State v. Rogers , 30 N.C. App. 298 ( 1976 )

226 S.E.2d 829 (1976) 30 N.C. App. 298

STATE of North Carolina
v.
B. J. ROGERS and Richard C. Postle.

No. 7623SC233.

Court of Appeals of North Carolina.

August 4, 1976.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Charles M. Hensey, Raleigh, for the State.

Tharrington, Smith & Hargrove by Roger W. Smith, Raleigh, for defendants-appellants.

CLARK, Judge.

The misdemeanor charges against both defendants Rogers and Postle are based on violations of G.S. 115-254, which provides as follows:

"Operating school without license or bond made misdemeanor.—Any person, or each member of any association of persons, or each officer of any corporation who opens and conducts a business school, a trade school or a correspondence school, or branch school as defined in this Article, without first having obtained the license herein required, and without first having executed the bond required, shall be guilty of a misdemeanor and be punishable by a fine of not less than one hundred dollars ($100.00), nor more than five hundred dollars ($500.00) or 30 days' imprisonment, or both, at the discretion of the court, and each day said school continues to be open and operated shall constitute a separate offense."

A correspondence school is defined by G.S. 115-245(2) as follows:

"(2) ``Correspondence school' means an educational institution privately owned and operated by an owner, partnership or corporation conducted for the purpose of providing, by correspondence, for a consideration, profit, or tuition, systematic instruction in any field or teaches or instructs in any subject area through the medium of correspondence between the pupil and the school, usually through printed or typewritten matter sent by the school and written responses by the pupil."

Both defendants conceded that they had not obtained a license to operate a correspondence school as required by G.S. 115-248 in this State and had not executed a bond required by G.S. 115-253.

There is an apparent inconsistency between the misdemeanor and felony charges in that the misdemeanor warrants charge the operation of a correspondence school in this State without a license, and the felony indictments charge false pretense in that the defendants represented a bona fide correspondence school operating in the State of Virginia. The dates in the warrants correspond with the dates in the indictments. All of the evidence tends to show that defendants originally represented to high school graduates that they were agents of Center Training Service located in Danville, Virginia, and subsequently represented that the school had been moved to Greenville, South Carolina.

The State offered no evidence that defendants opened and conducted a correspondence school in this State. The defendants offered evidence that they contracted with a printing company in Boone, North Carolina, for the printing of letterheads, booklets, test cards and other materials, all purporting to relate to Center Training Service in Greenville, South Carolina. But this evidence and evidence that the mail of defendants was forwarded from Danville, Virginia, considered in the light most favorable to the State, was not sufficient to carry the misdemeanor charges to the jury. If the State's evidence is sufficient only to give rise to a conjecture or suspicion that the crime charged was committed and that defendant perpetrated it, nonsuit must be granted. State v. Littlejohn, 22 N.C.App. 305, 206 S.E.2d 373 (1974).

THE FELONIES

In North Carolina the crime of false pretense is statutory (G.S. 14-100) and the statute specifically states the crime is a felony. State v. Fowler, 266 N.C. 528, 146 S.E.2d 418 (1966). The elements of the crime are (1) false representation of a subsisting fact, whether in writing, by words, or by acts, (2) which is calculated to deceive and intended to deceive, (3) which does in fact deceive, and (4) by which one obtains something of value from another without compensation. State v. Wallace, 25 N.C. App. 360, 213 S.E.2d 420 (1975).

Each of the indictments alleges a false representation in that the defendant represented an existing bona fide correspondence school, and further alleges a promise that upon completion of the course of instruction offered by said school and the successful passage of a "Civil Service Examination" the Federal Government must provide a job, or that upon completion of the course of instruction the student would receive a card which would require any chosen employer to give the student a job.

In the charge against the defendant Rogers relating to defrauding Perry Brent Clark (75CR1603) and the charge against defendant Postle relating to defrauding Cathy Elliot (75CR1611), the evidence does not disclose any promise of guaranteed employment after successful completion of the correspondence course. However, the crime of false pretense does not require proof of a false representation and a promise. In these two cases substantial evidence was offered which tended to show the false representation of agency for a bona fide correspondence school; that it was calculated and intended to deceive and in fact did deceive, by which the defendant obtained money from the prospective student. Under these circumstances the allegation in the indictments of the promise of guaranteed employment upon successful completion of the correspondence courses was surplusage since the promise can be separated from the false representation.

A false representation of a subsisting fact may be accompanied by a promise and may be considered as together constituting the false pretense, or if the false representation and the promise can be separated and the evidence discloses that the victim relied on the false representation of fact, the promise may be disregarded and the accused may be convicted of the false representation of fact. State v. Phillips, 240 N.C. 516, 82 S.E.2d 762 (1954); 35 C.J.S. False Pretenses § 9 (1960). We find the evidence sufficient to submit to the jury all of the felony charges against both defendants.

It was incumbent upon the State to prove, as alleged in the indictments, the falsity of the representation that the defendants were agents of a bona fide correspondence school located in Danville, Virginia. Gene Goss, a deputy sheriff of Ashe County, testified as a witness for defendants. During the direct examination of this witness the trial judge intervened and asked the witness if he had checked with the authorities in Virginia and South Carolina; the witness replied that one Richard Waddell went to Richmond, Virginia, to the Supervisor of Preparatory Schools at the Department of Education for the State of Virginia, the custodian of the records, and after a careful inspection of the records of that office, there was no record of that school having ever been issued a permit to represent the State in a preparatory school.

This testimony about the contents of public records in other states was hearsay and was not admissible under the public records exception to the hearsay rule. See 1 Stansbury, N.C. Evidence 2d (Brandis Rev.1973) § 153.

Having found reversible error in the admission of evidence for which we must order a new trial, we do not discuss other assignments of error which may not recur upon retrial.

The judgments in misdemeanor cases against the defendant Rogers (75CR1616, 75CR1618, 75CR1619, 75CR1620 and 75CR1622) and the judgments in the misdemeanor cases against the defendant Postle (75CR1623 and 75CR1628) are

Vacated and the cases dismissed.

For error, in the felony cases against the defendant Rogers (75CR1601, 75CR1602, 75CR1603, 75CR1605, and 75CR1606), and in the felony cases against the defendant Postle (75CR1611 and 75CR1614), we order

New trials.

MORRIS and VAUGHN, JJ., concur.