142 S.E. 775 | N.C. | 1928
The defendant was indicted for false pretense. The evidence tended to show that on or about 15 September, 1925, the defendant approached the prosecuting witness, Dr. R. L. Reynolds, and requested him to endorse a note for the sum of $3,000.00, stating to said Reynolds that certain other parties had agreed to sign the note also.
Reynolds testified as follows: "When he came in and wanted this note signed he told me he had seen these fellows and they agreed to sign it and I told him I would sign the note with the understanding that all those fellows were on that note before he put it in the bank, and he said he would see they were all there and he was going to fill it out with *507 the names before he put it in the bank, and with that understanding I signed the note that he got their names on it before he put it in the bank and that they had already agreed to sign it."
George Curry, who was one of the parties referred to by the defendant, signed the note, and the defendant placed the note in the bank with no signature thereon except that of Curry.
The defendant denied that he had stated to the prosecuting witness that he would secure the names of other parties except Curry and proposed to show upon the question of fraudulent intent that a renewal note was signed by the prosecuting witness and Curry, and that after the giving of said renewal note the defendant confessed judgment in favor of the prosecuting witness and of said Curry in the sum of $3,000.00, and in satisfaction of said judgment executed a bill of sale for his entire stock of goods, valued at $16,000.00, to said Reynolds and said Curry, and the attorney for said Reynolds thereupon marked the judgment satisfied and paid in full; that thereafter Reynolds and Curry took over the defendant's entire business but that the business was not a success and failed. Thereafter in March, 1927, the prosecuting witness Reynolds issued a warrant for the defendant, charging him with false pretense under C. S., 4278. The defendant was convicted and sentenced to be confined in the State's prison, for a term of two years, to be assigned to hard labor and to wear stripes. The defendant appealed, assigning error.
It has been held in S. v. Gibson,
The constituent elements of the offense of false pretense are: (1) That the representation was made as alleged; (2) that property or something of value was obtained by reason of the representation; (3) that the representation was false; (4) that it was made with intent to defraud; (5) that it actually did deceive and defraud the person to whom it was made. S.v. Carlson,
The intent to defraud is one of the essential elements of the crime. S.v. McDonald,
The defendant contended that the testimony showing that he confessed judgment upon said note and thereafter executed and delivered a bill of sale to the prosecuting witness and the other endorser of said note and turned over and delivered the property to them, was competent and admissible upon the question of his intent to defraud. In our opinion this contention is sound and the evidence should have been admitted. We do not interpret the evidence so rejected as a mere attempt to reimburse the prosecuting witness. So far as the record discloses the judgment was confessed and the property turned over to the prosecuting witness, and the judgment canceled long before there was any suggestion of a criminal offense.
Upon the whole record, we are of the opinion that the defendant is entitled to a new trial, and it is so ordered.
New trial.