State v. Howley
| Decision Date | 08 October 1941 |
| Docket Number | 217. |
| Parties | STATE v. HOWLEY et ux. |
| Court | North Carolina Supreme Court |
Criminal prosecution upon indictment for false pretense.
The bill, under which defendants are indicted, is as follows
When the case was called for trial in Superior Court, defendants and each of them moved to quash the bill of indictment upon the ground that it does not state a crime. Motion denied. Exception.
Defendants thereupon pleaded not guilty. The State offered evidence tending to show these facts: That prior to 21 February, 1939, defendants, J. P. Howley and wife, Estella Howley, who were "building a moving picture building" at Elk Park, North Carolina, approached E. C. Guy, president of Avery County Bank, at Newland, North Carolina, with reference to the bank making them a loan of $900, to be secured by mortgage on said building; that Guy told them that new construction was a type of loan that did not appeal to the bank, for that there was always more or less risk involved due to the fact that labor and material liens came ahead of mortgage; that upon Guy asking them where they had been buying material, they gave the name of some one in Johnson City; that they came back and said that they had paid all material and labor liens on everything that went into the building at Elk Park; that after the bank had had an appraisal of the property and had had the public records of Avery County examined and had obtained a certificate of an attorney upon such examination to the effect that "the said J. P. Howley and Estella Howley are seized of the said land and premises in fee and have a right to convey the same in fee simple; that the said mortgage constitutes a first and valid lien thereon", and after defendants had executed the mortgage referred to in the certificate, and in which the defendants covenanted "that they are seized of the said land and premises in fee and have a right to convey the same in fee simple"; and "that the same are free and clear from all encumbrances", and had taken out fire insurance on the building, the Avery County Bank, on 21 February, 1939, loaned to defendants the sum of $900, and received from them as evidence thereof their joint note for that amount payable in instalments and secured by said mortgage on said property.
The evidence for the State further tended to show: That at the time the loan was made defendants were indebted to Rhea Penland, building contractor, of Burnsville, North Carolina, in the sum of $745, as is stipulated in the record, and to Baxter Johnson, an electrical contractor, of Spruce Pine, North Carolina, in the sum of $61.55 for material furnished and labor performed in the construction of said moving picture building at Elk Park, for which notice of liens were thereafter filed in Superior Court against defendants on 28 April, 1939, and on 4 May, 1939, respectively, the lien relating to dates prior to 21 February, 1939; that on 28 June, 1939, said Rhea Penland instituted an action in Superior Court of Avery County to foreclose the lien of which notice was given as above stated, and "said proceeding was carried on regularly to its conclusion" and the property sold under execution, and conveyed by deed of the Sheriff to B. B. Penland; and that no part of the said $900 loaned by said bank to defendants has been paid, and the whole of it is "still due and owing the bank".
On cross examination the witness, E. C. Guy, testified that in making this loan, he took into consideration the appraisal and the attorney's certificate, both of which were obtained by the bank, but that "to the extent of the material and what they had bought" he had to and did rely upon what defendants had told him; and that if defendants had told him they owed unpaid labor and material bills, the bank would not have made the loan.
Upon the State resting its case, defendants and each of them moved for judgment as of nonsuit. Motions are denied. Exception. Defendants offered no evidence, and renewed their motions for judgment as of nonsuit at close of all the evidence. Motions are denied. Exception.
Verdict: Guilty.
Thereupon, defendants moved in arrest of judgment. Denied.
Judgment: That the defendant, J. P. Howley, be confined in the State's Prison at Raleigh, North Carolina, for not less than one year nor more than two years, to be assigned to hard labor as provided by law. Prayer for judgment as to defendant, Estella Howley, is continued for a period of two years on condition of her good behavior.
Defendants appeal to Supreme Court and assign error.
Harry McMullan, Atty. Gen., and T. W. Bruton and G. B. Patton, Asst. Attys. Gen., for the State.
W. C. Berry, of Bakersville, for defendants appellants.
The assignments of error presented in the record on this appeal fail to reveal prejudicial error.
First: It is contended that the court erred in refusing to grant defendants' motion (a) to quash the bill of indictment, and (b) in arrest of judgment for that the bill fails to charge an offense.
The statute C.S. § 4277, under which defendants are indicted, deleting verbiage not significantly related to the case in hand, declares that: "If any person shall knowingly and designedly, by means of any *** other false pretense whatsoever, obtain from any person or corporation within the state any money *** with intent to cheat or defraud any person or corporation of the same, such person shall be guilty of a felony ***." It is further provided therein that it shall be sufficient in any indictment for obtaining or attempting to obtain any such property by false pretenses to allege that the party accused did the act with intent to defraud, without alleging an intent to defraud any particular person, and without alleging any ownership of the money.
In State v. Phifer, 65 N.C. 321, speaking of this statute, which was then Section 67 of Chapter 34 of the Revised Code, Reade, J., said: "We state the rule to be, that a false pretense of a subsisting fact, calculated to deceive, and which does deceive, and is intended to deceive, whether the representation be in writing, or in words, or in acts, by which one man obtains value from another, without compensation is a false pretense, indictable under our statute".
The constituent elements of "false pretense" as defined by the statute, and expressed in the Phifer case have been repeated without variation in numerous decisions of this Court, among which are: State v. Dixon, 101 N.C. 741, 7 S.E. 870; State v. Mangum, 116 N.C. 998, 21 S.E. 189; State v. Matthews, 121 N.C. 604, 28 S.E. 469; State v. Whedbee, 152 N.C. 770, 67 S.E. 60, 27 L.R.A.,N.S., 363; State v. Claudius, 164 N.C. 521, 80 S.E. 261; State v. Carlson, 171 N.C. 818, 89 S.E. 30; State v. Roberts, 189 N.C. 93, 126 S.E. 161.
In our criminal procedure it is provided by statute, C.S. § 4623 that every criminal indictment is sufficient in form if it express the charge against the defendant in a plain, intelligible and explicit manner, and that the indictment shall not be quashed nor the judgment thereon stayed by reason of any informality or refinement, if in the bill sufficient matter appears to enable the court to proceed to judgment. This section too has been discussed and applied in numerous decisions of this Court, among which are: State v. Moses, 13 N.C. 452; State v. Gallimon, 24 N.C. 372; State v. Whedbee, supra; State v. Francis, 157 N.C. 612, 72 S.E. 1041; State v. Ratliff, 170 N.C. 707; 86 S.E. 997; State v. Carpenter, 173 N.C. 767, 92 S.E. 373; State v. Sauls, 190 N.C. 810, 130 S.E. 848; State v. Ballangee, 191 N.C. 700, 132 S.E. 795; State v. Lea, 203 N.C. 13, 164 S.E. 737; State v. Whitley, 208 N.C. 661, 182 S.E....
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