
    STATE v. A. M. GOUGE.
    (Filed 27 November, 1911.)
    1. Indictment — Mutilation of Records — Tax List — Register of Deeds.
    An indictment charging that defendant “did unlawfully, willfully, and corruptly, and with fraudulent intent and purpose, take from the office of the register of deeds . . . the tax books” for a certain year, the books having been deposited in the register’s office as ordered by law, and “did unlawfully, maliciously, willfully, and fraudulently obliterate, injure, and change the said tax book” for the certain year, “a record required to be kept by the register of deeds,” is within the terms of Revisal, 350S.
    2. Same — Tax Book — Record — Indictment — Interpretation of Statutes.
    The tax book of the register of deeds is a book of records required to be kept by the register of deeds, and it falls within the meaning of Revisal, 3508, making it an indictable offense under the conditions therein stated for their obliteration, etc.
    3. Same — Register of Deeds — Clerk to Board County Commissioners —Interchangeable Positions — Interpretation of Statutes.
    The register of deeds is etc officio clerk to the board of county commissioners (Revisal, 2666), and the two positions are not separate offices, but used interchangeably in the statute (Revisal, 5238, 5239, 5240), and it is provided (Revisal, 5237) that the tax book to be made out by the register of deeds “shall remain in the office of” the clerk of the board of commissioners, and Held, a charge of an unlawful, etc., obliteration of the tax books required to be kept by the' register of deeds meets with the requirements in that regard of Revisal, 350S.
    4. Register of Deeds — Copy of Abstract to Auditor — Requirements.
    The register of deeds is not required to keep in his office a copy of the abstract from the tax book which the statute directs him to send to the State Auditor.
    5. Register of Deeds — Tax Books — Township Totals — Mutilation— Indictment — Interpretation of Statutes.
    While the statute does not require the total tax for each township to be put in the tax book or record, of the computation of taxes for a county, it is a customary and convenient practice, and when such has been done, á mutilation or change of the totals on the record falls within the meaning of Revisal, 3508, and is an indictable offense when its provisions have been violated; besides, objections, in this respect, relate to matters of proof and not to the sufficiency of the indictment.
    
      6. Indictment — Tax Books — Register of Deeds — Mutilation—Township Totals — Auditor’s Abstract — Parol Evidence.
    Upon a trial under an indictment of a deputy sheriff for changing the township totals of taxation for fraudulent purposes respecting a settlement thereof, testimony of a witness to the effect that the abstract which he made and sent to the Auditor was a correct copy from the tax list, and that the books now show a mutilation and change of the tax lists as to these township totals, amounting to a certain sum, which the defendant is charged with drawing from the bank of deposit for his own use, is competent, as the abstract sent the Auditor was made from unchanged items and could in no wise be affected by the alteration of the township totals.
    7. Same.
    An abstract made by a witness for the State Auditor from the tax list is but a written declaration of the witness which he at one time made as to the amount of the unaltered totals, and it is not necessary that this abstract be produced under an indictment for violation of Revisal, 3508, for the witness to state the township totals therein, for he may now testify what the total was, the parties being entitled to produce the abstract in corroboration or rebuttal, as the case may be, and in this case the addition of the unaltered items was introduced, from which the jury could ascertain whether the totals were correct or not.
    8. Indictment — Mutilation of Records — Tax Books — Defalcation of Sheriff — Evidence.
    Evidence that a deputy sheriff altered the township totals of taxation taken from the tax book and drew the difference in gold from the bank in order that his defalcation might not be traced to him, is simply that of a circumstance competent for what it is worth, as tending to show illegality and fraud, under indictment for violating the provisions of Revisal, 3508.
    9. Same — Character Witnesses — Cross-examination.
    A deputy sheriff was indicted for unlawfully mutilating the township totals of taxation (under Revisal, 350S) made out by the register of deeds and in his office, in order to conceal his defalcation: Held, competent on cross-examination of defendant’s witness, for him to state that he had threatened the defendant with proceedings before a Superior Court judge before he would show his books or state the amount he had paid over, and it was not objectionable.as an attack on the good Character of the witness by proving specific acts of misconduct.
    
