State v. Davenport

• Decision Date: 05 June 1947
• Docket Number: 289.
• Parties: STATE v. DAVENPORT et al.
• Court: North Carolina Supreme Court

42 S.E.2d 686

227 N.C. 475

STATE v. DAVENPORT et al.

No. 289.

Supreme Court of North Carolina

June 5, 1947

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

A bill of indictment numbered 2397, charging Roderick Davenport, C.T. Jones, Johnnie Heath and J.R Hunning, with conspiracy to obtain money by means of false pretense and of obtaining money under false pretense, was returned at the August Term, 1944, of Pitt County.

A similar bill, numbered 2403, was also returned against the defendants Roderick Davenport, S.H. Powers, Al Whorton and Wilson Boyles at the same Term of Court, which reads as follows:

"The Grand Jurors Upon Their Oath Present:

"That Roderick Davenport, S.H. Powers, and Al Whorton, and Wilson Boyles, late of the County of Pitt, and on the 24th day of August, A.D., 1944, and prior and subsequent thereto, with force and arms, at and in the County aforesaid, unlawfully knowingly, designedly, wickedly deceitfully, and feloniously, with intent to cheat and defraud, did combine, conspire and plan together among themselves each with the other and with each other to obtain large sums of money from the public in general and Mrs. J.R. Hunning, C.L. Brady, Mrs. Alice Proctor, Bobbie Brady and Billy Brady, in particular, by means of false pretense, contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the State;

"And the Grand Jurors for the State Upon Their Oath do Further Present:

"That afterwards, to-wit: On the day and year aforesaid, the aforesaid Roderick Davenport, S.H. Powers, Al Whorton, and Wilson Boyles, late of the County of Pitt, in pursuance and furtherance of said conspiracy planned and designed, unlawfully, knowingly, designedly, wickedly, deceitfully, and feloniously, with intent to cheat and defraud, did unto Mrs. J.R. Hunning, C.L. Brady, Jrs. Alice Proctor, Bobbie Brady, and Billy Brady, and various and sundry others falsely pretend that they could legitimately lend money at 10 per cent interest per week or sufficiently high rate of interest to justify their paying 5 per cent interest per week on all deposits made with with them and that they were solvent, and that their business and transactions had been investigated and found to be legal, and if deposits were made with them, they would give their checks for the same, which checks would be payable at any time upon presentation and demand, but that for so long a time as their checks were held by the depositors, would be paid 5 percent per week on the amount deposited;

"And in consequence of said false and fraudulent statement and pretenses upon the truth of which said Mrs. J.R. Hunning, C.L. Brady, Mrs. Alice Proctor, Bobbie Brady, and Billy Brady, and various and sundry others relied, the said defendants did then and their obtain from Mrs. J.R. Hunning, the sum of One Thousand ($1,000.00) Dollars; from C.L. Brady the sum of Six Hundred and Fifty ($650.00) Dollars; from Mrs. Alice Proctor the sum of Fifty ($50.00) Dollars; from Bobbie Brady the sum of Sixty ($60.00) Dollars; and from Billy Brady the sum of Twenty Five ($25.00) Dollars, and from various and sundry others large sums of money for the defendants' own personal use and for which they gave their checks payable upon presentation and demand;

"Whereas in truth and in fact, said defendants could not lend out said money in sufficient quantity at a high rate of interest with which to pay said 5 per cent interest per week on said deposits, which fact was well known to said defendants, and at the time said false and fraudulent statements were made, as aforesaid, and in truth and in fact said defendants were not solvent, and their business or transactions were not legal and their checks given to the parties aforesaid, and other depositors, were not good and payable upon presentation and demand as the said defendants did not have sufficient funds on deposit or credit with the banks upon which said checks were drawn with which to pay said checks upon presentation and demand, which facts were well known to the said defendants at the time said false and fraudulent statements were made to the said Mrs. J.R. Hunning, C.L. Brady, Mrs. Alice Proctor, Bobby Brady and Billy Brady, and other depositors, and said false and fraudulent statements were designedly, falsely and fraudulently made by the said defendants for the purpose of deceiving and defrauding and in fact did deceive and defraud;

