State v. Griffin

• Decision Date: 22 February 1911
• Citation: 70 S.E. 292,154 N.C. 611
• Parties: STATE v. GRIFFIN.
• Court: North Carolina Supreme Court

70 S.E. 292

154 N.C. 611

STATE v. GRIFFIN.

Supreme Court of North Carolina

February 22, 1911

Appeal from Superior Court, Union County; W. J. Adams, Judge.

Hezekiah Griffin was convicted of crime, and he appeals. Reversed, and new trial granted.

To justify a conviction under the statute punishing any person who, with intent to defraud, obtains money by color of promise to begin work, and who shall willfully fail to commence or complete the work, there must be an intent to defraud, and mere proof that accused obtained advances and promised to work and breached his promise is not sufficient.

Williams Lemmond & Love, for appellant.

The Attorney General and Geo. L. Jones, for the State.

BROWN J.

The offense of which the defendant was convicted is defined by the statute as follows: "If any person with intent to cheat and defraud another shall obtain any money, etc., from any other person or corporation, upon and by color of any promise or agreement that the person making the same will begin any work, etc., and shall unlawfully and willfully fail to commence or complete said work according to the contract without a lawful excuse, he shall be guilty of a misdemeanor," etc. Laws 1889, c. 444. This statute was under consideration by this court in State v Norman, 110 N.C. 489, 14 S.E. 969. In that case the trial judge charged the jury as follows: "In order to convict, the state must show to the full satisfaction of the jury something more than obtaining the advances, a promise to work to pay for the same, and a breach of that promise. Nothing else being shown, these facts would constitute only a breach of contract, and for this the defendant could not be prosecuted criminally. The jury must be fully satisfied of an element of fraud in this transaction. If the jury believe from the evidence, that the defendant obtained these advances and promised to commence work on Monday morning to pay therefor, and at the time he obtained the advances and made the promise, intended to keep his word and commence work, and afterwards, being attracted by higher wages, or for other cause, failed to do so, he would not be guilty. But if the jury are fully satisfied that at the time he obtained the advances and made the promise (if he did make it), the defendant did not intend to commence work, but used the promise as an artifice or fraud for the sole purpose of obtaining the advancements, then he would be guilty. The jury must be satisfied that the defendant's object and purpose was to cheat and defraud." This construction of the statute was adopted by this court in the words quoted, and the court further said: "Certainly evidence merely of the agreement to work and obtaining advances thereon and the failure to comply would not warrant or support a verdict." It is manifest from the record in this case that there is no evidence whatever that, when the defendant obtained the advances in money, he then intended to defraud the prosecutor, then had no intention of performing his contract, and used the promise to work as a fraudulent device to obtain the credit. The defendant was a tenant of the prosecutor, and lived with his wife and children on prosecutor's land. He was convicted of assault and battery, and prosecutor paid his fine and costs, the defendant agreeing to continue work on the farm and to cut cross-ties at 10 cents each. This was in August, 1908. The defendant worked with prosecutor off and on until last of December. The prosecutor seized his hog, farming tools, flour and meat for his debt, although he had no mortgage on them. The defendant moved off his land in order, as defendant testifies, to support his family. But it is contended that the statute has been amended since the opinion in the Norman Case, and that the mere fact of a failure to do the work raises a presumption of fraud, and that the original promise was a subterfuge and device to obtain the advances. The statute was amended in 1905, since that decision, and the amendment reads as follows: "And evidence of such promise or agreement to work, the obtaining of such advances thereon and the failure to comply with such promise or agreement shall be presumptive evidence of the intent to cheat and defraud at the time of obtaining such advances and making such promise or agreement, subject to be rebutted by other testimony which may be introduced by the defendant." Laws 1905, c. 411.

The question was not discussed in the briefs or at the bar, but we must take notice of the inherent defect of this attempted rule of evidence. The Supreme Court of the United States has frequently recognized the general power of the state Legislature to prescribe the evidence which shall be received and the effect of that evidence in its own courts. Fong Yue Ting v. U. S., 149 U.S. 749, 13 S.Ct....