State v. Carlson

Walker, J.,

after stating the case: The motion to nonsuit requires that we should ascertain merely whether there is any evidence to sustain the allegations of the indictment. The same rule applies as in civil cases, and the evidence must receive the most favorable construction in favor of the State for the purpose of determining its legal sufficiency to convict, leaving its weight to be passed upon by the jury. S. v. Carmon, 145 N. C., 481; S. v. Walker, 149 N. C., 527; S. v. Costner, 127 N. C., 566. The effect of Laws 1913, ch. 73, allowing a motion for non-suit in a criminal case, was- considered in S. v. Moore, 166 N. C., 371; S. v. Gibson, 169 N. C., 318. Where the question is whether there is evidence sufficient to warrant a verdict, this Court considers only the testimony favorable to the State, if there is any, discarding that of the prisoner. S. v. Hart, 116 N. C., 976. The weight of the evidence and the credibility of the witnesses are matters for the jury to pass upon. S. v. Utley, 126 N. C., 997. Applying these familiar principles to the case under consideration, we are constrained to hold that the conviction of the defendant is sustained by the evidence.

A criminal false pretense may be defined to be the false representation of a subsisting fact, whether by oral or written words or conduct, which is calculated to deceive, intended to deceive, and which does in fact deceive, and by means of which one person obtains value from another without compensation. S. v. Phifer, 65 N. C., 321; S. v. Whedbee, 152 N. C., 770. In order to convict one of this crime the State must satisfy the jury beyond a reasonable doubt (1) that the representation was made as alleged; (2) that property or something of value was obtained by reason of the representation; (3) that the representation was false; (4) that it was made with intent to defraud; (5) that it actually did deceive and defraud the person to whom it was made. S. v. Whedbee, supra. There is proof in this case of every element of the crime. Mrs. Fuller’s testimony, if true, is of itself sufficient to justify a verdict of guilty. The representation was that defendant could buy the stock of the railway traction company for $20,000, but for no less. Dr. Fuller did not wish to invest so much in it, his share being one-half, or $10,000, and he asked Carlson if he could not get it for $18,000, to which the latter’s reply was, “No; I have tried that, but it won’t do. They won’t take less than $20,000. Another thing, there is a man in town who wants that Traction; he comes from Brooklyn, and he will beat us to it if we don’t get it. How soon do you think you will get that $10,000 that you will put in with me ?” Dr. Fuller replied, “There is no trouble about my share in the Traction; you can go ahead and do what you can about the deal.” This representation as to price of the stock was false to the knowledge of Carlson. He had already bought it, or taken an option to buy it, for $15,000. At first the owners of the stock, U. G-. Staton and Dr. D. S. Pace, offered to sell to him at $17,000, and Carlson then offered $12,000, the parties finally agreeing on $15,000 as the price. Carlson, apparently impecunious, went to see Dr. Fuller and even borrowed from him the $50 with which to make the deposit required “to bind the bargain.” There was evidence that he was acting stealthily and with the purpose of concealing the fact that he was negotiating for the purchase for Dr. Fuller, as well as himself. After urging Dr. Fuller, then 73 years old, to pay his part of the purchase money, he finally got him to do so, receiving his check for the $10,000, of which he paid $7,500 to the owners of the stock, kept $2,500 for himself, and left a note and mortgage for $7,500 standing on the property. He never paid any part of his share of $10,000. Without regard to the other evidence of a damaging character, what we have just recited would seem to be a sufficient answer to the motion for a nonsuit. We have proof of the representation of a subsisting and material fact, viz., that he could buy the stock at not less than $20,000, and the falsity of it; that the representation was made with intent to deceive and defraud Dr. Fuller of his money, and that it actually did deceive and defraud him. There can be no question that there is ample evidence to show the false representation, and that it was calculated and intended to deceive Dr. Fuller, and did deceive him, appears when we consider the testimony of Mrs. Fuller that her husband knew nothing as to what had passed between Carlson and the owners of the stock, and was ignorant of the fact that Carlson had actually purchased the stock, under the option, for $5,000 less than he had represented the price to be; that Dr. Fuller wanted to buy it for less than $20,000, and Carlson told him that it could not be done, and that finally Carlson obtained the $50 in cash, and afterwards the check for $10,000. Was he deceived by the representation? Mrs. Fuller testified : “Dr. Fuller said, 'Charles, this is a great thing, that we are getting this Traction together. It will be a great thing to own this stock with you — just the two of us.’ And Mr. Carlson said, 'Tes, and we don’t want to let this matter get out in town.’ I said, 'For what reason, Mr. Carlson?’ He said, 'Why, don’t you know that if Dr. Fuller was thought to be in the transaction, they would think I was “putting one over them” ?’ This was the first time I had ever heard the expression. He said, 'It is all right after a few weeks. We can mention that the doctor is in it; but just at present we won’t say anything about it at all.’ And then he asked me to be very careful about what I said. And he told me later not to let anything get out.”

Carlson did not like the idea of the doctor giving him his check for the $50, but insisted that the check should be made payable to some one else who could have it cashed. The jury might well have inferred from all this secrecy and suppression of the facts, and especially of the connection of Dr. Fuller with the transaction, that Carlson feared, if it became'known that Dr. Fuller was his copartner, he might find out what had been paid for the property, and the efforts of Carlson to cheat and defraud him might be foiled. That Dr. Fuller was actually deceived and that Carlson obtained the money or the check by reason of the deception, clearly appears from the evidence favorable to the State.

