23 S.C. 170 | S.C. | 1885
The opinion of the court was delivered by
The indictment in this case charged the defendant with having obtained from the prosecutor certain
The evidence on the part of the prosecution tended to show that in April, 1882, the defendant bought from the prosecutor corn to the amount of $54.86, on which he paid $25 in cash, and obtained credit for the balance until the fall, under the representation that he was planting cotton, and would send to the prosecutor his crop. There was also some evidence adduced on the part of the prosecution for the purpose of showing that the defendant planted no cotton during that year, that none was sent to the prosecutor, and that the balance due on the account had never been paid. The defendant adduced evidence tending to show that he did plant cotton in 1882, that he had paid the balance of the account with the exception of some few cents, and that the reason why he did not send his cotton to the prosecutor as he had promised to do was that he had paid very nearly all the balance due him, and as he had heard that the prosecutor was in a precarious condition, financially, he was afraid to send him his cotton, as he had agreed and intended to do.
The defendant requested the Circuit Judge to charge the jury, “That in order to convict, the jury must be satisfied from the evidence that the defendant did not plant any cotton during the year 1882; and that the State having alleged that the defendant did not plant cotton during the year 1882, should prove the same to the satisfaction of the jury, or the defendant should be acquitted.” The solicitor requested that the jury should be instructed as follows: “There may be one or more false pretences charged in an indictment, and the proof of either is sufficient. In
The defendant having been convicted, appeals upon the following grounds : “I. Because the indictment was fatally defective in not alleging that the defendant knew, at the time he obtained the goods, that the statement upon which he obtained them was false. II. Because defendant’s alleged agreement to ship and consign his cotton to T. Gr. Snowden, the prosecuting witness, in the autumn of 1882, was a promise and not a pretence, and, therefore, not indictable, though not kept, or meant to be kept, at the time it was made, and his honor erred in not so holding. III. Because .the false pretence, as alleged .in the indictment, was the avowal of the defendant, that he was planting cotton near Oakley, in the County of Berkeley, during that year (1882), which avowal the indictment alleged to have been false, and further alleged that in truth and in fact said defendant was not planting, and did not plant any cotton during the year 1882; all of which averments in the indictment were material, and should have been sustained by proof, and his honor erred in not so holding. IV. Because his honor’s charge to the jury, that the indictment alleged two false pretences, was incorrect and misleading.”
The question raised by the first ground of appeal is not properly before us, inasmuch as there does not appear to have been any ruling by the court below upon that point, and there is,
The second and third grounds of appeal may be considered together. The best definition of the offence charged in this indictment is that given by Bishop (2 Crim. Law, § 415) in the following words: “A false pretence is such a fraudulent representation of an existing or past fact by one who knows it not to be true, as is adapted to induce the person to w'hom it is made to part with something of value.” It follows from this that a mere promise to do something in the future, as for example, to pay for goods at a future time, even if false, is not such a pretence as would come within the terms of the statute. 2 Bish. Cr. L., §§ 419, 420. It is true, that the combination of a false promise with the false representation of an existing or past fact will not take the case out of the statute, but it is not the false promise which constitutes the offence, but the false representation with which the promise may be connected. Hence, unless there is a false representation, upon which the false promise is based, there
Looking at this case in the light of these principles, we think it clear that the Circuit Judge erred in refusing to charge the jury that in order to convict the defendant they must be satisfied from the evidence that the defendant did not plant any cotton during the year 1882. That was the only false representation of an existing or past fact alleged in the indictment, and untd that was proved the defendant could not be convicted, even though it should have been proved to a demonstration that the defendant had failed to keep his promise to send his cotton to the prosecutor. Indeed, the Circuit Judge, in his charge to the jury, made the case turn entirely upon the question whether the balance due the prosecutor by the defendant had been paid, wholly ignoring the fundamental inquiry whether the goods had been obtained by a false representation of an existing or past fact, coupled with a promise to pay for them by sending the cotton in the fall.
We think, also, that the Circuit Judge, in adopting the suggestion of the solicitor, that there were two false pretences charged in the indictment, may well have misled the jury into the belief that it mattered not whether the allegation that the defendant planted no cotton in the year 1882, was sustained by the evidence, and that if the defendant failed to pay as he had
The judgment of this court is that the judgment of the Circuit Court be reversed, and that the case be remanded to that court for a new trial.