Summary
In S. v. Whidbee, 124 N.C. 796, which was an indictment under the same section as in S. v. Torrence, supra, the court quashed the indictment, because the pay check pledged was not then in existence, but was to become due to the pledgor at a future date, hence "not a false representation of an existing fact."
Summary of this case from State v. WilliamsOpinion
(Decided 21 February, 1899.)
False Pretense — The Code, Section 1027.
An indictment for obtaining goods under a false pretense (The Code, sec. 1027) must be founded on a false representation by the defendant of an existing fact.
INDICTMENT for obtaining goods under a false pretense, before Hoke, J., at Fall Term, 1898, of DARE. The indictment is as follows:
Attorney-General for the State.
No counsel contra.
The jurors for the State present on oath, that at and in the above State and county, on or about 12 July, 1897, the defendant, John D. Whidbee, late of the State and county aforesaid, did unlawfully, wilfully and feloniously agree in writing with R. D. Fulcher in the following words and figures, to wit:
HATTERAS, N.C. 12 July, 1897.
This is to certify that I have received of R. D. Fulcher twenty-four dollars in merchandise, the amount of my check for the quarter ending 30 October, 1897, which check I hereby pledge him in payment of same.
Witness: J. E. Whidbee. JOHN D. WHIDBEE.
With intent to defraud said R. D. Fulcher of the value of said merchandise, and the said John D. Whidbee having entered into said agreement as aforesaid, failed to apply said check or any part thereof, or the proceeds of the same in accordance with said agreement, but disposed of same in a manner other than agreed in said paper-writing with intent to defraud said R. D. Fulcher of the value of said (797) merchandise, against the peace and dignity of the State, and contrary to the form of the statute as in such cases made and provided.
WM. J. LEARY, Solicitor.
The defendant moved to quash the bill of indictment for the reason that it does not state an indictable offense.
Motion to quash was allowed. The solicitor excepted, and appealed.
The defendant stands indicted for obtaining goods under a false pretense. On 12 July, 1897, the defendant certified in writing that he had received of Fulcher "twenty-four dollars in merchandise, the amount of my check for the quarter ending 30 October, 1897, which check I hereby pledge in payment of same." He failed to apply said check or the proceeds thereof according to agreement.
The defendant moved to quash the indictment of the ground that it stated no indictable offense, which motion was allowed, and the State Solicitor appealed.
There was no error. The offense charged does not fall within the meaning of The Code, sec. 1027. The fact that the defendant did not have and could not have the check for the quarter, beginning 1 August to 30 October, was plain on the face of the writing, and was or ought to have been known to the prosecutor, and whatever the motive was, it was not a fraudulent representation. Suppose the defendant had certified on 12 July that he would represent the firm of A. Co., (798) of New York, during the same quarter. There would be no false statement of an existing fact, and the prosecutor would see and know it.
AFFIRMED.
Cited: S. v. Torrence, 127 N.C. 554; S. v. Williams, 154 N.C. 804; S. v. McFarland, 180 N.C. 729.