"XIII. When the jury returned for further instructions, and asked the trial judge whether or not the checks were considered overdrafts, his Honor should have charged the jury that the checks should be considered as overdrafts, that they were charged to be overdrafts in the indictment itself.
"XIV. When the jury returned to the courtroom for further instructions, and a juror asked: `Was those checks an overdraft with no account to cover it?' and the Court answered: `I couldn't tell you that; that is a question of fact for you to determine. You are the only one who could answer that question,' his Honor should have told the jury that this count specifically charged the defendant with `willfully, unlawfully, and feloniously honoring and causing to be paid and honored, drafts and checks of one P.B. Mouzon with the money of the said bank, the said P.B. Mouzon having no funds at the Bank of Manning.'
"XV. His Honor erred, it is respectfully submitted, in not granting a new trial when it was made to appear that the foreman of the jury was a half brother to the man who swore out the indictment."
Messrs. Epps. Levy, for appellant, cite: "Breach of trust with fraudulent intentions:" 7 C.J., 800. As to proof of intent: 64 N.W., 51; 19 S.W. 980; 21 S.C. 353; 107 S.C. 179.
Solicitor Frank A. McLeod, for respondent cites: As to intent: 98 U.S. 145; 31 S.C. 345. Exclusive power in court to determine whether a juror is indifferent: 120 S.C. 537; 34 S.C. 34; 122 S.C. 54; 125 S.C. 288.
December 12, 1928. The opinion of the Court was delivered by
The defendant appellant, T.M. Mouzon, was indicted on four counts charging breach of trust with regard to the funds of the Bank of Manning, located at Manning, S.C. The case came on for trial before his Honor, Judge M.M. Mann, and a jury, at the spring term, 1927, of the Court of General Sessions for Clarendon County, resulting in a conviction of the defendant on the fourth count in the indictment. Whereupon the defendant was duly sentenced by the Court to hard labor for a term of years; the number of years not being stated in the transcript record. Thereafter a motion for a new trial was made, which motion was overruled by the trial Judge. From the sentence imposed and from the order overruling the motion for a new trial, the defendant has appealed to this Court pursuant to notice duly given.
The first count in the indictment charged the defendant with breach of trust of moneys, etc., of the bank in question in the sum of $52,000. On motion of the defendant, the trial Judge quashed this count, the grounds for which do not appear in the record. The second count charged the defendant with breach of trust with regard to a cashier's check of the value of $10,080, upon which count a verdict of not guilty was returned. The third count charged the defendant with breach of trust pertaining to three drafts aggregating $1,589.18, upon which a verdict of not guilty was also returned. The fourth count upon which the defendant was convicted was as follows:
"And the jurors aforesaid, upon their oath aforesaid, do further present that the said T.M. Mouzon, on the 21st day of October, in the year of our Lord one thousand nine hundred and twenty-six and divers days before, with force and arms at Manning, in the County of Clarendon and State aforesaid, did willfully and unlawfully commit a Breach of Trust with a fraudulent intention, that is to say, he, the said T.M. Mouzon, then and there being intrusted by the Bank of Manning, a banking corporation, with the care, keeping and custody of its cash, money, currency, funds, collaterals, checks and credits of the value of Twenty-six Hundred and Sixty-six and 45/100 Dollars of the property of the said Bank of Manning, a banking corporation, then and there did willfully and unlawfully and feloniously take and appropriate the said cash, money, currency, funds, checks, credits and collaterals to his own use and purposes, with the intention of cheating and defrauding the said Bank of Manning, a banking corporation, of the same, in that he did then add there, with the intent aforesaid unlawfully pay, honor, or cause to be paid and honored, a certain check, draft or order of checks, drafts or orders, of one P.B. Mouzon, on the Bank of Manning aforesaid, he, the said P.B. Mouzon having no funds there sufficient to pay the same, to the great damage of it, the said Bank of Manning, a banking corporation, against the form of the statute in such case made and provided, and against the peace and dignity of the State." In his appeal to the Court, appellant presents fifteen exceptions, which will be incorporated in the report of the case.