It would be useless to dwell long upon tbe phases of tbe evidence which tend to establish several elements of the crime and the guilt of the accused, nor is it necessary that we should point out any conflict in the evidence, because we are not permitted to decide as to its weight. To do so would invade the province of the jury. The evidence is quite as strong as in some cases where convictions of crimes have been sustained by this Court. S. v. Carmon, 145 N. C., 481; S. v. Walker, supra, and cases cited. We refer especially to S. v. Matthews, 121 N. C., 604, which was an indictment for cheating by false pretense. This is the syllabus in that case:

“1. If a person by his acts or conduct induces another to believe that a fact is really in existence, when it is not, and thereby obtains money or property, he comes within the scope of the statutes against false pretenses.

“2. Where on the trial of an indictment for obtaining money under false pretenses there was evidence that the defendant obtained money from the deceased husband of the witness to get an Electropoise, which defendant, claiming to be an agent therefor, had agreed to sell to the husband, and which defendant claimed to be in the express office, when there was, in fact, no Electropoise in such office, and that the defendant kept the money so obtained: Held, that the evidence was sufficient to be submitted to the jury.”

The conduct of defendant when Mrs. Fuller met him in New York at his office, and their conversation, were circumstances' which the jury could consider in addition to evidence already commented upon.

There was no substantial variance, if variance at all, between the allegations of the indictment and the proof. There must, of course, be allegata and probata, and they must correspond. The State cannot by indictment charge a defendant with the commission of one offense and convict him upon proof of another offense. S. v. Gibson, 169 N. C., 318. But that is not what has been done in this case. The charge is that defendant represented that they could not buy the stock, not the stock and something else, at less than $20,000, which was knowingly false, in that he had already contracted to buy it at less than that amount. There was evidence to sustain this charge. U. G. Staton testified: “Dr. D. S. Pace and I owned stock in the Hendersonville Traction Company, and sold the same to C. A. Carlson about the first of November, 1912, and Carlson was to pay us $7,500 in cash when we made the stoclc over to him." Mrs. Fuller testified that in a conversation between Carlson and Dr. Fuller, Carlson said, “David, we can get this Hendersonville Traction Company for $20,000 — we can go into it together and ■own all the stoclc jointly.” Defendant, in his testimony, also referred to the transaction as one for the purchase of the stock of the Traction Company. His language was: “I said Staton would sell the stock for $20,000.” There is plenary evidence that all tbe representations were false, as we have shown and as appears from the testimony of Mrs. Fuller. It cannot be successfully contended that there is no evidence that defendant was deceived by the false representation and was thereby induced to part with his money, and that he was greatly impoverished by the conduct of the defendant, not being able to attend his brother’s funeral because of the lack of money with which to pay his expenses. This is mentioned to show how easily he became the prey of the defendant’s duplicity and deceit, if the evidence of Mrs. Fuller is believed. There is much of this evidence that he contradicted, but the jury has settled the conflict of evidence against him.

The motion in arrest of judgment was properly overruled.

The indictment is drawn according to approved precedents. It alleges that the defendant did falsely pretend:

1. That the stock of the Hendersonville Traction Company, a corporation, could be purchased for $20,000, and no less.

2. That he, the said C. A. Carlson, had $10,000, and that if the said David J. Fuller would furnish the other $10,000, he, C. A. Carlson, would purchase all of the stock in the Hendersonville Traction Company and that they would hold it jointly, and unincumbered.

And these representations are thus negatived:

1. That the stock of said Traction Company was not held at $20,000, but that he, the said Carlson, had at the time of making said representation an option on all of said capital stock of said Hendersonville Traction Company for the sum of $16,000.

2. That he did not have $10,000, or any sum, to use in the purchase of stock in said Hendersonville Traction Company.

It is true that the indictment should negative by special averment the truth of the pretense alleged, 19 Cyc., 426; but there is such an averment in this bill, and the allegation of the representation and its falsity is sufficient, even within the principle stated in the eases cited by the defendant. S. v. Pickett, 78 N. C., 458; S. v. Lambeth, 80 N. C., 393; S. v. McWhirter, 141 N. C., 809, and in Rex v. Perrott, 2 Maule & Selwyn, 379.

Every indictment must be certain to a general intent. It must.state all the facts and circumstances which constitute the offense with such certainty and precision that the defendant may be enabled to see whether they constitute an indictable offense. The object of an indictment is. to inform the prisoner with what he is charged, as well to enable him to make his defense as to protect him from another prosecution for the same criminal act. It should, therefore, be reasonably specific and certain in all its material averments, S. v. Mill, 79 N. C., 656; S. v. Lambeth, supra. Within this rule, the particulars of the representation and its falsity are plainly stated, so that tbe defendant must bave been apprised of tbe nature of tbe crime with wbicb be was charged.

There are some matters called to our attention wbicb are irrelevant to tbe question involved. Tbe stock without tbe plant or assets of .the company would be valueless, as tbe former is issued and based upon tbe latter, and tbe parties must bave supposed that when they were buying stock they were, to become tbe real owners of tbe company’s property to tbe extent that there was no exception from tbe transfer. But that is immaterial, as tbe only question is whether defendant made tbe representation as to tbe stock knowing it to be false, and did be thereby deceive Dr. Fuller and obtain bis money. This issue was raised by tbe indictment and tbe plea, and there was evidence to sustain tbe verdict. S. v. Matthews, 121 N. C., 604.

There is no error in tbe record, and it will be certified accordingly.

No error.