16 S.E. 384 | N.C. | 1892
Cross-examined — Witness said that he began business with defendant in 1886, and opened an account with him then, and gave him a note for $150; thinks it was a bank note. The condition of the $500 note was supplies to be advanced during the year; witness got goods from him from time to time, and delivered to him spirits and turpentine and got credit for it. Witness had a notice from the bank that the note was due. The $500 note was a printed Peoples Bank note. The blank note witness signed was to renew the $500 note in bank; witness supposed the note was in the bank; afterwards he signed the other blank note; it was about ninety days after April. The note dated July, 1888, was signed to enable Moore to renew the $500 note; defendant had possession of it; defendant went to the bank after it when witness called for it; witness knew the note was in the bank at that time; witness never had any business with defendant at the bank, but did all his business with him at his store; Mr. Robinson was his bookkeeper. At the end of each month witness was charged on the books with the interest on the note; witness told Robinson he (witness) knew the note was in bank; witness (670) knew this when he was making payments on the note. The train left Fayetteville about 3 o'clock and it was between 2 and 3 when witness called to see defendant about the note and witness went for it; defendant never told witness the note was not in the bank; he did tell witness that the second note was to renew the note in bank. Witness did not come to him after defendant's failure, but came after he heard of the bank failure. Witness did not tell Duncan McLean or John McDuffie that he knew the note belonged to the bank; witness cannot tell the difference between a note being in bank and belonging to the bank. Witness did much more than a $500 business with defendant; it amounted to $2,000 or $3,000, but witness never owed defendant more than $500 at a time, and witness examined his account on defendant's book from time to time, and saw the charges and credits. The note dated ____ July, 1888, was read in evidence.
Re-direct. — The witness understood the credits were to be placed on the note. Witness had had all his transactions with defendant at his store, and signed all the notes there.
John B. Broadfoot testified for the State, that he was assistant cashier or teller of the Peoples Bank; that the bank held the note for $500, signed by Ritter and payable to defendant. It was assigned the bank by the defendant on 5 January, 1888. The January note was paid by *423 the renewal note of April; the January note was regularly discounted in the Peoples Bank by defendant. The credits on the April note were interest payments made by defendant, and amount to about $96, and run from 5 July, 1888, to 16 November, 1890. The bank suspended 31 December, 1890.
Cross-examined. — Witness said that E. F. Moore, Jr., was clerk of the bank in April, and about that time, 1888. It is the general custom for those parties to whom notes are given to attend to the renewals thereof.
J. T. Ritter, recalled, testified that he has never seen the January note after it was given, nor the April or July note. The notice witness got from the bank was that the $500 note indorsed (671) by Moore was due. It was about 1 April, 1888.
The State closed.
The note given in July was as follows:
"$500. FAYETTEVILLE, ____ July, 1888.
"Ninety days after date I promise to pay to E. F. Moore, or order, five hundred dollars for value received, negotiable and payable at the Peoples National Bank of Fayetteville, N.C. with interest after maturity at the rate of eight per cent per annum until paid, for money loaned to renew $500. Due ________, 188__. JOHN T. RITTER."
Among other prayers for instructions, the following were submitted by the defendant:
1. The bill of indictment charges the obtaining of money by defendant from J. T. Ritter by representing that a certain note for $500, made by J. T. Ritter to E. F. Moore, was his (Moore's), and that he (Moore) had a right to collect the same. By the testimony of the prosecutor Ritter, it appears that he knew that the said note was the property of the Peoples National Bank, and therefore the State has failed to make out its case, and the jury should find a verdict of not guilty.
2. That it is incumbent upon the State to prove that the defendant Moore stated to the prosecutor that he was the owner of the note and had a right to collect the same, and that the prosecutor made the payment to him on the faith of that statement, and if the State has failed to make such proof, the verdict should be not guilty.
3. That if, upon all the testimony, the jury shall believe that the prosecutor Ritter knew that the $500 note of January, 1888, had been assigned and transferred to the Peoples National Bank by the defendant when the prosecutor made the payment to the defendant, (672) that the said payments were not made in consequence of any false representations of defendant, and the jury should find a verdict of not guilty. *424
To the refusal to instruct the jury as requested, the defendant excepted and appealed from the judgment.
It was essential to the successful prosecution of the indictment to show that the prosecuting witness Ritter was induced by a reasonable reliance upon false representations made by the defendant to pay the latter money to be applied to the gradual extinction of his note theretofore executed. The question that confronts us at the threshold of our investigation is whether the testimony of Ritter tended to prove that any false statement was made by Moore in reference to the ownership of the note which was calculated to deceive or did deceive him, and influence him to pay the money to the defendant. As well in civil actions, brought to recover of another for losses incurred by false representations, as in criminal prosecutions founded upon the same species of fraud, the burden is on the actor or prosecutor to show, not only the false representation, but that a reasonable reliance upon its truth induced the plaintiff or prosecutor to part with his money or property, the only difference being as to the quantum of proof. S. v.Phifer,
We have not deemed it necessary to discuss or decide the interesting question whether any misrepresentation made by Moore was calculated to deceive, under the rule laid down by this Court, as we have not noticed numerous other points raised by the exceptions.
In refusing the instructions asked, there was error.
NEW TRIAL.
Cited: S. v. Davis,