State v. . Holmes

Ashe, J. It is unnecessary for us to consider the question of new trial as we are of the opinion that there was error in the ruling of- the court below on the motion in arrest of judgment. The defendant is indicted under section 67, chapter 32, Battle’s Revisal. There have been a good many cases decided by this court of indictments under that section, and while there has been some differences in the interpretations given to it, the court seems to have settled down upon the case of the State v. Phifer, 65 N. C., 321, as giving the true construction of what is meant by false pretenses. In that case Reade, J., in án able and well considered opinion, held the “ rule to be 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 words or in acts, by which one man obtains value from another, without compensation, is a false pretense indictable under our statute.” And this case has been followed and cited with approval by the cases of State v. King, 74 N. C., 177; State v. Jones, 70 N. C., 75 and State v. Young, 76 N. C., 258. This construction is fortified by the authorities of Archbold and Bishop who hold that an opinion, a falsehood, a false excuse or false affirmation is not a false pretense in the meaning of the English statute of 30 Geo. II, which-is similar to ours, but that there must be a false representation of an existing fact made for the purpose of in *609 ducing the prosecutor to part with his property. Arch. Cr. Pl., 246, a; Bish. Cr. Law, §§ 408,431. For instance, if a man falsely pretends that he is the servant of another and has been sent by his master for certain goods, and obtains them; or one buys goods from a merchant and says he has no money with him, but has a deposit in bank and gives a check for the price, and it turns out that he has no money there; these and such false representations of existing facts are what is meant in the statute by false pretences, and they must be set forth in the indictment with sufficient certainty, and some or all of them must be negatived by specific averments. Arch. Cr. Pl., 246-47. In this indictment there is no averment of any false pretense, but only of a falsehood, a false affirmation, for which the defendant is liable in a civil action. If such a falsehood, were indictable, then, instead of all the actions which have been brought for deceits and false warranties, the defendant should have been indicted for obtaining goods or property by false pretences. In Lambeth’s case, 80 N. C., 393, the judgment was arrested by the court upon the ground of uncertainty in the aver-ments of the bill of indictment, but even in that case if the particulars on which the horse was alleged to be not “ all right ” had been specifically and definitely set forth, the judgment should have been arrested for the reasons assigned in this opinion. Error. Reversed.