17 N.C. App. 25 | N.C. Ct. App. | 1972
Defendant first assigns as error the court’s denial of defendant’s motion to quash the indictment for failure to allege an essential element of the crime charged. Defendant contends that the indictment fails to allege that the prosecuting witness, R. R. Johnson, was in fact deceived by defendant’s actions and that this omission is fatal. The indictment is as follows:
“The Jurors For The State Upon Their Oath Present: That Paul T. Hinson, late of the County of New Hanover wickedly and feloniously devising and intending to cheat and defraud R. R. Johnson on the 25th day of November, A.D. 1971 with force and arms at and in the county aforesaid, unlawfully, knowingly, designedly and feloniously did unto R. R. Johnson falsely pretend that he had the sum of $360,000.00 in certificates of deposit in the N. C. National Bank in Charlotte, N. C. available to loan the said R. R. Johnson to purchase some property and that the money was available to be loaned to the said R. R. Johnson if he paid defendant a brokers fee of $3500.00.
Whereas, in truth and in fact he did not have the $360,-000.00 in certificates of deposit at all and had no intentions*27 of loaning the money to the said R. R. Johnson but only wanted to get the brokers fee of $3500.00 from the said R. R. Johnson by means of said false pretense.
By means of which said false pretense, he, the said Paul T. Hinson, knowingly, designedly and feloniously, did then and there unlawfully obtain from the said R. R. Johnson, the following goods and things of value, the property of R. R. Johnson, to wit: in the amount of money of $3500.00 with intent then and there to defraud, against the statute in such case made and provided and against the peace and dignity of the State.”
Defendant contends that the indictment fails to allege that Johnson was actually deceived by the alleged representation of the defendant. In State v. Dale, 218 N.C. 625, 12 S.E. 2d 556 (1940), defendant was charged with obtaining money by false pretense. The defendant there moved to quash on the ground that the charge relating to false pretense did not show any causation between the representation alleged to have been made by defendant and the obtaining of the money. The court found the objection to be without merit stating that the principle applied in State v. Whedbee, 152 N.C. 770, 67 S.E. 60 (1910), is not applicable where the surrender by the victim of the money or other thing of value is the natural and probable result of the false pretense. It is applicable where the indictment fails to bring the conduct of the victim into such relationship with the false pretense as to suggest a reasonable motivation for his act. However, in the case sub judice, we are of the opinion that the facts alleged in the indictment relating to the misrepresentation are, ex proprio vigore, sufficient to imply causation, since they are obviously calculated to produce the result. See also State v. Claudius, 164 N.C. 521, 80 S.E. 261 (1913).
In State v. Greer, 238 N.C. 325, 327, 77 S.E. 2d 917 (1953), Justice Parker (later C.J.) said:
“The authorities are in unison that an indictment, whether at common law or under a statute, to be good must allege lucidly and accurately all the essential elements of the offense endeavored to be charged. The purpose of such constitutional provisions is: (1) such certainty in the statement of the accusation as will identify the offense with which the accused is sought to be charged; (2) to*28 protect the accused from being twice put in jeopardy for the same offense; (3) to enable the accused to prepare for trial, and (4) to enable the court, on conviction or plea of nolo contendere or guilty to pronounce sentence according to the rights of the case. (Citations omitted.)”
These purposes were quoted with approval in State v. Sparrow, 276 N.C. 499, 510, 173 S.E. 2d 897 (1970), cert. denied In re Whichard, 403 U.S. 940, 29 L.Ed. 2d 719, 91 S.Ct. 2258 (1971).
The indictment here gave defendant plenary information of the offense with which he was charged, to protect him from again being put in jeopardy for the same offense, to enable him to prepare for trial, and to enable the court to proceed to judgment. G.S. 15-153. It is beyond credibility that defendant was not well advised of the offense with which he was charged.
This assignment of error is overruled as is assignment of error No. 3 directed to the refusal of the court to arrest judgment for alleged deficiency in the indictment.
Defendant's only other assignment of error is to the court’s denial of his motion for nonsuit made at the close of the State’s evidence and renewed at the close of all the evidence. The evidence for the State tended to show the following: R. R. Johnson met defendant on 25 or 26 of November 1971 as the result of a telephone call from Johnson’s brother. Johnson went to the fishing pier at Wrightsville Beach managed by him and his brother. Defendant introduced himself to Johnson and said he had something he wanted to show Johnson. Defendant had a brief case and some files and showed Johnson some maps of property at White Lake which he said he had purchased from Tildón Walker of Fayetteville and which he said he was in the process of developing. They talked until around midnight. When defendant left he told Johnson he had something he wanted to discuss with Johnson. The next day Johnson and defendant had another talk. Defendant told Johnson that he had some money for the development of the White Lake property, that he understood Johnson was looking for some money with which to buy a piece of property on the beach and that this money was available. He told Johnson that he had $360,000 on certificate of deposit in North Carolina National Bank in Charlotte and this was the money he had borrowed to develop the White Lake property, but he was not ready to go ahead with the project and would either have to return the money to the people from
There was evidence that defendant had had an option for the White Lake property but the option had expired 31 March 1971, that no property had been conveyed to defendant, and that defendant had never developed any property in the White Lake area.
Johnson’s auditor talked with defendant and Johnson on two occasions. He had a copy of a certificate of deposit with him and although the witness did not examine it carefully he did see that it was for $860,000 and on the North Carolina National Bank.
Johnson’s brother was not present for the conferences in the auditor’s office but did participate in other discussions. His interest was aroused when defendant showed him the “paper work” of the Lakeside Development over on White Lake, and he then called the prosecuting witness. Defendant said that he owned the land at White Lake and he had the money in Charlotte to develop it, but “that he decided not to develop it now and he had to get in touch with the boys in the Bahamas over there to get it turned loose so they could buy the piece of property for us.” Defendant did not tell the witness where in Charlotte he had the $360,000 but he said he had some money on certificate of saving and it would be a few days before he could get it out.
In order to survive nonsuit the State must present evidence tending to show a false representation of a subsisting fact, whether in writing or in words or in acts, which is calculated to deceive and intended to deceive, and which does in fact deceive, by which one person obtains value from another without compensation. G.S. 14-100; State v. Davenport, 227 N.C. 475, 42 S.E. 2d 686 (1947). The evidence considered in the light most favorable to the State is plenary to warrant a reasonable inference of the fact in issue — defendant’s guilt. It was for the jury to say whether they were convinced beyond a reasonable doubt of the fact of guilt.
No error.