82 N.C. 607 | N.C. | 1880
The bill of indictment is as follows: The jurors for the state upon their oaths present that Francis Holmes, late of the county of New Hanover, with force and arms at and in said county, on the first day of January, A.D.1879, did designedly, unlawfully and falsely pretend to one Remus Thomas, that a certain horse then in his possession was sound and healthy, and that there was nothing the matter with him, whereas in truth and in fact the said horse was not sound and healthy, but was perfectly unfit for use, well knowing the same to be false, by color of which said false pretense, he the said Francis Holmes did then and there unlawfully and designedly obtain of the said Remus Thomas one horse of the value of twelve pence, the property of the said Remus Thomas, with intent then and there to cheat and defraud the said Remus Thomas, to the great damage of the said Remus Thomas, against the form of the statute in such cases made and provided and against the peace and dignity of the state. *608
There was a verdict of guilty. The defendant obtained a rule for new trial, the rule was discharged and he then moved in arrest of judgment, and that motion was overruled, from which ruling he appealed. It is unnecessary for us to consider the question of new trial as we are of the opinion that there was error in the ruling of the court below on the motion in arrest of judgment.
The defendant is indicted under section 67, chapter 32, Battle's Revisal. There have been a good many cases decided by this court of indictments under that section, and while there has been some differences in the interpretations given to it, the court seems to have settled down upon the case of the State v. Phifer,
For instance, if a man falsely pretends that he is the servant of another and has been sent by his master for certain goods, and obtains them; or one buys goods from a merchant and says he has no money with him, but has a deposit in bank and gives a check for the price, and it turns out that he has no money there; these and such false representations of existing facts are what is meant in the statute by false pretences, and they must be set forth in the indictment with sufficient certainty, and some or all of them must be negatived by specific averments. Arch. Cr. Pl., 246-'47.
In this indictment there is no averment of any false pretense, but only of a falsehood, a false affirmation, for which the defendant is liable in a civil action. If such a falsehood were indictable, then, instead of all the actions which have been brought for deceits and false warranties, the defendant should have been indicted for obtaining goods or property by false pretences.
In Lambeth's case,
Error. Reversed. *610
