*1 THE IN SUPREME COURT. Hargett. Assuming Petitioner’s land not abut the House Road. School School petitioner’s House Road was use as a matter of available right or thereto permission, petitioner would have access distance) cartway (for greater were off from A laid to C or over lands of Smith, Riggs 2,057 Cora Hubbard or It is feet from C Gaskins. to highway. plenary was evidence the School House Road was unsatisfactory impassable. Too, times there at hazardous plenary evidence the area bеtween amd C was lower and wooded expensive and that it would be difficult and to construct and maintain a road thereon. evidence, appears it therе not a consideration of all
public adequate transportation affording road or other means of neces- sary proper ingress egress petitiоner’s to or from land. just necessary, lay crucial issue was whether it was reasonable and to cartway off a across the Leamon Smith land as determined jury lay cartway A to of view rather than off a C across Riggs thereby provide land or both and access to a Gaskins point 2,057 highway. on the House Road feet from the In the Sсhool assignments circumstances, respondents’ of error are overruled. said respondents’ assignments given Each of other of error has been say, none еrror careful consideration. Suffice to discloses deemed prejudicial respondents justify such extent to a new trial.
No error.
STATE v. NATHANIEL E. HARGETT.
(Filed May 1963). Pretense 1— 1. False § State, in ordеr the decisions of this Under constitute false misrepresentation subsisting faet, some amd while any token, promises there need not be un- fulfilled, prosecution. cannot be made the basis of G.S. 14-100. 2— 2. False Pretense § casket, who owned a An indictment a box in placed, purposes, and a used for it was to be burial which bury prosecuting promised witness in the son the casket shown burial, bury and to separate grave, fatally shown in the casket held child regard fective, other than averments since the thоse facts fulfillment, promises for future which are relate basis prosecution for false TERM, 1963. *2 J., concurring in result. Parker,
Appeal Term, by Armstrong, November defendant J., Superior Court, Greensborо Division. GuilfoRD prosecution pretense. arraign- felony Criminal for the of false sufficiency ment and of the plea, challenged before the defendant indictment The quash. court the motion. de- motion to The denied excepted. fendant sufficiency The the evi- challenged defendant of by timely guilty, dence not and ex- for а directed verdict of motions cepted guilty to the court’s From refusal to allow them. a verdict of and imprisonment years, for term three to ten appealed. Attorney T. W. F. Asst. Bruton, General, Bullock, James General the State. Adams, Hagan Kleemeier, & Jr., Hannah Charles T. Hagan, appellant. for defendant J. The indictment in the сase was drawn under G.S.
Higgins, any 14-100: “If person knowingly shall designedly, and any forged or paper 'any counterfeit or by token, . . . or other whatsoever, person goods, obtain from any money, . . . property, or thing of value . . . with intent to cheat‘ or defraud person corporation person . such guilty felony . . shall be aof . . .”
The in indictment cаse is of extreme length. In factual aver- it attempts allege ments certain of the in defendant’s acts tense, especially as to his state of fairly when Nevertheless, mind. analyzed, the charges indictment paid $42.50 agreed with Willie Poole to body remove the Poole’s infant son hospital from the to the home, defendant’s funeral prepare it for burial, furnish a casket which was father, place shown to the casket in box, body a wooden burial in grave- a decent a suitable yard ; аnd that in truth and in fact the of the infant was not son shown, placed in separate buried the casket not in grave space in a graveyard, not given burial; suitable and thаt carry fendant never intended the promises by out means of which he obtained from the sum of $42.50. Poole arrangements
The for the burial were made July on 7, 1961. The State offered evidence that members the Guilford County Sheriff’s Department 18, 1961, on December discovered the body of the Poole plastic bag wrapped infant buried a delapidated pine box infants with two other colored in the 'defendant’s graveyard near Pleasant Garden. IN THE COURT. SUPREME by defendant offered The evidence the actual burial it, box into- the wooden dug grave,
whose fitted witness -testified he body placing assisted the defendant grave. in- sufficiency question presented by .is the appeal
The
'tire
under which
statute
-charge
dictment to
“false
Hence, for defi-
pretense.
dictment was drawn does not define
subject
leading authority on
nition, we must look tо the courts. Our
not
-promise is
that a
is settled
Phifer,
is State v.
“It is a well-established rule criminal indictable must be an untrue statement of a representation to be amounting representations False to merе past or an fact. of intention have reference to-future events and promises or statements they statutes, pretense within false are not criminal prоperty.” Jur., 22 Am. part to- with his party the defrauded duce 835. 452; 168 A.L.R. Pretense, §14, p. following General’s brief In case contains this “The State not concede that the bill frank statemеnt: of indict- (Referring when tested rules. is above ment indictments.) However, recognizes construction the State liberal question of the indictment raises a serious as to thаt a representation subsisting -or or not fact whether sufficiently “Although . alleged.” . . Court has held has this that been -subsisting support fact and will actionable mind’ is a fraud a ‘state of not understand that this has applied we do rule been in a civil actions for false to criminal at the critical time the defendant case, obtained the money,
In selected; likewise, hand box in had on which it a used also owned placed. purposes. He -burial to be All TERM, 1963. v, Andekson. other material averments fulfillment— promises сonsisted of not of existing facts. cited, Under the authorities the indictment failed to charge pretense as these defined courts. In definitions “state of mind” does not sеem to have been considered fact. Because of the fatal bill, defect this Court is arrest judgment. 203, State v. Dunston, 256 N.C. 123 S.E. 480.
Judgment arrested.
PARKER,J., concurring opinion result. I am of that the bill of in- dictmеnt in However, this case drawn I is defective. believe as upon the facts here a valid indictment could have been drawn under 14-100, G.S. agree I with the authorities that hold “thаt a fact, state of mind that, therefore, is a false state- ment as intention of accused a false as to an exist- is * ing fact* False Pretenses, p. Lord Justice Edgingtоn Bowen said in (1885), Reports, Fitzmaurice Law Chancery quoted Div. a classic statement which has been with approval by many since courts: must be “There a misstatement of an existing fact: but the state of a mind is man’s as much fact as digestion. state of his It very is true that it to prove is difficult what the particular is, state a man’s mind at a time it can bе as- anything certained it is A misrepresentation as much fact else. as state is, therefore, of man’s mind a misstatement of fact.” authority contrary. I C.J.S., op. realize there is cit., p. *4 quotation
See from 35 also Pretenses, Phillips, N.C. LILLIE
STATE v. ANDERSON.
(Filed May 1963.) 1. Indictment and Warrant 9—§ expresses charge against A warrant or indictment is sufficient if it plain, explicit intelligible, manner and contains suf- procеed ficient matter to enable the court to and bar a subsequent prosecution offense, for the same and it is it be upon couched of the statute or refer the statute based, inapposite which it is an reference to statute will not vitiate it. Gambling 5—§ operate warrant a bouse in which vari- types gambling continuously “is permit ous carried on” and did named