State v. Freeman
| Decision Date | 15 November 1916 |
| Docket Number | 383. |
| Citation | 90 S.E. 507,172 N.C. 925 |
| Parties | STATE v. FREEMAN. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Davidson County; Cline, Judge.
J. O Freeman was convicted of the statutory offense of giving a check on a bank, knowing that he had no funds in the bank and he appeals. No error.
The warrant, omitting the formal parts, was as follows:
Whereas B. I. Harrison hath complained on oath before the undersigned, a justice of the peace in and for said county, that on or about the 30th day of December, 1913, also on January 12, 1914, at and in said county, unlawfully and willfully the said J. O. Freeman, of the firm of the Freeman Company, and acting as its agent, with intent to cheat and defraud, gave to B. I. Harrison, agent of Carolina & Yadkin Railway Company, a worthless check for $107.06 in payment of freight on car of lumber; which check was protested for nonpayment on 1--23--1914, by the Bank of Cape Fear, Dunn, North Carolina. The said J. O. Freeman guaranteed that the funds for payment were in said bank, all of which was false, and did commit the said crime and offense, contrary to the statute in such case made and provided and against the peace and dignity of the state.
Dallas Zollicoffer, of High Point, and Jerome & Jerome, of Greensboro, for appellant.
The Attorney General and T. H. Calvert, Asst. Atty. Gen., for the State.
The defendant was charged with giving a check for $107.06 on the Bank of Cape Fear at Dunn, N. C., knowing that he had no funds in said bank. The statute creating the offense reads as follows:
"If any person, with intent to cheat and defraud another, shall obtain money, credit, goods, wares, or anything [else] of value by means of a check, draft or order of any kind upon any bank, person, firm or corporation, not indebted to drawer, or where he has not provided for the payment or acceptance, and the same be not paid upon presentation, he shall be guilty of a misdemeanor, and upon conviction shall be fined or imprisoned, or both, at the discretion of the court." Pell's Revisal, § 3434b.
In apt time the defendant made a motion to nonsuit upon the ground that the evidence did not show that he obtained anything of value within the purport of the statute. The testimony tends to prove that the check was given to pay freight on a carload of lumber, which freight amounted to $107.06; that the check was taken as cash and the carload of lumber turned over to him.
We are of opinion this is substantially a thing of value within the meaning of the statute. Defendant moved to dismiss the warrant for the reason that the recorder's court had no jurisdiction, and that the superior court could only acquire jurisdiction by bill of indictment. The offense as defined by the statute is a misdemeanor and punishable by fine or imprisonment, or both, at the discretion of the court.
The case is distinguishable from that of State v. Hyman, 164 N.C. 411, 79 S.E. 284, which was a charge of perjury. In that case the court pointed out that though the statute styled the offense a misdemeanor, yet at common law it was a felony, and the statute itself made it punishable by imprisonment in the state prison, and therefore, having the actual grade of a felony, though called a misdemeanor, it was held that an offense under the statute could only be prosecuted by an indictment found by a grand jury. The case is within the rulings in the following cases: State v. Dunlap, 159 N.C. 491, 74 S.E. 626; State v. Shine, 149 N.C. 480, 62 S.E. 1080; State v. Jones, 145 N.C. 460, 59 S.E. 117; State v. Lytle, 138 N.C. 738, 51 S.E. 66.
The motion in arrest of judgment was properly denied. We think the warrant sufficiently charges the offense created by the statute, and also informs the defendant of the offense with which he is charged.
No error.
The proceeding should have been dismissed on the motion of the defendant, as the original court had no jurisdiction, and the superior court, therefore, acquired none derivatively. The only way in which the latter court could get jurisdiction of the case was by indictment of the grand jury in accordance with the express mandate of the Constitution protecting the citizen against prosecution for any criminal offense, except a petty misdemeanor, save by presentment or indictment. The crime with which defendant was charged is not such a misdemeanor, but has, on the contrary, a very felonious flavor. It is not called a false pretense in the statute, but it is one in reality as the statutory definition of it contains every element of the offense known as false pretense, or cheating by false tokens. It is "the obtaining of money, credit, goods, wares, or anything of value, with intent to cheat and defraud another, by means of a false check, draft, or order of any kind on a bank." In other words, the giving of a check drawn on a bank where the drawer has no funds with which to pay it, and thereby receiving for it something of value. This is, in substance and effect, though not formally, by the law, a false pretense. It is just as heinous in quality as cheating by any other false token or pretense. The statute is merely a slight extension of the common law, as will appear by the following history of the crime of "false pretense" as given by an able and scholarly text-writer (Prof. Mikell): The crime of cheating was not very clearly defined in the early common law; the term "cheating" being applied to the defrauding, and even to the attempt to defraud, by means of any artful device whatever. Subsequently cheats were divided into two classes: First, those affecting the government, and, second, those affecting individuals. In the former class of cases the use of any fraudulent device was sufficient to constitute the crime. In the latter class of cases a false token was necessary. In modern times cases belonging to the first of these classes, while still indictable, have ceased to be denominated cheats, and that term is now restricted to cheats by false tokens. A cheat at common law may be defined as the defrauding of any person by means of a false symbol or token, such as, when not false, is commonly accepted by the public for what it purports to represent. In order to constitute the crime of cheating at common law the token used to defraud must be of such a character as, when not false, is commonly accepted by the public for what it purports to represent. A measure is such a token; therefore to sell a commodity by a false measure is an indictable cheat. General trade-marks having a definite meaning in the trade are also such tokens, and the use of a false trade-mark to defraud a buyer is indictable. Since bank notes pass current, the passing of a false bank note is a cheat, but the passing of a false promissory note of an individual is not, whether it purports to be the note of the person passing it or of another. Since no mere words amount to a token, drawing a check on a bank in which one has no funds, this being but a written promise or statement, is not a cheat at common law. By 33 Hen. VI...
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State v. Yarboro
...time money or other things of value and gives a worthless check "with intent to cheat and defraud another." C. S. § 4283; State v. Freeman, 172 N.C. 925, 90 S.E. 507. cases of this kind, all the elements of deceit and fraud must be proven. This has been the universal and accepted law here a......
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...in the superior court upon the warrant. An indictment by the grand jury was not necessary for trial in the superior court. State v. Freeman, 172 N.C. 925, 90 S.E. 507, and cases In the affidavit upon which the warrant was issued, it is charged "that on or about the 10th day of December, 192......