State v. Ice & Fuel Co

• Decision Date: 06 May 1914
• Docket Number: (No. 508.)
• Court: North Carolina Supreme Court
• Parties: STATE. v. ICE & FUEL CO.

(166 N.C. 366)

81 S.E. 737

STATE.

v.ICE & FUEL CO.

(No. 508.)

Supreme Court of North Carolina.

May 6, 1914.

1. False Pretenses (§ 38*)—Indictment—Issues, Proof, and Variance.

Under Revisal 1905, § 3432, providing that, in an indictment for obtaining property by false pretenses, it shall be sufficient to allege that the party did the act with the intent to defraud, without alleging an intent to defraud any particular person, and that it shall not be necessary to prove an intent to defraud any particular person, an allegation, in an indictment as to the persons intended to be defrauded, was surplusage, and a claim of variance could not be predicated thereon.

LEd. Note.—For other cases, see False Pretenses, Cent. Dig. §§ 50-53; Dec. Dig. § 38.*]

2. Corporations (§526*)—Criminal Responsibility—Acts Involving Intent—"Person."

Under Revisal 1905, § 2831, subd. 6, defining "person" as extending to bodies corporate, unless the context clearly shows the contrary, and section 3432 providing that, if any perpon shall by any false pretense obtain any money or other thing of value with intent to defraud, such person shall be guilty of a felony and imprisoned or fined, a corporation may be convicted of obtaining money by false pretenses, as a corporation may be convicted of a crime requiring an intent, and the fact that it cannot be imprisoned does not exempt it from criminal liability.

[ Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 2138, 2139; Dec. Dig. § 526.*

For other definitions, see Words and Phrases, vol. 6, pp. 5322-5335; vol. 8, p. 7752.]

3. False Pretenses (§ 9*)—Elements—Deceptive Character of Pretenses and Reliance Thereon.

While, to constitute the offense of obtaining property by false pretenses, defendant's conduct must deceive and be intended and calculated to deceive, the sale of 1, 750 pounds of coke as a ton constituted the offense, though the buyer strongly suspected that defendant was selling by short weight, where he did not and could not know this until he weighed the coke after delivery, as he was induced to part with the price in reliance upon defendant's representation that it was a ton.

LEd. Note.—For other cases, see False Pretenses, Cent. Dig. § 14; Dec. Dig. § 9.*]

Appeal from Superior Court, Rowan County; Long, Judge.

The Ice & Fuel Company was convicted of obtaining money by false pretenses, and it appeals. Affirmed.

Linn & Linn, of Salisbury, for appellant.

T. W. Bickett, Atty. Gen., T. H. Calvert, Asst. Atty. Gen., and A. H. Price, of Salisbury, for the State.

CLARK, C. J. The defendant was indicted for obtaining money by false pretenses under Revisal, § 3432, by selling to J. N. Smith and C. M. Henderlite a certain amount of coal represented to be one ton In weight, whereas It weighed 1, 750 pounds; the defendant well knowing the pretense to be false. Said Henderlite was a competitor in trade of the defendant company and suspected that they were selling short weight. On January 8, 1913, he called up the office of the defendant over the phone and asked the price of coke. The reply was $5. He ordered a ton sent to J. N. Smith at a certain corner, and the defendant delivered the order as one ton and received payment. Henderlite then hauled the coal to the scales and found that it weighed only 1, 750 pounds.

There are practically but two questions presented that require consideration: (1) The defendant moved in arrest of judgment on the ground of fatal variance in that the indictment charged false pretense "with intent to deceive C. M. Henderlite and J. N. Smith, " whereas it appears from the evidence that J. N. Smith was a fictitious person and C. M. Henderlite was not known in the transaction either directly or indirectly and was not deceived. Revisal, § 3432, provides: "It shall be sufficient in any indictment for obtaining or attempting to obtain any such property by false pretenses to allege that the party did the act with intent to defraud, without alleging an intent to defraud any particular person and without alleging any ownership of the chattels, money, or valuable securities; and, on the trial of any such indictment, it shall not be necessary to prove an intent to defraud any particular person, but it shall be sufficient to prove that the party accused did the act charged with an intent to defraud." The charge as to the persons intended to be cheated was therefore surplusage and immaterial. State v. Ridge, 125 N. C. 658, 34 S. E. 440.

(2) The other exception is that a corporation cannot be convicted of a crime which requires an intent.

In State V. Lumber Co., 153 N. C. 612, 69 S. E. 58, it is said: "The first ground that corporations cannot be convicted of an offense where the intent is an ingredient is no longer tenable. They are as fully liable in such cases as individuals.. They are liable for libel, assaults, and battery, etc. Corporate existence can be shown, though not charged in the bill. State v. Shaw, 92 N. C. 768." This is fully sustained by all the late authorities. In U. S. v. MacAndrews (C. C.) 149 Fed. 823, it is held that a corporation can be held criminally liable for conspiracy or any other crime requiring the proof of an intent. The court says, on page 835: "It was long contended that even a civil liability arising from evil intent could not be visited upon an artificial being. This fiction has vanished and corporate liability on the civil side firmly established, even for assault. Railroad v. Prentice, 147 U. S. 101 [13 Sup. Ct. 261, 37 L. Ed. 97] for conspiracy [citing many cases]. It was even longer denied that a corporation could be indicted at all. Queen v. Railroad, 9 Q. B. 314. In People v. Clark, 14 N. Y. Supp. 642, the court declared that the legal reasoning upholding this contention was the strange argument that a corporation could not plead in person, and therefore could not be called on to answer criminally.

It certainly is now admitted law that not only may corporations (the art of pleading by attorney having been discovered) be indicted for nonfeasance, but for such deeds of misfeasance as are complete by the mere doing of the thing prohibited—e. g., violation of the 8-hour law (U. S. v. Kelso Co. [D. C] 86 Fed. 304); receiving usurious interest (State v. Bank, 2 S. D. 568 ); not stopping gaming at a fair (Commonwealth v. Ag. Soc, 92 Ky. 197 ). * * * These defendant corporations claim that since in conspiracy evil intent is of the essence of the crime, * * * renders the accusation futile. This is but the remnant of a theory always fanciful and in process of abandonment. * * * In Telegram Co. v. Commonwealth, 172 Mass. 294 44 L. R. A. 159, 70 Am. St. Rep. 280, it was held: 'We think that a corporation may be liable criminally for certain offenses of which a specific intent may be a necessary element. There is no more difficulty in imputing to a corporation a specific intent in criminal proceedings than in civil.' To same effect State v. Railroad, 15 W. Va. 362, 36 Am. Rep. 803."

In People v. Star Co., 135 App. Div. 517, 120 N. Y. Supp. 498, it is...