State v. Cronin

• Decision Date: 01 February 1980
• Docket Number: No. 96,96
• Citation: 299 N.C. 229,262 S.E.2d 277
• Parties: STATE of North Carolina v. John Jason CRONIN.
• Court: North Carolina Supreme Court

Page 277

262 S.E.2d 277

299 N.C. 229

STATE of North Carolina v. John Jason CRONIN.

No. 96.

Supreme Court of North Carolina.

Feb. 1, 1980.

Rufus L. Edmisten, Atty. Gen., by William F. O'Connell, Sp. Deputy Atty. Gen., and Robert R. Reilly, Asst. Atty. Gen., for the State.

Aldridge, Seawell & Khoury, by G. Irvin Aldridge and Daniel D. Khoury, Manteo, for defendant-appellee.

BRANCH, Chief Justice.

Defendant first assigns as error the trial court's failure to dismiss the charges against him. Defendant contends that the court should have allowed his motion made at the close of the State's evidence to dismiss the bill of indictment for failure to charge every essential element of the offense of obtaining property by false pretenses.

Initially, we note that since defendant contended that the bill of indictment failed to charge an offense, he should have moved to dismiss pursuant to G.S. 15A-954(a)(10) which by virtue of the provisions of G.S. 15A-952(d) may be made at any time during the trial. Nevertheless, we have elected to consider this assignment of error.

The indictment in the present case reads as follows:

THE JURORS FOR THE STATE UPON THEIR OATH PRESENT that on or about the 31 day of March, 1978, in Currituck County John Jason Cronin wickedly and feloniously devising and intending to cheat and defraud The Bank of Currituck, a banking corporation, with force and arms at and in the county aforesaid, unlawfully, knowingly, designedly and feloniously did unto The Bank of Currituck, a banking Corporation, falsely pretend that he, the said, JOHN JASON CRONIN, was purchasing a new 1977 Marshfield, Doral Model mobile home having a value of Ten Thousand Eight Hundred Fifty and No/100 Dollars ($10,850.00) by making a Five Thousand Dollar ($5,000.00) cash downpayment on said mobile home and financing the remaining balance through a bank loan with The Bank of Currituck, a banking corporation, whereas in truth and in fact, he, the said, JOHN JASON CRONIN, was purchasing a fire damaged mobile home having a value of Two Thousand Five Hundred and No/100 Dollars ($2,500.00). By means of which said false pretense, he, the said, JOHN JASON CRONIN, knowingly, designedly and feloniously, did then and there unlawfully obtain from the said The Bank of Currituck, a banking corporation, the following goods and things of value, the property of The Bank of Currituck, a banking corporation, to wit: currency of the United States in the value of Five Thousand Seven Hundred Four and 54/100 Dollars ($5,704.54), with intent then and there to defraud, against the statute in such case made and provided, and against the peace and dignity of the State.

G.S. 15A-924(a)(5) requires that every bill of indictment must contain:

A plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant's commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation.

In State v. Greer, 238 N.C. 325, 77 S.E.2d 917 (1953), Parker, J. (later Chief Justice), in considering the validity of a bill of indictment wrote:

The authorities are in unison that an indictment, whether at common law or under a statute, to be good must allege lucidly and accurately all the essential elements of the offense endeavored to be charged. The purpose of such constitutional provisions is: (1) such certainty in the statement of the accusation as will identify the offense with which the accused is sought to be charged; (2) to protect the accused from being twice put in jeopardy for the same offense; (3) to enable the accused to prepare for trial, and (4) to enable the court, on conviction or plea of Nolo contendere or guilty to pronounce sentence according to the rights of the case. (Citations omitted.)

Id. at 327, 77 S.E.2d at 919.

The crime of obtaining property by false pretenses is defined by G.S. 14-100, which as amended states in part:

(a) If any person shall knowingly and designedly by means of any kind of false pretense whatsoever, whether the false pretense is of a past or subsisting fact or of a future fulfillment or event, obtain or attempt to obtain from any person within this State any money . . . or other thing of value with intent to cheat or defraud any person of such money . . . or other thing of value, such person shall be guilty of a felony . . ..