"By means of said false pretense, the said Roderick Davenport, S.H. Powers, and Al Whorton, knowingly, designedly, and feloniously did then and there unlawfully obtain from Mrs. J.R. Hunning the sum of One Thousand ($1,000.00) Dollars in lawful money and of the value of $1,000.00, the property of Mrs. J.R. Hunning; and did then and there unlawfully obtain from C.L. Brady the sum of Six Hundred Fifty ($650.00) Dollars in lawful money and of the value of $650.00, the property of C.L. Brady; and did then and there unlawfully obtain from Mrs. Alice Proctor the sum of Fifty ($50.00) Dollars, in lawful money, and of the value of $50.00, the property of Mrs. Alice Proctor; and did then there unlawfully obtain from Bobby Brady the sum of Sixty ($60.00) Dollars, in lawful money, and of the value of $60.00, the property of Bobbie Brady; and did then and there unlawfully obtain from Billy Brady the sum of Twenty Five ($25.00) Dollars, in lawful money, and of the value of $25.00, the property of Billy Brady, and did then and there unlawfully obtain from various and sundry others large sums of lawful money, their property, with intent then and there to defraud, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State."

The two cases were consolidated for trial and tried together with the consent and approval of counsel for the defendants.

Before pleading to the bills of indictment, the defendant Roderick Davenport, through his counsel, moved to quash the bills of indictment and filed separate but similar motions as to each bill. The pertinent parts of the motion in No. 2403 read as follows:

" * * * 2. That as to the first count of the bill of indictment, the same is fatally defective for that:

"A. Bill in said count does not set out, or allege any means or plans to be employed by the defendant, or either of them by which any cheat, fraud or fraudulent pretense was to be perpetrated or accomplished against anyone.

"B. The bill in said count does not set out or allege any means, plan, scheme, contrivance, to use, fraud or force, or criminal act or offense, by means of which the defendants or any of them contrived, or conspired against any person, firm or corporation, the public in general, or James R. Worsley, Thad Wooten, J.R. Rouse and W.M. Tripp, in particular, to their damage or otherwise.

"C. That nowhere under any construction alleges any facts which constitute any offense against the criminal law of the State.

"D. As a whole, and in the second count, doesn't aid or strengthen the first count in the matters and things that were complained of.

"3. That as to the second count in the bill of indictment, the same is fatally defective for that:

"(A) Alleges, simply, that the defendants were in the loan business and held themselves out as such, and as being willing to lend such money as they could borrow at 5% per week from Mrs. J.R. Hunning, G.L. Brady, Mrs. Alice Proctor, Bobby Brady and Billy Brady, and from various and sundry others to someone else at the rate of 10% per week, which allegations, proved, could not subject the defendants, singly or collectively to criminal prosecution.

"(B) It alleges that checks issued in carrying on the loan business by the defendants were in fact and in law mere unsecured evidence of debt and demand promissory note payable by the defendants at some Bank in the amount of $1,000 to the lender, Mrs. J.R. Hunning; $650. to the lender, C.L. Brady; $50.00 to the lender Mrs. Alice Proctor; $60. to the lender Bobby Brady, and $25. to the lender Billy Brady, at any time the aforesaid lenders, Mrs. Hunning, C.L. Brady, Mrs. Alice Proctor, Bobby Brady and Billy Brady, or any of them, decided that they did not care longer to receive interest from the defendants at the rate of 5% per week, or 260% per annum, which allegations, proven, could not, in law, subject the defendants, singly or collectively, to criminal prosecution or punishment.

"(C) The bill as a whole, and the first count, does not aid or strengthen the second count, in the matters and things complained of in reference to the second count.

"(D) It nowhere under any interpretation or construction alleges any facts which constitute any offense against the criminal laws of the State.

"4. The bill of indictment as a whole, does not allege any offense against the criminal laws of the State.

"Wherefore, The Defendant, Roderick Davenport, respectfully moves the Court:

"1st. That the first count in the bill of indictment be quashed and set aside.

"2nd. That the second count in the bill of indictment be quashed and set aside.

"3rd. That the bill of indictment as a whole be quashed and set aside."

Both motions were denied and the defendant Davenport excepted.

All the books and other records pertaining to the business of the defendant Davenport, that could be located by the State, were seized by order of the Court, and impounded with the Clerk of the Superior Court of Pitt County, in August, 1944, upon the return of the above bills against the defendants. Such records were made available to the State and the defendant Davenport for use in the trial below.

A summary of the evidence may be stated as follows:

1. The appealing defendant, Roderick Davenport, a college graduate in...