State v. Dale

• Decision Date: 20 December 1940
• Docket Number: 507.
• Citation: 12 S.E.2d 556,218 N.C. 625
• Parties: STATE v. DALE et al.
• Court: North Carolina Supreme Court

12 S.E.2d 556

218 N.C. 625

STATE v. DALE et al.

No. 507.

Supreme Court of North Carolina

December 20, 1940

The appealing defendant, Fred E. Dale, alias Jimmy Dale, Mrs Fred E. Dale, alias Rene Duffy, and Dr. W. E. Wishart, were tried at the July Term, 1940, of Mecklenburg Superior Court upon a bill of indictment reading as follows:

"The Jurors for the State upon Their Oath Present, That: Fred E Dale, alias Jimmy Dale, Mrs. Fred E. Dale, alias Rene Duffy and Dr. W. E. Wishart, late of the County of Mecklenburg, on the 1st day of April, 1938, with force and arms, at and in the County aforesaid unlawfully, wilfully and feloniously conspired, confederated and agreed together to knowingly, devisingly, and intending to cheat and defraud Rufus Bryant of his goods, moneys, chattels and property, and in furtherance of such unlawful, wilful and felonious conspiracy, did then and there unlawfully, wilfully and feloniously, knowingly, devising and intending to cheat and defraud Rufus Bryant of his goods, chattels and property, did then and there unlawfully, wilfully and feloniously and designedly falsely pretend to Rufus Bryant, knowingly, that Mrs. Fred E. Dale, alias Rene Duffy, was pregnant and was going to become a mother of a baby and that Rufus Bryant was the father of the child with which she was pregnant and of which she was to become a mother; whereas, in truth and fact the said Mrs. Fred E. Dale, alias Rene Duffy, was not pregnant and that Rufus Bryant was not the father of the child of which she claimed to be pregnant, and that she was not to become the mother of a baby, as they, the said Fred E. Dale, alias Jimmy Dale, Mrs. Fred E. Dale, alias Rene Duffy, and Dr. W. E. Wishart, then and there well knew to be false, by color and means of which said false pretense and pretenses they, the said Fred E. Dale, alias Jimmy Dale, Mrs. Fred E. Dale, alias Rene Duffy, and Dr. W. E. Wishart did then and there unlawfully, wilfully, feloniously, knowingly and designedly obtain from the said Rufus Bryant, the sum of $2,000.00 in money, being then and there the property of the said Rufus Bryant, with intent to cheat and defraud the said Rufus Bryant and did cheat and defraud the said Rufus Bryant to the great damage of the said Rufus Bryant, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State."

Before pleading to the bill of indictment the defendant, through his counsel, moved to quash the bill of indictment, filing a written motion as follows:

"The defendants, and each of them, move the Court, in apt time, to quash the indictment in this action, for that upon its face it is void as a matter of law, in that:

"1. It charges a crime under the common law, that is classified under the common law as a misdemeanor, and the indictment was found and returned by the grand jury more than two years after the alleged commission thereof, contrary to the statute.

"2. It alleges the consummation of the alleged conspiracy and the commission of a statutory crime, and the alleged conspiracy merges as a matter of law into the statutory crime.

"Wherefore, defendants pray that the indictment be declared void and quashed.

"This July 16, 1940."

Subsequently, a "Supplement or Addition to Motion to Quash" was filed, as follows:

"The defendants, and each of them, by way of supplement or addition to motion to quash of July 16, 1940, allege:

"3. That the count in the bill of indictment charges two separate, independent and distinct offenses, in that the first part of the count charges a conspiracy to defraud one Bryant, and the latter part of the count charges the crime of cheating and defrauding the said Bryant, and the said count is fatally defective for duplicity, and in the event that the State fails to elect the crime upon which it is proceeding against the defendants, the defendants are entitled to have the bill of indictment quashed."

These motions in all of their aspects were denied and the defendant excepted.

The defendant then moved, ore tenus, to quash the bill of indictment upon the ground that on its face it does not allege any criminal offense. This motion was also denied and defendant again excepted.

Thereupon the defendant moved that the court require the Solicitor to elect whether he would proceed on the apparent alleged conspiracy or on the apparent alleged obtaining of money under false pretense. The motion was denied and defendant excepted.

