State v. . Gibson
85 S.E. 7
N.C.
1915
Check Treatment
Walxer, J„

after stating the case: It is an elementary rule in the criminal law that a defendant must be convicted, if at all, of the particular offense alleged in the bill of indictment. He has the constitutional right to be informed of the accusation against him, “by indictment, presentment, or impeachment,” and no person shall be convicted of any crime but by the unanimous verdict of a jury upon the charge so made. Const., Art. I, secs. 11, 12, and 13. -The evidence, therefore, must correspond with the charge and sustain it, at least in substance, before there can be a conviction. The defendant contends that the evidence in this case does not so correspond with the charge, and does not, in law, support it, but that there is a fatal variance between the two. If this be so, the verdict was wrong and cannot stand. He is charged in the bill with obtaining money, towit, $350, by a false pretense, while the proof tends to show only that, while he made the false representation knowingly and corruptly, he did not obtain money by reason thereof, but was induced to part with the note, which he signed for the defendant, and which he afterwards “took up” with another note signed also by himself, and that he has never paid any money on the note, and certainly none to the defendant. All the defendant got was a note signed by the prosecutor; how it was done and to whom payable does not appear. The defendant never got any money from the prosecutor. What he did get, we presume, was paid by the bank to him. There was a fatal variance between the allegation in the bill and the proof. It is the general rule that the thing obtained by the false pretense, as in the case of the thing stolen in larceny, must be described with reasonable certainty, and by the name or term usually employed to describe it. McLain’s Or. Law, sec. 595; *321 s. v. Reese, 83 N. C., 637. A promissory note must be described as snob, and not as money. 3 Bish. New Cr. Proe., p. 1691, sec. 732 (3). We never properly speak of sucb a note as “money” or as “so many dollars.” Money is any lawful currency, wbetber coin or paper, issued by tbe Government as a medium of exchange, and does not embrace witbin its meaning a note given by one individual to another or otherwise put in circulation. Our statute in regard to larceny, embezzlement, and false pretenses makes tbe distinction clearly and unmistakably. It makes indictable tbe obtaining by a false token or other false pretense any “money, goods, property, or other thing of value, or any bank note, check, or order for the payment of money, issued by or drawn on any bank or other society or corporation within this State, or any of the United States, or any treasury warrant, debenture, certificate of stock, or public security, or any order, bill of exchange, bond, promissory note, or other obligation, either for the payment of money or for the delivery of specific articles, with intent to cheat or defraud any person or corporation.” Revisal, sec. 3432. It will be seen from this provision of the statute that it classifies those things the obtaining of which by a false pretense is made criminal, and carefully distinguishes between them, and assigns to each its own proper name and designation, as something separate and distinct from the others. It was held in Com. v. Howe, 132 Mass., 250, 258, that an averment of obtaining a sum of money by false pretense is not supported by proof of obtaining a certificate of deposit of a bank, as the property should have been more accurately described and by its usual name, and that variance was not cured by their statute of jeofails and amendments. And to like effect it was held in Carr v. State, 104 Ala., 43, that to warrant a conviction under an indictment which charges the defendant with having embezzled or fraudulently converted to his own use money, the evidence must show that the money came into the possession of the defendant; and the proof that the defendant received only a cheek, and not money, will not sustain a verdict of guilty. Illustrations of the strictness of the rule may be found in many of the eases on the subject. Berrien v. State, 83 Ga., 381, where it was held that an indictment for falsely and fraudulently mortgaging a “dark bay mare mule” was not supported by proof that the defendant mortgaged a “mouse-colored mare mule named Mag,” as he would not be protected by an acquittal or conviction in a future indictment for having fraudulently mortgaged a mule of the latter description. Barclay v. State, 55 Ga., 179. Also as to a like variance in the description of a note. Wallace, 79 Tenn., 542. And as to a fatal variance between a description of “United States legal tender notes” and “National bank notes.” People v. Jones, 5 Lansing (N. Y.), 340. To same effect, Harris v. State, 30 S. W., 221. In Com. v. McMarriman, 15 Pa. Co. Ct. Rep., 495, the *322 charge that defendant robbed the prosecutor of a promissory note was held not sustained by proof that he robbed him -of “money” or “so many dollars.” That is our case with the terms reversed, and the rule should apply conversely. Where the defendant was charged with obtaining a clay-bank mare by a false pretense as to the qualities of a “sorrel horse,” and the proof was that he got a “saddle horse,” we held it to be a material variance, Justice Holce saying that, “under the authorities, there would seem to be a clear case of variance between the allegation and the proof, and the jury should have been so instructed.” S. v. Davis, 150 N. C., 851, citing S. v. McWhirter, 141 N. C., 809; S. v. Corbitt, 46 N. C., 264. So it was held in S. v. Hill, 79 N. C., 256, that a charge that defendant had injured a “cow” was not proved by showing an injury to an “ox.” See, also, S. v. Ray, 92 N. C., 810; S. v. Miller, 93 N. C., 511. The differences in the above cases between “allegata and probata” were not as marked or as substantial as is the difference in this case between “money” and “a promissory note.” They are two" distinct things, each having its well known meaning and name in the parlance of the people as well as in the law. An action for “money” would not permit of a recovery for a note, without amendment. You cannot amend an indictment — at least, against the will of the defendant. You must abide by its terms, and prove the charge as it is laid in the bill. A variance cannot be taken advantage of by motion in arrest of judgment. S. v. Foushee, 117 N. C., 766; S. v. Ashford, 120 N. C., 588; S. v. Jarvis, 129 N. C., 698. It is waived if there is no objection to it before the verdict is rendered, as those cases show. But a motion to nonsuit is a proper method of raising the question as to a variance. It is based on the assertion, not that there is no proof of a crime having been committed, but that there is none which tends to prove that the particular offense charged in the bill has been committed. In other words, the proof does not fit the allegation, and, therefore, leaves the latter without any evidence to sustain it. It challenges the right of the State to a verdict upon its own showing, and asks that the court, without submitting the case to the jury, decide as matter of law that the State has failed in its proof.

The judge should have sustained the motion and dismissed the indictment ; but this will not prevent a conviction upon another indictment for obtaining the note by a false pretense, and this follows from what we have said. A party is indictable under Eevisal, sec. 3433, for obtaining-a signature to any pritten instrument, the false making of which would be punishable as forgery. The evidence offered at the trial proved an indictable offense, but not the one alleged in the bill. We presume the solicitor will send a bill with averments agreeing with the proof he can make, and the court may hold the defendant to answer another indictment.

*323 Tbe judgment is reversed, tbe verdict set aside, and tbe bill of indictment dismissed as of nonsuit.

Reversed.