State v. . Freeman , 172 N.C. 925 ( 1916 )

WALKER, J., dissents. The defendant was charged with giving a check for $107.06 on the Bank of Cape Fear, N.C. knowing that he had no funds in said bank. The statute creating the offense reads as follows: "If any person, with intent to cheat and defraud another, shall obtain money, credit, goods, wares, or anything else of value by means of a check, draft, or order of any kind upon any bank, person, firm, or corporation not indebted to drawer, or where he has not provided for the payment or acceptance, and the same be not paid upon presentation, he shall be guilty of a misdemeanor, and upon conviction shall be fined or imprisoned, or both, at the discretion of the court." Pell's Revisal, sec. 3434b.

In apt time the defendant made a motion to nonsuit upon the ground that the evidence did not show that he obtained anything of value within the purport of the statute. The testimony tends to prove that the check was given to pay freight on a car-load of lumber, which freight amounted to $107.06; that the check was taken as cash and the car-load of lumber turned over to him.

We are of opinion this is substantially a thing of value within the meaning of the statute. Defendant moved to dismiss the warrant for the reason that the recorder's court had no jurisdiction, and that the Superior Court could only acquire jurisdiction by bill of indictment. The offense as defined by the statute is a misdemeanor and punishable by fine or imprisonment, or both, at the discretion of the court.

The case is distinguished from that of S. v. Hyman, 164 N.C. 411, which was a charge of perjury. In that case the Court pointed out that though the statute styled the offense a misdemeanor, yet at common law it was a felony, and the statute itself made it punishable by imprisonment in the State Prison, and, therefore, having the actual grade of a felony, though called a misdemeanor, it was held that an offense under the statute could only be prosecuted by an indictment found by a grand jury. The case is within the rulings in the following cases: S. v. Dunlap, 159 N.C. 491; S.v. Shine, 149 N.C. 480; S. v. Jones, 145 N.C. 460; S. v. Lytle,138 N.C. 738.

The motion in arrest of judgment was properly denied. We (927) think the warrant sufficiently charges the offense created by the statute and also informs the defendant of the offense with which he is charged.

No error.