State v. . Burke , 108 N.C. 750 ( 1891 )

The defendant is charged with the offense of false pretense, in violation of the statute (The Code, sec. 1025). The indictment charges that the defendant, at, etc., "unlawfully and knowingly devising and intending to cheat and defraud of, did then and there unlawfully, knowingly and designedly, falsely pretend to J. W. McRae that a certain mule which he, the said J. M. Burke, proposed to trade to the said J. W. McRae was sound and worked well and would not kick, whereas, in truth and fact, mule was not sound, would not work well and would kick, as he, the said J. M. Burke, then and there well knew, by color and means of which said false pretense and pretenses the said J. M. Burke did then and there unlawfully, knowingly and designedly obtain from the said J. W. McRae $100, being then and there the property of the said J. W. McRae, with intent to cheat and defraud, to the great damage of the said J. W. McRae, contrary," etc.

The defendant appeared and moved to quash the same. The court allowed the motion, and the Solicitor for the State having excepted, the State appealed to this Court. The indictment is not very formal and precise. There is some unnecessary repetition and redundancy in charging the offense that might well be omitted, but it serves every essential purpose. The false pretense, and the purpose to defraud thereby, are charged in the words of the statute, and clearly.

The word "said," which, strictly, ought to appear in the indictment next before the word "mule," at the end of the other words, "whereas, in truth and fact," is obviously and sufficiently implied from the connection and purpose plainly appearing. The inadvertent omission does not affect the substance or prejudice the defendant.

The false representations as to certain qualities of the mule certainly constituted false pretense when made, as charged, to defraud. They are not the mere "tricks of trade," bluster, puffs and empty boast on the part of one putting his property on the market. They were seriously made with particular motive in connection with a proposition to sell the mule for a price to be increased by reason of them and the confidence they gave rise to. As charged, they were made in business earnest on the part of the defendant and so accepted and acted upon by the prosecutor, and, as charged, they were made with the positive intent to defraud. Thus the offense is sufficiently charged. S. v. Hefner, 84 N.C. 751; S. v. Munday,78 N.C. 460; S. v. Mickle, 94 N.C. 843; S. v. Sherrill, 95 N.C. 663. It was not necessary to charge or prove an intent to defraud any particular person. The Code, sec. 1025. There is error.

Reversed.

Cited: S. v. Skidmore, 109 N.C. 796; S. v. Flowers, ib., 843; S. v.Mangum, 116 N.C. 1001, 1002; S. v. Ridge, 125 N.C. 659; S. v. Ratliff,170 N.C. 709; S. v. Brown, ib., 715.

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