State v. Gibson

• Decision Date: 22 April 1915
• Docket Number: 305.
• Citation: 85 S.E. 7,169 N.C. 318
• Parties: STATE v. GIBSON.
• Court: North Carolina Supreme Court

85 S.E. 7

169 N.C. 318

STATE v. GIBSON.

No. 305.

Supreme Court of North Carolina

April 22, 1915

Appeal from Superior Court, Rockingham County; Lyon, Judge.

S. A Gibson was convicted of crime, and he appeals. Reversed, and verdict set aside, and bill of indictment dismissed as of nonsuit.

Variance between indictment and proof is waived where there is no objection thereto before verdict.

The defendant was charged in the court below with obtaining money under false pretenses, upon the following indictment:

"The jurors for the state upon their oaths present: That S. A Gibson, late of the county of Rockingham, wickedly and feloniously devising and intending to cheat and defraud Wm S. Martin, on the 23d day of October, A. D. 1912, with force and arms at and in the county aforesaid, unlawfully, knowingly, designedly, and feloniously did unto Wm. S. Martin falsely pretend that Thomas Knight, T. H. Barker, and A. F. Tuttle had consented to become sureties for said S. A. Gibson on a note for the sum of three hundred and fifty dollars, and that he (said S. A. Gibson) had to get another on the note with said Thomas Knight, T. H. Barker, and A. F. Tuttle, and that their signatures would be secured on said note before its transfer or disposal. Whereas in truth and in fact said Thomas Knight, T. H. Barker, and A. F. Tuttle had not consented to become sureties for said S. A. Gibson on a note for three hundred and fifty dollars. By means of which said false pretense he (the said S. A. Gibson) knowingly, designedly, and feloniously did then and there unlawfully obtain from the said Wm. S. Martin the following goods and things of value, the property of Wm. S. Martin, to wit, three hundred and fifty dollars, 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.

S. P. Graves, Solicitor."

W. S Martin, the prosecutor, testified:

"At the time of the alleged offense I lived in the town of Leaksville, Rockingham county, and was engaged in the livery business. The defendant came to me at my office and asked me to go on his note with T. H. Barker, Thos. Knight, and Dr. Tuttle, for the sum of $350; that he (S. A. Gibson) had seen Barker, Knight, and Tuttle, and that they had agreed to sign the note with me. I told Gibson to get the other men to sign it, and I would sign it. Gibson said he wanted to use the note that evening, and that, if I would sign it then, he would go immediately and get the signatures of the others. I knew T. H. Barker, Thos. Knight, and Dr. Tuttle. They were residents of the same town, and I knew of their solvency. The note was to run three months, being dated October 23, 1912. I would not sign the note alone, and relied upon the statement made to me by the defendant that the three parties named had promised to become sureties or indorsers thereon. Upon these representations made to me by the defendant, I signed the note, and never knew but that they were sureties thereon until I was notified by the Bank of Leaksville, in which the note had been discounted, of its maturity, and a demand was made upon me for payment thereof, when I discovered that my name alone appeared as surety; none of the others (Barker, Knight, nor Tuttle) having signed it. I took up the note upon the demand of the bank, by the renewal thereof in my own name, and became solely responsible for its payment."

There was evidence by three witnesses, A. F. Tuttle, Thomas Knight, and F. T. Barker, that they had not promised or agreed to sign the note as sureties, and no one of them had promised to sign it as surety. There was also further evidence as to how the note was taken up in the bank by the prosecutor.

The defendant moved for a nonsuit, under the statute (Public Laws of 1913, c. 73), because the state had failed to make out a case against the defendant upon all the evidence. The motion was overruled, and defendant excepted. There was a verdict of guilty. Defendant moved in arrest of judgment. Motion overruled. Judgment on the verdict, and defendant appealed.

P. W. Glidewell, of Reidsville, and Manning & Kitchin, of Raleigh, for appellant.

Attorney General Bickett and T. H. Calvert, Asst. Atty. Gen., for the State.

WALKER, J. (after stating the facts as above).

It is an elementary rule in the criminal law that a defendant must be convicted, if at all, of the particular offense alleged in the bill of indictment. He has the constitutional right to be informed of the accusation against him "by indictment, presentment or impeachment," and no person shall be convicted of any crime but by the unanimous verdict of a jury upon the charge so made. Const. art. 1, §§ 11, 12, 13. The evidence, therefore, must correspond with the charge and sustain it, at least in substance, before there can be a conviction.

The defendant contends that the evidence in this case does not so correspond with the charge and does not, in law, support it but that there is a fatal variance between the two. If this be so, the verdict was wrong and cannot stand. He is charged in the bill with obtaining money, to wit, $350, by a false pretense, while the proof tends to show only that, while he made the false representation knowingly and correctly, he did not obtain money by reason thereof, but was induced to part with the note, which he signed for the defendant, and which he afterwards "took up" with another note signed also by himself, and that he has never paid any money on the note, and certainly none to the defendant. All the defendant got was a note signed by the prosecutor; how it was done and to whom payable does not appear. The defendant never got any money from the prosecutor. What he did get, we presume, was paid by the bank to him. There was a fatal variance between the allegation in the bill and the proof. It is the general rule that the thing obtained by a false pretense, as in the case of the thing stolen in larceny, must be described with reasonable certainty, and by the name or term usually employed to describe it. McLain's Cr. Law, § 595; State v. Reese, 83 N.C. 637. A promissory note must be described as such, and not as money. 3 Bish. New Cr. Proc. p. 1691, § 732(3). We never properly speak of such a note as "money" or as "so many dollars." Money is any lawful currency, whether coin or paper, issued by the government as a medium of exchange, and does not embrace, within its meaning, a note given by one individual to another or otherwise put in circulation. Our statute in regard to larceny, embezzlement, and false pretenses makes the distinction clearly and unmistakably. It makes indictable the obtaining, by a false token or other false pretense, "any money, goods, property, or other thing of value, or any bank note, check, or order for the payment of money, issued by, or drawn on, any bank or other...