State v. Mcwhirter
| Decision Date | 03 April 1906 |
| Citation | 53 S.E. 734,141 n. c. 809 |
| Parties | STATE. v. McWHIRTER. |
| Court | North Carolina Supreme Court |
A criminal case on appeal must be regarded in the light of the theory on which it was tried in the court below.
[Ed. Note.—For cases in point, sec vol. 15, Cent. Dig. Criminal Law, § 2991.]
In a criminal prosecution, the allegation and proof must correspond.
[Ed. Note.—For cases in point, see vol. 27, Cent. Dig. Indictment and Information, § 530.]
Where, in a criminal action, under an indictment charging defendant with having falsely represented to prosecutors that he was the owner of two mules and that there was no lien on them, whereas in fact there was a lien, and that by such false pretenses he obtained from prosecutors one note and mortgage of the value of $205, proof of a surrender by prosecutors to defendant of a note for $315, on reduction of which the note referred to in the indictment was given by defendant and a mortgage securing the same, did not sustain the charge, and a substantial and fatal variance was shown.
In a criminal prosecution, the submission of the case to the jury without any corresponding evidence to establish the special charge of the bill, entitles the defendant to a new trial.
Appeal from Superior Court, Union County; Ferguson, Judge.
G. P. McWhirter was convicted of obtaining property under false pretenses, and appeals. New trial.
Stewart & McRae, R. L. Stevens, and Til-lett & Guthrie, for appellant.
Robert D. Gilmer, Atty. Gen., for the State.
The defendant, being Indebted to the prosecutors, executed to them on November 23, 1903, a note for $315, and also a paper writing in form a crop lien to secure advancements and a chattel mortgage to secure a debt, but no description of the note for $315 is inserted In this paper writing, which is called in the case "Exhibit A." The defendant, in January, 1904, paid $50 on the $315 note, and executed a new note for $205 for the balance, and a mortgage to secure its payment, which were given in lieu of the $315 note, and were a payment and satisfaction of it, and a substitution for it. The case was tried upon the theory in the court below that such was the nature and legal effect of the transaction, and we must so regard It here. Allen v. Railroad, 119 N. C. 710, 25 S. E. 787.
The defendant is charged in the Indictment with having falsely represented to the prosecutors that he was the owner of two mules, and that there was no lien on them, whereas in fact there was a lien on them at the time, and with having by said false pretense obtained from the prosecutors "one note and mortgage, of the value of $205, executed 28th day of January, 1904, of the goods and chattels of the said E. M. Griffin & Co." (the prosecutors). All the evidence tended to show that the prosecutors did not...
To continue reading
Request your trial
-
Cameron v. Hicks
... ... Harris v. Harris as enabling her to dispose of the entire ... life estate. However it may be, it would seem clear that, in ... this state, the distinction cannot be sustained. It will be ... observed that when the trust is declared "for the sole ... and separate use," or words ... ...
-
State v. George
..."proof without allegation is as unavailing as allegation without proof." State v. Snipes, 185 N C. 743, 117 S. E. 500; State v. McWhirter, 141 N. C. 809, 53 S. E. 734; Dixon v. Davis, 184 N. C. 209, 114 S. E. 8; Green v. Biggs, 167 N. C. 422, 83 S. E. 553; McCoy v. Railroad, 142 N. C. 387, ......
-
State v. Davis
...seem to be a clear case of variance between the allegation and the proof, and the jury should have been so instructed. State v. McWhir-ter, 141 N. C. 809, 53 S. E. 734; State v. Cor-bett, 46 N. C. 264. Apart from this, there was no sufficient evidence presented in the case to sustain a conv......