      10. Same.
    The cross-examination of a character witness is not restricted to the matter brought out on the direct examination, and in this case it was held competent for the State on cross-examination to bring out the fact as an incriminating circumstance, that the defendant, indicted under Revisal, 3508, twice refused to show his books to proper authority, or disclose the tax fund he had paid over, until threatened with legal proceedings.
    Beown, J., dissenting; Allen, J., concurring in dissenting opinion.
    Appeal from Long, J., at April Term, 1911, of Mitoi-iell.
    Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Chief Justice Ciarle.
    
    
      Attorney-General Biclcett and Assistant Attorney-General George L. Jones for the State.
    
    
      W. L. Lambert, W. C. Newland, and S. J. Ervin for defendant.
    
   OlaRK, O. J.

Tbe defendant was convicted upon an indictment under Revisal, 3508, for fraudulently mutilating and changing tax books covering certain townships in Mitcbell County. Tbe indictment charged that tbe defendant “did unlawfully, willfully, and corruptly, and with a fraudulent intent and purpose, take from tbe office of tbe register of deeds of tbe said county tbe tax book for tbe year 1908, said tax book having been deposited in said office as ordered by law, and did unlawfully, maliciously, willfully, and fraudulently obliterate, injure, and change tbe said tax book for tbe year 1908, a record required to be kept by tbe register of deeds.”

Tbe indictment comes squarely within tbe terms of tbe statute, and tbe motion to quash was properly denied. Tbe tax list is in a bound volume and is a “book of records'required to be kept by tbe register of deeds.” Tbe register of deeds is ex o fficio clerk of tbe board of county commissioners. Revisal, 2666. Tbe clerk of tbe board of commissioners is not- a separate office, but a part of tbe office of register of deeds. Tbe two offices are used interchangeably in tbe statute. In Revisal, 5238, tbe title says: “Tbe register of deeds can make out tax duplicates.” In tbe same section it is provided that one of tbe copies “shall remain in tbe office of tbe clerk of tbe board of commissioners,” and further on in tbe same section it is said that an allowance shall be made to tbe “register of deeds.” In Revisal, 5239, both tbe terms “register of deeds” and “clerk of tbe board of commissioners” are used. In Revisal, 5240, tbe same interchangeable use of these words occurs.

Tbe defendant is indicted for altering and multilating tbe tax list, and not a copy of tbe abstract which was sent to tbe Auditor. Tbe abstract sent to tbe Auditor is taken from tbe tax list, and a copy of such abstract is not required to be kept.

Tbe defendant made the'further objection that since tbe evidence shows that tbe township totals were changed, tbe indictment is not good, because tbe law does not require the total for each township to be put in tbe record. It is true, the statute does not say in so many words that the total of tbe tax of each township shall be set down by tbe register of deeds, but, being so set down, as is convenient and customary, to mutilate and change those totals is to mutilate and change tbe record, which tbe register of deeds has made in compiling the tax list for tbe county. Besides, this is a matter of proof and not a question of tbe sufficiency of tbe indictment.

Tbe defendant further contends that it was error to permit tbe witness to state that tbe abstract which be made and sent to tbe Auditor was a correct copy from tbe tax list and that tbe books show now that there has been a mutilation and change of tbe tax list as to tbe totals which were recorded from certain townships, amounting in tbe aggregate to about $3,000.

Tbe register of deeds, through bis office force, prepared two copies of tbe tax list, one for bis office and one for tbe office of tbe sheriff. In tbe register’s own copy of tbe tax-list boob tbe township totals appeared, and it was these that tbe defendant was charged with having altered. It was not contended that the general tax items on tbe tax list bad been changed, only tbe township totals. Tbe evidence of tbe witness amounted to nothing more than ,his saying that on a certain day, after tbe .tax lists were made out, be add.ed tbe general items of tbe county taxes and arrived at a certain sum, and thereafter when be compared that sum with the totals of tbe townships as they appeared on the tax list, the county total made about $3,000 more than the sum of the township totals as they appeared after the alteration therein. The abstract sent the Auditor having been made from the unchanged items, could be in no wise affected by" the alteration in the township totals.

