State v. Yancey

Seawell, J.

A careful examination of tbe record fails to disclose any evidence tbat tbe defendant Yancey made to any of tbe partners, Person, Bynum or Eiddle, tbe representation which is tbe gravamen of tbe indict-mentTbat be bad authorized bis eodefendant Peoples to buy tobacco for him, or for them jointly, and to draw drafts upon Yancey in payment therefor, or sign checks in bis name. There is manifest not merely a substantial variance between tbe allegation and the proof which., alone, would be fatal, but a failure of proof with resjoect to commission of the crime itself. S. v. Ridge, 125 N. C., 655, 34 S. E., 439.

The ratio procedendi of the prosecution suggests a departure from the original objective and an effort to convict the defendants of a conspiracy to defraud, or some unlabeled misconduct in connection with the transactions which seem to cénter around the activities of Peoples. The trial, therefore, took a wide range, the prosecution resorting freely to circumstantial evidence to prove the essential fact of the misrepresentation,— one which, if it existed at all, must necessarily, under the terms of the indictment, have been made in words, — suggesiio falsi, rather than sup-pressio veri, if the latter, under any principle, may be applied in a criminal case under G. S., 14-100, without positive conduct of the accused equivalent to a naked lie. S. v. Matthews, 121 N. C., 604, 28 S. E., 469.

The nearest approach to proof by this method is in the evidence of J. M. Riddle. After stating that Yancey was present when Peoples signed the check in payment for the tobacco in Yancey’s name, the witness qualified that statement by saying that “he had just come in or gone out” (of the office) or at least he was “right there close in the warehouse or office, one,” and denied saying he was “right there,” meaning the office. This testimony falls short of that necessary to impute to Yancey a knowledge of the act of Peoples, or of conduct on his part indicating its adoption as a fraudulent device. S. v. Baker, 199 N. C., 578, 155 S. E., 249.

Expressions like “they” — apparently involving Yancey in the purchase of the tobacco, were modified on cross-examination to mean Peoples or “Yancey or Peoples.” There does not appear to have been made to this witness any representation of the kind charged in the indictment, and neither Person or Bynum have testified that any was made to him.

There could be no corroborating circumstances where there is nothing to corroborate.

There are a number of assignments of error with regard to the admission of evidence, some of which we find to be meritorious; but in view of the conclusion reached it is unnecessary to discuss them.

The demurrer to the evidence and motion for judgment of nonsuit should have been allowed^ and the judgment to the contrary is

Reversed.