State v. Houston , 4 N.C. App. 484 ( 1969 )

166 S.E.2d 881 (1969) 4 N.C. App. 484

STATE of North Carolina
v.
William Miles HOUSTON.

No. 6926SC172.

Court of Appeals of North Carolina.

April 30, 1969.

Robert Morgan, Atty. Gen., by Dale Shepherd, Raleigh, Staff Atty., for the State.

Lila Bellar, Charlotte, for defendant.

BROCK, Judge.

Counsel for defendant forthrightly admits that assignments of error Nos. 2, 3 and 11 present no prejudicial error for review by this Court; we therefore deem them abandoned.

Assignment of error No. 1 seeks to challenge the jurisdiction of the Superior Court over the person of the defendant for the purposes of trial upon the charges against him. This assignment of error is based upon a parenthetical statement contained in defendant's Case on Appeal as follows:

"At this point during the trial Donald W. Stahl, Sheriff of Mecklenburg County entered the courtroom through a door adjacent to the Bench, spoke briefly with the deputy sheriff in attendance at the trial and with the deputy clerk and standing to the left-hand of the judge, just in front of the Bench (the jury being seated to the extreme right-hand of the court) stated that the man on trial was a federal prisoner and that he could not be tried in the Superior Court for that reason."

This statement by the sheriff to the presiding judge (it is conceded that the jurors did not hear the statement) is hardly grounds upon which to challenge the jurisdiction of the court. Quite apparently the presiding judge was not greatly impressed with the sheriff's assertion, because the trial proceeded without delay.

In addition to the foregoing parenthetical statement which was agreed upon by the solicitor for the State, appellant has added to the Case on Appeal (after the solicitor's acceptance of service and agreement to the Case on Appeal) two items: (1) a purported warrant for the arrest of defendant as a probationer from the United States District Court, along with a purported service of the warrant, and (2) a purported certificate by the sheriff of Mecklenburg County to the effect that at the time of trial defendant was in the Mecklenburg County jail as a result of an arrest under a warrant of the United States District Court.

It is clear that these two items were added to defendant's Case on Appeal after the Case on Appeal was agreed to by the solicitor. Since these items were not a part of the record proper, counsel had no right to insert them without consent, or order of the court. Such conduct of counsel was highly improper and is condemned, and the improperly added items will not be considered by the Appellate Court. Assignment of error No. 1 is overruled.

Defendant assigns as error (No. 7) that the trial court erred in its refusal to grant defendant's motion for judgment of nonsuit. On a motion to nonsuit, the evidence must be considered in the light most favorable to the State; and contradictions and discrepancies, even in the State's evidence, are for the jury to resolve. 2 Strong, N.C.Index 2d, Criminal Law, § 104, p. 648. The elements of the offense of obtaining property by false pretense are that there must be (1) a false representation by the defendant, by conduct, word or writing, of a subsisting fact, (2) which is calculated to deceive and intended to deceive, (3) which does in fact deceive, and (4) by which defendant obtains something of value from another without compensation. State v. Davenport, 227 N.C. 475, 42 S.E.2d 686. If there is substantial evidence of each of the elements of the offense, the court must submit the case to the jury. Defendant's primary argument is that upon cross-examination the State's witness stated that he knew defendant and assumed he was ordering the goods for his employer, and therefore there was no reliance upon any representation made by defendant. This argument overlooks the conduct of defendant in signing for the goods after they were charged to his employer. We hold that upon the evidence in this case the motion for nonsuit was properly overruled, and this assignment of error is likewise overruled.

The next portion of defendant's brief is devoted to discussing en masse, assignments of error Nos. 8, 9, 12, 13, 14, 15 and 16. These assignments of error cover questions propounded to witnesses by the court, the court's explanation to the jury of the charges against defendant, the court's summary of the State's evidence, the court's failure to state to the jury defendant's contentions argued upon motion to nonsuit, and the court's explanation to the jury of the elements of the offenses charged. Although the en masse argument is somewhat difficult to follow, we have considered all of it and conclude that no prejudicial error has been shown.

We have considered all of defendant's remaining assignments of error and find them to be without merit. The defendant has had a fair trial, which we find to be free from prejudicial error.

No error.

CAMPBELL and MORRIS, JJ., concur.