Opinion
(September Term, 1897.)
Indictment for Obtaining Money Under False Pretenses — Evidence, Sufficiency of.
1. If a person by his acts or conduct induces another to believe that a fact is really in existence, when it is not, and thereby obtains money or property, he comes within the scope of the statutes against false pretenses.
2. Where, on the trial of an indictment for obtaining money under false pretenses, there was evidence that the defendant obtained money from the deceased husband of the witness to get an Electropoise, which defendant, claiming to be an agent therefor, had agreed to sell to the husband, and which defendant claimed to be in the express office, when there was, in fact, no Electropoise in such office, and that the defendant kept the money so obtained: Held, that the evidence was sufficient to be submitted to the jury.
INDICTMENT for obtaining money under false pretenses, tried before Coble, J., and a jury, at March Term, 1897, of MOORE.
The defendant was convicted and appealed. The facts appear in the opinion.
Attorney General Walser for the State.
W. E. Murchison for defendant.
This was an indictment for obtaining goods under false pretenses, Code, sec. 1025, and the only exception is that the judge refused to charge, as prayed, "that the evidence was not sufficient to sustain the charge." In the evidence sent up it appears, inta alia, that the principal witness for the State testified that "the defendant claimed to be an agent for the Electropoise; my husband promised and agreed to take one; the defendant came to my house on Monday evening and wanted to borrow horse and buggy to go to Jonesboro for it on Tuesday morning, and said he would have to have $25 to get it out of the express office. . . . When he came back he said it had not come yet. . . . Defendant said he wanted $25 to get the Electropoise out (605) of the express office; that it was at Jonesboro; never got the Electropoise and never got any of the money back." On cross-examination she said "the defendant came back and said he must have $25 to get it out of the express office at Jonesboro. He talked like it was in the express office. . . . At the time he (her husband) paid defendant $25, defendant said, `I must have $25 now, before I get it out of the express office.'" The evidence was properly left to the jury in a very careful charge by the court, who explained to them that the State must satisfy them beyond a reasonable doubt (1) that the defendant represented J. A. Moore, as charged in the indictment, that there was an Electropoise in the express office at Jonesboro; (2) that the $25, if obtained, was obtained on that representation; (3) that the representation was false, and (4) was made with intent to defraud, and (5) thereby said Moore was defrauded, S. v. Phifer, 65 N.C. 321; but that if either of said ingredients was not proved they should find the defendant not guilty. The court further instructed the jury that the false representations must have been of the subsisting fact, and that if the defendant represented that the Electropoise would be at Jonesboro he could not be convicted. S. v. Mangum, 116 N.C. 998; S. v. Daniel, 114 N.C. 823. "If the false pretense consists in words which are indefinite and uncertain, the jury is to determine whether they were intended to and did convey a false impression, the circumstances surrounding the transaction being taken into account in determining that question." 1 McClain Crim. Law, p. 676; S. v. Alphin, 84 N.C. 745; S. v. Call, 48 N. H., 126. "If a person by his acts or conduct induces another person to believe that a fact is really in existence when it is not, and thereby obtains money or property, he comes within the scope of the statutes (606) against false pretenses." 7. Am. Eng. Enc., 751.
No error.
Cited: S. v. Williams, 128 N.C. 573; S. v. Whedbee, 152 N.C. 774; S. v. Carlson, 171 N.C. 826, 828.