14 S.E. 968 | N.C. | 1892
The defendant is charged with violating chapter 444, Laws 1889, amended by chapter 106, Laws, 1891, which, as amended, provides: "If any person, with intent to cheat or defraud another, shall obtain any advances in money, provisions, goods, wares or merchandise of any description from any other person or corporation upon and by color of any promise or agreement that the person making the same will commence or begin any work or labor of any description for said person or corporation from whom said advances are obtained, and said person so making said promise or agreement shall unlawfully and willfully fail to commence and complete said work according to contract without a lawful excuse, the person so offending shall be guilty of a misdemeanor, and punished by a fine not exceeding $50, or imprisonment not exceeding thirty days." (485)
The affidavit and warrant were as follows:
J. R. Beasley, being duly sworn, etc., says that at and in said county, and in Bath township, on or about 24 October, 1891, William Norman did unlawfully and willfully obtain advances from me by false pretence for the amount of $2.09, by promising me to settle the same, and failed to comply, against the form of the statute in such cases made and provided, and contrary to law and against the peace and dignity of the State. J. R. BEASLEY.
To any Constable or other lawful officer of Beaufort County —
GREETING:
You are forthwith commanded to arrest William Norman, and him safely keep, so that you have him before me at my office in Bath, or some other magistrate in said county, immediately, to answer the complaint and be dealt with as the law directs.
Given under my hand and seal, this 26 October, 1891.
J. S. MARSH, J. P.
The defendant was convicted before the justice of the peace and fined $3, and appealed to the Superior Court. In that court leave was granted to amend the warrant. This was executed by amending the *342 affidavit, so that it reads as follows, the additional words being in italics:
"J. R. Beasley, being duly sworn, complains and says that at and in said county, and in Bath Township, on or about 24 October, 1891, William Norman did unlawfully and willfully obtain advances from me by false pretense to the amount of $2.09 — meat, flour, money — by promising me to work to settle the same, and failed to comply. The(486) defendant William Norman on 24 October, in Beaufort County, unlawfully, with intent to cheat and defraud J. R. Beasley, didobtain from said Beasley $1 in money, one pound of flour and otheradvances, upon and by color of his promise then and there made to saidBeasley that the said Norman would begin work for the said Beasley to payfor said advances; and then and there unlawfully and willfully did fail tobegin and complete said labor, according to said contract, without lawfulexcuse, contrary to the statute — against the form of the statute in such cases made and provided, and contrary to law and against the peace and dignity of the State." (Signed J. R. Beasley.) Warrant as above.
The defendant excepted because the justice of the peace was not present, and because the prosecutor did not swear to the warrant after it was amended.
The prayer for instruction (which was refused) and the charge of the court are stated in the opinion. Verdict of guilty. Defendant moved in arrest of judgment on the ground that the statute for the violation of which the warrant was issued was unconstitutional and void, as being in violation of Article I, sec. 16, of the Constitution, forbidding imprisonment for debt. Motion denied. Exception by the defendant. Judgment. Appeal.
The Code, sec. 908, provides that in any proceeding begun before a justice of the peace, whether in a civil or a criminal action, the court in which such action shall be pending "shall have power to amend any warrant, process, pleading or proceeding in such action, either in form or substance," and either before or after judgment. It is held that the section confers "unrestricted power of amendment" in such cases, provided the amendment does not change the nature of the offense intended to be charged. S. v.(487) Vaughan,
The defendant asked the court to charge, "If the jury should believe, from the evidence, that the defendant agreed to begin work on the following Monday for Beasley, and to pay him for advances by picking cotton during the week, but was arrested by Beasley on Tuesday, then he was not guilty." This was properly refused. Having failed to begin work according to contract, the defendant had necessarily failed "to begin and complete the work" as agreed. The criminal offense is not the promise to pay for the advances in work and the failure to do so. That would be a mere breach of contract, and could not subject the party to liability to imprisonment. The offense charged is that the defendant, with intent to cheat and defraud, "obtained the advances upon an agreement to begin work to pay for the same on Monday," and "unlawfully *344 and willfully failed to commence and complete said work according to contract, without a lawful excuse." If the defendant, withsuch fraudulent intent, procured the advances on the promise to begin work on Monday, and unlawfully and willfully failed to begin on that day, without lawful excuse, the offense was complete. The charge of the court, which was very clearly and correctly expressed, was as follows: "In order to convict, the State must show to the full satisfaction of the jury something more than obtaining the advances, a promise to work to pay for the same, and a breach of that promise. Nothing else being shown, these facts would constitute only a breach of contract, and for this the defendant could not be prosecuted criminally. The jury must be fully satisfied of an element of fraud in this transaction. If the jury believe, from the evidence, that the defendant obtained (489) these advances and promised to commence work on Monday morning to pay therefor, and at the time he obtained the advances and made the promise, intended to keep his word and commence work, and afterwards, being attracted by higher wages, or for other cause, failed to do so, he would not be guilty. But if the jury are fully satisfied that at the time he obtained the advances and made the promise (if he did make it) the defendant did not intend to commence work, but used the promise as an artifice or fraud for the sole purpose of obtaining the advancements, then he would be guilty. The jury must be satisfied that the defendant's object and purpose was to cheat and defraud."
In view of this charge, and what we have already said, it is not necessary to discuss the motion made in arrest of judgment, on the ground that the act creating the offense was in violation of section 16, Article I of the Constitution of North Carolina. That section provides, "There shall be no imprisonment for debt in this State, except in cases of fraud." The offense denounced by this statute is not the failure to comply with the contract, but the fraud in making it to obtain advances "with intent tocheat and defraud," Ordinarily it might be somewhat difficult to show such intent, in the absence of admissions of the defendant. Certainly evidence merely of the agreement to work, the obtaining advances thereon, and the failure to comply, would not warrant or support a verdict. But here there is no exception that the evidence was not sufficient to go to the jury, and, indeed, for that reason probably the entire evidence is not sent up.
No error.
Cited: Sheldon v. Kivett, ante, 410; S. v. Davis,
(490)