In 1975 G.S. 14-100 was amended, effective 1 October 1975, to alter the law in two significant respects. First, the amendment makes a false representation "of a past or subsisting fact or of a future fulfillment or event" punishable under the statute. The statute formerly required that the false representation be of a subsisting fact. See State v. Agnew, 294 N.C. 382, 241 S.E.2d 684, Cert. denied, 439 U.S. 830, 99 S.Ct. 107, 58 L.Ed.2d 124 (1978); State v. Knott, 124 N.C. 814, 32 S.E. 798 (1899); State v. Phifer, 65 N.C. 321 (1871). Second, the statute now includes in the definition of the crime an Attempt to obtain something of value with an intent to defraud. Formerly, to commit the crime defendant must have actually obtained something of value as a result of his false pretense. See State v. Davenport, 227 N.C. 475, 42 S.E.2d 686 (1947). As observed by Judge Mitchell writing for the Court of Appeals, this interpretation of the statute as amended is technically in conflict with its title, "Obtaining property by false pretenses." Nevertheless, captions of a statute cannot control when the meaning of the text is clear. Dunn v. Dunn, 199 N.C. 535, 155 S.E. 165 (1930). Here the Legislature, by the unambiguous language of the 1975 amendment, clearly intended to broaden the scope of the proscribed activity in the manner set forth above. However, we find nothing in the 1975 amendment which indicates that the Legislature intended to alter the definition of false pretense in any other respect.

Defendant in the instant case challenges the indictment for its failure to allege: (1) that defendant did in fact deceive the Bank of Currituck; and (2) that defendant obtained property from the Bank of Currituck without compensation. We will consider these contentions seriatim.

Defendant relies heavily upon the case of State v. Whedbee, 152 N.C. 770, 67 S.E. 60 (1910), in support of his contention that the bill of indictment in instant case was fatally defective because there was no specific allegation that defendant's false representations did in fact deceive the bank. In Whedbee the bill of indictment alleged that the defendant had knowingly made a series of misrepresentations about a certain corporation, by means of which he obtained a promissory note from W. C. Heath with intent to cheat and defraud W. C. Heath. This Court held that the bill of indictment was fatally defective in failing to state the causal connection between the false representation and the execution of the note by W. C. Heath. In so holding, the Court stated:

. . . it does not appear by direct or express allegation, or even by implication, what causal connection the false statements had with the note, or how W. C. Heath was induced thereby to make and endorse the note. We must see by the very indictment itself, not only that false representations were made, but, as we have already said, that they were calculated to deceive W. C. Heath, and that by the deception he was actually induced to give the note. The indictment, therefore, fails at its vital point.

Id. at 775, 67 S.E. at 63. The Court also quoted with approval from State v. Fitzgerald, 18 N.C. 408 (1835), the following:

. . . it seems to us essential, in a case where there is no obvious connection between the result produced and the falsehood practiced, that the facts should be set forth which do connect the consequence with the deceitful practice. (Italics removed.)

152 N.C. at 777, 67 S.E. at 64.

Defendant does not point to later decisions by this Court which tend to support his position; however, we find that the Court of Appeals has recently addressed the specific question under consideration. In State v. Hinson, 17 N.C.App. 25, 193 S.E.2d 415 (1972), Cert. denied, 282 N.C. 583, 194 S.E.2d 151 (1973), Cert. denied, 412 U.S. 931, 93 S.Ct. 2762, 31 L.Ed.2d 159 (1973), the Court of Appeals squarely addressed the question presented here and held that it was not necessary to allege specifically that the victim was in fact deceived by the false pretense when the facts alleged in the bill of indictment are sufficient to suggest that the surrender of something of value was the natural and probable result of the false pretense. Accord, State v. Hines, 36 N.C.App 33, 243 S.E.2d 782, Cert. denied, 295 N.C. 262, 245 S.E.2d 779 (1978). This holding in Hinson was based upon the holding of this Court in State v. Dale, 218 N.C. 625, 12 S.E.2d 556 (1940).

In Dale the defendant moved to quash the indictment charging false pretense because it failed to show any causation between the alleged false representation and the obtaining of something of value. In denying the motion to quash, the Court speaking through Seawell, J., stated:

The principle applied by the Court in State v. Whedbee, 152 N.C. 770, 67 S.E. 60, 27 L.R.A., N.S., 363, we do not understand to be applicable where the surrendering of the money or other thing of value is the natural and probable result of the false pretense. Certainly, a mere "lie," which of itself and upon the face of the pleading offers no inducement to a man to give up his money, would not undergird the crime, but it may be seen as an important element in obtaining money under false pretense, when the latent connection is brought out. . . . The facts alleged in the indictment here, relating to the misrepresentation, Ex proprio vigore, are such as to imply causation, since they are obviously calculated to produce the result.

Id. at 641, 12 S.E.2d at 565. See State v....