The trial proceeded, and the evidence and its inferences taken in the light most favorable to the State, stated in narrative form and summarized, may be presented as follows:

Betty Austin, a witness for the State, testified that she had begun to date men in hotels for hire in Richmond, Va., and that she continued that practice for several weeks there, then came to Raleigh, North Carolina, for the same purpose, in May, 1938, and soon thereafter filled a date with Jimmy Dale. She went with Dale from Raleigh to Charlotte and then out to his home, 1548 Duckworth Avenue, and met his wife, whose nickname in the home was "Sunny" Dale, and a girl there known as "Boots". She remained in the Dale home about a week during which time she filled dates with men in hotels and apartments, where she was carried by Jimmy Dale. After an absence from Charlotte of two or three months, she returned sometime during the month of August. At that time Jimmy, Sunny, Boots, and a maid were at the Duckworth Avenue house. After witness had been there a couple of days the three of them, that is, Jimmy, Sunny, and the witness, were sitting together in the living room and witness asked Sunny Dale why she was gaining in weight and the reply was that she was going to have a baby. When witness told her that she was under the impression that she could not have children and that she had told her that when she was there before, Sunny Dale told her she was not really going to have a child; that she had had an operation performed to keep her from giving birth to children; that the operation had been performed by Dr. Wishart. "She said she wasn't going to have it herself, but there was an unmarried girl that was going to have a child, and that they were going to take the baby". Sunny Dale said "that she was going to say that it belonged to this old farmer (meaning Rufus Bryant), and the old farmer thought that she was going to have this child." "She didn't tell me the name of the farmer except that his name was Rufus. Both she and Dale talked about it anytime during the day or the evening,--about how they were to have this baby and how they were going to get it. I asked her how in the world she was going to tell this farmer she was going to have a baby if she couldn't, and if she wasn't going to see him any more before the child was born, and she naturally was inclined to be stout and she really gained. She looked like she could have been pregnant and she said that she was going to tell the farmer that the child was an eight-month baby. I was there about three weeks then, and I was there when the child was born."

Witness further testified that before the baby was born Sunny Dale, Jimmy and the witness went up to Charlotte to get a crib from some second-hand furniture dealer there. Dale left them parked in the street and went to see about the baby bed, and while they were there on the street Dr. Wishart came by and spoke to them. Sunny Dale asked Dr. Wishart "when the child was going to be born and he said he was expecting it at any time; that he had examined the mother of the child, and was expecting the child to be born any time. He asked her what she expected to do with it if the old farmer didn't take care of it, and she said she would leave it on some rich man's doorstep if she couldn't take care of it. Dale was not at the car when this was said."

Before the birth of the child the witness asked Sunny how she was going to have this child in the hospital, and supposing this farmer came to see her. She said the girl was going in the hospital under the name of Rene Duffy, and that was how the child was going to be born, and if he came to the hospital he wasn't going to be allowed to see her.

Dale and his wife had an ornamental deer on the mantelpiece on Duckworth Avenue. "Sunny called the deer 'Rufus', and Mr. Dale said, 'Don't call my deer anything like that'."

After the mother of the child went to the hospital the birth of the child was announced in the paper under the name of Mrs. Eugene Duffy. Sunny said the name was wrong and called the paper and tried to correct the name, and it came out again as Gene Duffy, when it was supposed to be Rene Duffy.

During her second stay in Charlotte the witness continued to go to hotels, Dale taking her there. He also took Boots when she was there and Sunny when she was well. She had a short sick spell from over-eating. Also she had gotten both of her eyes blacked from going out on a date with a couple of fellows who were drinking. After the baby was born she began dieting and was really sick in bed for three days.

"Sunny" talked to witness about Rufus Bryant quite a bit, calling him "the old farmer", and when the child was born Bryant sent her some money. Jimmy also talked about it,--how she met this farmer in a hotel, and the first time she met him he had given her $90 and at another time had given her $600 and they had bought the home on Duckworth Avenue and a Terraplane automobile. Witness said that "Sunny" told her the first time she met him in the hotel he asked her why she was doing this way and she told him her mother was ill and she needed the money for her mother; that he believed her and told her he would help her and gave her $90 then, and she stayed with him a while and went back to her and Jimmy's...