The first exception imputes error to his Honor, the presiding Judge, in refusing to admit in evidence checks which represented an overdraft by a third party, in the sum of about $700, it being contended by appellant that, since he was charged with permitting an overdraft by P.B. Mouzon with a fraudulent intent, it was therefore competent to introduce evidence tending to show the custom of permitting overdrafts at the bank in question, and contends that he was prejudiced by the Judge's ruling as to the same. We do not agree with this contention. His Honor permitted the defendant to introduce evidence tending to show that many parties had been permitted to overdraw their accounts, and that an overdraft for one person, in the sum of $715, had been carried since 1925, and was conceded to be worthless. The fact that overdrafts had been commonly allowed could not be said to be in dispute, but apparently admitted. Therefore the introduction in evidence of the paid checks as to the $715 item could have been of no help to the defendant, and if admitted would have been cumulative even if competent, and in no sense, according to our view, can it be successfully contended that his Honor's ruling in refusing the introduction of the checks was prejudicial to the rights of the defendant.
Exceptions 2, 5, and 7 raise the question as to whether or not there was sufficient evidence to go to the jury on the question of breach of trust with fraudulent intent with reference to the overdrafts alluded to in the fourth count. A careful examination of the testimony convinces us that this question must be answered against the appellant's contention. Under our view, there was ample testimony to warrant the presiding Judge in refusing the motion for direction of a verdict and in submitting this issue to the jury.
Under the third exception, error is imputed to his Honor, the presiding Judge, in refusing to direct a verdict for the defendant on the ground that the fourth count in the indictment, the count on which the defendant was convicted, did not charge a fraudulent intention. An examination of the indictment convinces us that the same was sufficient.
Under exception 4, it is contended by appellant that his Honor erred in refusing to direct a verdict for the defendant upon the ground that "as to the fourth count, even if the defendant allowed the said P.B. Mouzon to overdraw his account, this does not constitute the offense of breach of trust," it being contended that the sentence should be reversed, in view of the fact that his Honor charged the jury as follows: "The fourth count in the indictment charges the defendant with breach of trust with fraudulent intention in letting one P.B. Mouzon overdraw his account ____ dollars. I charge you that there is no law in this State against allowing a person to overdraw his account."
In presenting this question, the appellant seems to lose sight of the fact that it is the contention of the State that the payment of the drafts, checks, etc., of P.B. Mouzon, when P.B. Mouzon had no funds in the bank, was a method devised and used by the appellant to procure funds from the bank for his own use, and that the funds thus procured were devoted and appropriated to his (appellant's) own use and purposes, with the intention of cheating and defrauding the said bank, and this contention accords with the offense charged in the indictment. We, therefore, do not think the position of appellant tenable.
Under Exceptions 9, 10, 11, 12, 13, and 14, error is imputed to his Honor, the presiding Judge, with reference to his charge to the jury, and in appellant's brief emphasis is placed upon the error charged under the tenth exception, which exception is as follows:
"His Honor erred, it is respectfully submitted, in charging the jury as follows: "The law says that a person is always presumed to understand the natural necessary and even probable consequences of the act which he does. Thus the law presumes the intent upon the doing of the unlawful act; though this presumption is rebuttable it may be overcome. Therefore, you see, Mr. Foreman and Gentlemen of the Jury, what is meant by proof of intent and the recourse that the law gives you in seeking to establish it, either finds it present or finds it absent.' The errors being: (a) That in a charge of breach of trust with fraudulent intent the law does not always presume that a person understands the natural necessity and even probable consequence of the act which he does. This is a question for the determination of the jury. (b) In a charge of this nature where fraudulent intent is a necessary element of the offense, the law does not presume the fraudulent intent upon the doing of the act. The act itself does not become unlawful until it is accompanied by a fraudulent intent."
