State v. Burrows

• Decision Date: 31 December 1850
• Citation: 33 N.C. 477,11 Ired. 477
• Court: North Carolina Supreme Court
• Parties: THE STATE v. ANTHONY BURROWS.

11 Ired. 477

33 N.C. 477

THE STATE

v.ANTHONY BURROWS.

Supreme Court of North Carolina.

December Term, 1850.

The provisions of the Act of 1811, ch. 814. Rev. Code, Revised Statutes, ch. 34, sec. 61, punishing the cheating by false tokens, &c, do not apply to the case of conveyances of lands.

Where the charge intended to be made in such an indictment is, that the defendant intended to cheat the plaintiff out of twenty acres of land, the excess in quantity over thirty-five acres, the indictment should expressly aver that there was, in fact, such an excess of twenty acres.

Where the true ground of complaint was, that the defendant, by means of a forged paper, induced the prosecutor to execute a deed for 35 1/2 acres of of land instead of 55 1-2 acres, thereby defrauding the prosecutor, the indictment should distinctly aver this fraudulent purpose; but, though this be a fraud, it does not come within the definition of any crime or misd??meanor, known either to the common or statute law.

Appeal from the Superior Court of Law of Martin County, at the Fall Term 1850, his Honor Judge BAILEY presiding.

The defendant was tried upon the following indictment:

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                ¦STATE OF NORTH CAROLINA,¦)¦Superior Court of Law,  ¦
                +------------------------+-+------------------------¦
                ¦Martin County,          ¦)¦Fall Term 1849.         ¦
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The jurors for the State upon their oath present, that Anthony Burrows, late of the County of Martin, on the first day of May, in the year of our Lord one thousand eight hundred and forty nine, with force and arms, at and in the County of Martin aforesaid, unlawfully, knowingly and designedly, a certain forged paper in writing as a true paper in the proper hand-writing of one Thomas R. Cofield, falsely, fraudulently and deceitfully did exhibit to one Eli Cherry (the said Eli Cherry having theretofore agreed to sell to the said Anthony Burrows a tract of land, situate in the County of Martin at the price of one dollar an acre, and both the said Eli Cherry and Anthony Burrows having requested the said Thomas R. Cofield to survey the said tract, in order to ascertain the number of acres contained, and the said Thomas R. Cofield having surveyed the same and made a plat, as requested, and delivered the same to the said Anthony Burrows, to be exhibited to the said Eli Cherry, before the execution of a deed, whereby the said tract of land was to be conveyed from the said Eli Cherry to the said Anthony Burrows,) in and by which false and forged writing it was made to appear by the writing thereof that the said tract of land had been surveyed by the said Thomas R. Cofield, and contained only thirty-five and one half acres of land, by reason of which said forged paper the said Anthony Burrows, on the day aforesaid at and in the County aforesaid, unlawfully, knowingly and designedly, falsely, fraudulently and deceitfully did obtain a deed of conveyance from the said Eli Cherry for the tract of land aforesaid, wherein and whereby the said tract of land was described as containing thirty five and one half acres of land at the price of thirty-five dollars and fifty cents, and, for payment thereof to the said Eli Cherry, the said Anthony Burrows then and there executed his bond to the said Eli Cherry for the said sum of thirty five dollars and fifty cents, with the intent then and there to cheat and defraud the said Eli Cherry of twenty acres of said tract of land of the value of twenty dollars; Whereas, in truth and in fact, the said plat and survey so made as aforesaid by the said Thomas R. Cofield, when delivered to the said Anthony Burrows by the said Thomas R. Cofield as aforesaid, did represent the said tract of land to contain fifty-five and one half acres of land, and the said Anthony Burrows, after the said plat came to his hands and before he exhibited it to the said Eli Cherry as aforesaid, at and in the County aforesaid, unlawfully, knowingly, designedly, falsely, fraudulently and deceitfully did alter and change the writing of the said Thomas R. Cofield on the said plat, so that the said tract, by means of the said alteration and change, was described as containing only thirty five and one half acres, to the great damage and deception of the said Eli Cherry, to the evil example of all others in the like case offending, against the form of the statute in such cases made and provided, and against the peace and dignity of the State.”

On the trial of this indictment, upon the plea of not guilty, the evidence was, that the prosecutor Eli Cherry owned a tract of land in the County of Martin, and that he agreed with the defendant to sell the same to him at one dollar per acre--that they agreed upon the boundaries, but did not know the quantity, and selected one Thomas R. Cofield to survey the same to ascertain the number of acres. It was further agreed, that, after the survey was made, and the number of acres ascertained by a plat, the surveyor should hand the plat, which he had made, to the defendant, in order to procure a deed for the said land from the prosecutor--that, in pursuance of the said agreement, Cofield, (accompanied by the prosecutor and the defendant,) surveyed the said tract of land, made a plat by lines, words and figures, and found that it contained fifty five and one half acres of land--that the said plat contained within its course and distance, and about the middle thereof, the figures and letter 55 1/2 A.--that the plat, with these figures upon it, was handed to the defendant--that, while the plat was in the defendant's possession, he said to a witness, “How easy it would be to alter the figure 5 into a 3, and that he would do so; and the witness must say nothing about it.” The defendant afterwards handed the plat to the prosecutor, with the first figure 5 of the figures 55 1/2 chauged into the figure 3?? so as to represent by the said figures 35 1/2 acres of land, instead of 55 1/2 acres. The prosecutor examined the same, and believing the land contained but 35 1/2 acres, and believing that was the plat made by the surveyor, Cofield, and having no suspicion that it had been altered, agreed with the defendant to execute a deed to him for the land embraced within the said plat. A paper writing was prepared, conveying to the defendant the land embraced within the courses and distances of the said plat, and described as conveying thirty-five and one half acres only, when it conveyed fifty five and one half acres, in consideration of thirty five dollars and fifty cents paid by the defendant to the prosecutor. The courses and distances mentioned in the deed were the same as those mentioned in the plat, with the exception of the distance of one line, as to the number of poles in the said line The number of poles in the said line was...