The defendant urges that the abstract sent to the Auditor’s office should have been produced and that it was error to permit the witness to testify as to the sum total which was shown by such abstract. But there is no charge that the abstract was in any wise altered by the defendant. The abstract was simply a declaration made by the witness and was of no higher, dignity, as concerns this trial, than his oral testimony as to what amount it showed. A certified copy of such abstract might have been used to corroborate the witness, or might have been used by the defendant to contradict him. But neither was required. The abstract was a written declaration of the witness which he at one time made as to the amount of the unaltered totals, but that did not prevent him from testifying now what the total was. The addition of the unaltered items on the tax-list book, which was before the jury, would show whether he is correct or not, without obtaining the abstract, which was a mere statement made out at some other time as to what the total of the general items of the tax list amounted to.

The other exceptions which were pressed were that the defendant while collecting taxes as deputy sheriff drew from the bank money from the sheriff’s account which he took in gold, and refused to tell the amount of money which had been paid over to the school fund. The charge is that the township totals were mutilated by the defendant to show about $3,000 less than the true amount. It is contended that the motive was to settle by these reduced totals, which thus enabled the defendant to draw out the difference between the true amount collected and the amount shown by the addition of the altered township totals, and that the defendant drew this money in gold, so that it might not be traced. This was simply a circumstance which was competent to go to the jury for what it was worth and tending to show that the act was done “illegally and fraudulently,” as charged.

A witness wbo bad testified as to tbe good character of tbe defendant was permitted to state on cross-examination tbat be bad threatened tbe defendant with Judge Oouncill before be would show bis boobs or state tbe amount be bad paid over. It is true tbat it is not competent on cross-examination to attack evidence as to good character by proving specific acts of misconduct. S. v. Bullard, 100 N. C., 486. But this tbe State did not attempt to do. Tbe witness was put'up by tbe defendant as a character witness, but tbe cross-examination is not restricted to tbat matter and it was competent for tbe State on tbe cross-examination to bring out tbe facts as an incriminating circumstance tbat tbe defendant twice refused to show bis books to proper authority or to disclose tbe amount of tbe tax fund be bad paid over to tbe board of education until tbe witness threatened to appeal to tbe Superior Court judge to force him to do so. Tbe evidence was submitted to tbe jury for that purpose only.

No error.

BbowN, J.,

dissenting: I would not dissent in this case unless I thought a serious error bad been committed. I believe in sustaining convictions of crime in tbe lower courts unless some substantial error has been committed. It may be tbat tbe error which I think has been committed in this case would not have changed tbe result, but I cannot give my approbation to tbe precedent tbe ruling of tbe Court will establish.

Tbe abstract referred to in tbe opinion of tbe Court is as much a record as tbe tax lists. Such record was in existence and well known to tbe register'of deeds and to tbe prosecutor. One was in tbe Auditor’s office and one in tbe Corporation Commission.

Tbe sum totals of tbat abstract was a potent fact in tbe proof. Tbe register of deeds made them out. Tbe correctness of bis recollection of those totals was a most pertinent and important matter. Tbe State bad tbe right under tbe statute to offer copies of tbe originals, duly certified. Such copies are tbe best secondary evidence and far more reliable than tbe memory of tbe witness.

I think they should have been produced on the trial. Kelly v. Craig, 27 N. C., 129. In this case Chief Justice Ruffin says : “It is always a question of law whether the best evidence in the party’s power has been produced, and inferior evidence is not admissible. If in this case the sheriff’s copy of the tax list had been offered, it would have been competent, as there was sufficient proof of the destruction of the original. So, if it had appeared that the sheriff’s copy had also been lost, then the parol evidence might have been given, since the paper of which the contents were proved was certainly lost, whether it was that in the clerk’s office or in the sheriff’s office.”

See, also, the remarks of same great judge in Kello v. Maget, 18 N. C., 425; Nelson v. Whitfield, 82 N. C., 46; 25 Am. and Eng. Ency., 162-167.

Me. Justice AlleN concurs in this dissent.  