As contended by appellant, fraudulent intent is a necessary element in the crime charged, and cannot be presumed, but is an issue for the determination of the jury from all of the testimony in the case. However, while we think his Honor was in error in the use of the language attributed to him, quoted under this exception, when the charge is considered as a whole, especially in connection with the requests of the defendant which his Honor charged, we do not think the jury was misled or the defendant prejudiced. The defendant's requests on this point which his Honor charged at the conclusion of his general charge were as follows:
"`In this case the defendant is not charged with larceny or what is commonly called stealing, but he is charged with a breach of trust with fraudulent intent. Before you can lawfully convict a person of this offense, the State must prove, not only that the defendant collected or had in his possession money belonging to the bank and failed to turn it over or account for it, but, in addition to this, the State must prove beyond a reasonable doubt that the defendant appropriated such money to his own use with a fraudulent purpose to destroy the right of the true owner.' I charge you that. I think I have explained fully the difference between the old common law charge of larceny and this. What I have tried to convey to you is that this does not contain the element of taking into possession unlawfully."
"`In other words, Gentlemen, the State must prove beyond a reasonable doubt that a fraudulent purpose existed in the mind of the defendant at the time he appropriated any money of the bank, if the State has proved that he appropriated any at all.' I charge you that."
"`Failure of a person to pay over or account for money entrusted to him, is not in itself sufficient to constitute the offense of breach of trust, and if you should find that the State has proved all of this in the present case, but has failed to prove beyond a reasonable doubt that the defendant had the fraudulent purpose to destroy the right of the true owner, then it is your duty under your oaths to acquit him.' I charge you that."
"`Even if you should find that the State has proved beyond a reasonable doubt that money of the bank as charged has been appropriated, and further that the defendant is the one who appropriated it; still, if you have a reasonable doubt as to the purpose of the defendant whether it was fraudulent or not, then, Gentlemen, it is your sworn duty to acquit him.' I charge you that; I charge you that again."
The fifth, as modified, reads as follows:
"`The defendant is not charged in this case with losing the money of the bank by allowing overdrafts or by suffering losses by careless banking methods, nor by failing to account for and turn over funds entrusted to his care. Even if he should be proved to have done all these things, that would be no proof that he is guilty of breach of trust with fraudulent intent, unless such acts were supported by other proof of facts sufficient to prove fraudulent intent.' That, as modified, I charge you."
"`The fourth count in the indictment charges the defendant with breach of trust with fraudulent intent in letting one P.B. Mouzon overdraw his account in blank dollars.' That makes no difference. `I charge you that there is no law in this State against allowing a person to overdraw his account.' I charge you that."
Having charged these requests of the defendant at the close of his general charge, it cannot be successfully contended that the jury was not fully enlightened as to their duty. Furthermore, after charging these requests, his Honor asked counsel for defendant if there was anything else. Whereupon counsel for defendant replied that there was not, and the record was then handed to the jury. We think that the exceptions should be overruled.
The other exceptions to the charge, in our opinion, are not well taken, and should also be overruled.
Exceptions 7, 8, and 9, which charge that his Honor committed error in refusing a new trial, in our opinion cannot be sustained, for the reason that the record amply supports the verdict.
In the fifteenth exception, it is alleged that his Honor, the trial Judge, erred in refusing to order a new trial "when it was made to appear that the Foreman of the jury was a half brother to the man who swore out the indictment." This motion for a new trial was made after sentence was imposed. The facts upon which the motion was heard are stated in the order issued by his Honor refusing the motion, and, for the reason assigned by his Honor in said order, which will be reported with the case, it is our opinion that the motion was properly refused.
The exceptions are overruled, and it is the judgment of this Court that the judgment of the Circuit Court be, and is hereby, affirmed.
MESSRS. JUSTICE COTHRAN, BLEASE, and STABLER concur.
MR. CHIEF JUSTICE WATTS did not participate.