State v. . Mikle

Ashe, J. (after stating the facts). The first ground assigned for a new trial, is more properly to be considered under the motion for the arrest of judgment. The second ground is untenable, for the testimony of Motny and Wilson, considered together, fully sustains the averments in the bill. There was no variance, unless the jury should have *846 discarded the testimony of both of those witnesses, and accepted that of the defendant, as the correct statement of the transaction. If they had done so, then there was a variance, but the jury believed the testimony of the first two witnesses, as is shown by their verdict. The new trial was therefore properly denied on that ground. The first ground is the same as that urged in arrest of the judgment, that the bill of indictment does not set forth such a state of facts, as constitutes the crime of “false pretence.” The bill, we think, is well drawn, and contains all the aver-ments necessary to constitute the offence of “false pretence.” It charges that the defendant unlawfully, knowingly, and designedly, with intent to cheat and defraud Motny Bros., did falsely represent to them that he had an order from Robert Wilson to obtain goods from them on the credit of said Wilson, and that by means of the false representation, he did obtain goods from them, and they were charged to Wilson. It could make no difference, whether the order which the indictment charges the defendant falsely pretended to have from Wilson, was verbal or written. If A says to B, “tell C to let you have a pair of boots and charge to me,” it is as much an order, as if A had written to B to let 0 have the boots and charge them to him. An order, according to Webster, is a “mandate;” “an authoritive direction.” When then, the indictment charges that the defendant falsely represented that he had an order from Wilson to obtain goods from Motny Bros., it was a false representation of a “ subsisting fact,” and when it was made to obtain goods from Motny Bros., and goods were thereby obtained, with intent to cheat and defraud Motny Bros., the criminal offence is properly made out. The rule is thus laid down by Reads, Judge, in the case of State v. Phifer, 65 N. C., 321, “that a false representation of a subsisting fact, calculated to deceive, and which does deceive, and is intended to deceive, whether the representation be in writing or in words, by which one man obtains value from another, *847 without compensation, is a false pretence, indictable under our statute.” State v. Eason, 86 N. C., 674; State v. Mathews, 91 N. C., 635, and the decision in these cases is fully sustained by Mr. Bishop, in his work on criminal law. There is no error. Let this be certified to the Superior Court of Ashe county, that the case may he proceeded with, according this opinion and the law. No error. Affirmed.