Opinion
(Decided 28 November, 1899.)
Indictment — False Pretenses — Intent to Defraud.
1. Section 1025 of The Code renders it unnecessary to charge an intent to defraud any particular person; it will be sufficient to prove that the act was done with intent to defraud.
2. Nor is it necessary to allege any ownership of the chattel, money or valuable security obtained by the false pretenses.
3. While surplusage does not vitiate, indictments for false pretense should charge only intent to defraud, omitting the name of the person intended to be defrauded, also the name of the owner of the property obtained by the false pretense.
INDICTMENT for obtaining goods and money by false pretenses from W. D. Stedman Co., with intent to defraud said W. D. Stedman Co., tried before Robinson, J., at July Term, 1899, of the Superior Court of RANDOLPH County. The defendant was convicted, and from the judgment rendered appealed to the Supreme Court. The exceptions taken are noted in the opinion.
J. T. Morehead for appellant.
Attorney-General for State.
The defendant in this case is indicted for obtaining goods by false pretenses. The paper writing is in all respects similar to the one, for the forgery of which, the same defendant was convicted in the preceding case. The exception that the paper is proof was partly in writing and partly printed is disposed of by the opinion in that case, as is the exception as to the additional words "Randolph County," printed on the margin of the paper.
The defendant further excepts in this case that the State was (659) permitted to show that the blank which was filled out was similar to the blanks upon which genuine county orders were filled out. We see no ground to sustain the exception. The court properly refused the prayer that there was a variance because of the aforesaid words on the margin, or that there was no evidence that the defendant represented the paper as an original order. The words "a true copy" written on county orders do not purport that they are not originals, but that they correspond with the original order entered on the minutes by the county commissioners. They are, in fact, the originals so far as the public are concerned.
The court also properly refused to charge that, if Stedman, of the firm of Stedman Co., gave the defendant his check in payment of the said alleged forged orders, the defendant is not guilty as charged. This is based upon the ground that the indictment charges an intent to cheat Stedman Co., whereas the check was that of Stedman alone, but section 1025 of The Code, provides not only that in an indictment for this offense, it shall not be necessary to charge an intent to defraud any particular person, which per se would make the charge of an intent to defraud the firm surplusage, and like any other surplusage, not required to be proved, but it is expressly added that "it shall not be necessary to prove an intent to defraud any particular person, but it shall be sufficient to prove that the party accused did the act with intense to defraud." State v. Burke, 108 N.C. 750.
The statute, Code, section 1025, further provides that it shall not be necessary to allege "any ownership of the chattel, money or valuable security" obtained by the false pretenses, which renders the allegation of ownership thereof in Stedman Co., surplusage, like the day of the month, and like matters which need not be proved, though charged, and dispenses with the consideration of the exception that the (660) ownership of the check obtained was not proved to be in them. Solicitors, in drawing indictments for false pretense, should properly charge only the intent to defraud, leaving out the name of the person intended to be defrauded, and, likewise, that of the owner of the property obtained by the false pretense, but surplusage does not vitiate.
No error.
Cited: S. v. R. R., post, 671.