State,v,. Wiiedbee.

• Decision Date: 25 February 1910
• Citation: 152 N.C. 770,67 S.E. 60
• Parties: STATE v . WIIEDBEE.
• Court: North Carolina Supreme Court

67 S.E. 60

152 N.C. 770

STATEv. WIIEDBEE.

Supreme Court of North Carolina.

Feb. 25, 1910.

1. False Pretenses (§ 4^*)—Definition.

A "false pretense" is a false representation of a subsisting fact, whether by oral or written words or conduct, which is calculated to deceive, intended to deceive, and which does in fact deceive, and by means of which one person obtains value from another without compensation.

[Ed. Note.—For other cases, see False Pretenses, Cent. Dig. § 1; Dec. Dig. § 4.*

For other definitions, see Words and Phrases, vol. 3, pp. 2662-2668; vol. 8, p. 7661.]

2. Indictment and Information (§ 60*)— Requisites.

An indictment must be so drawn that the court can see on its face that an offense has been committed, and it must state explicitly every fact necessary to constitute the offense, whether an external event, an intention or other state of mind, or a circumstance of aggravation affecting the legal character of the offense.

[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. § 182; Dec Dig. § 60.*]

3. False Pretenses (§ 31^2-*)—Indictment.

An indictment, charging that defendant made certain false representations specified to H. to induce him to purchase, stock in a corporation, and that by means of such representations defendant obtained from H. his promissory note for $750, with intent to feloniously defraud H. of his moneys, goods, and chattels, etc., and that such representations were false, was fatally defective as an indictment for false pretenses, for failure to allege any causal connection between the false representations and the execution of the note; it not being alleged for what the note was given, whether for stock or for some other thing of value.

[Ed. Note.—For other cases, see False Pretenses, Cent. Dig. §§ 38-41; Dec. Dig. § 31.*]

Clark, C. J., and Hoke, J., dissenting.

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

T. C. Whedbee was convicted of false pretenses, and he appeals. Remanded, and judgment arrested.

This is an indictment against the defendant for cheating and defrauding W. C. Heath by means of a false and fraudulent pretense. As the case is decided upon the validity of the indictment, it will be necessary to set it out. It is as follows: "North Carolina, Union County, Superior Court, March Term, 1909. State v. T. C. Whedbee. The jurors for the state upon their oath present that T. C. Whedbee, late of the county of Union, in said state, with force and arms, at and in said county of Union and state of North Carolina, with intent to cheat and defraud one W. C. Heath, did on the 29th day of May, in the year of our Lord one thousand nine hundred and eight (1908), then and there unlawfully, falsely, designedly, knowingly, feloniously, and fraudulently pretend to W. C. Heath, for the purpose of inducing him, the said W. C. Heath, to purchase stock in the Seminole Securities Company, a corporation, that Wylie Jones and W. A. Clark, bankers of Columbia, in the state of South Carolina, were at the head of the Seminole Securities Company, and large stockholders in said company, and directing its management; that no salaries were being paid the officers of said Seminole Securities Company; that it was not costing exceeding 10 per centum to organize the Seminole Securities Company; that said T. C. Whedbee was not receiving anything in excess of 6 per centum for his services in selling stock in said Seminole Securities Company; that the stock of the Seminole Securities Company was then being sold for the sole purpose of capitalizing, with the proceeds realized from the sale of stock of the Seminole Securities Company, a corporation being created under the laws of the state of North Carolina as an accident, indemnity, and employers' liability insurance company, to be known as the Sterling Casualty Company; that the 50 per centum premium at which the said T. C. Whedbee offered for sale and did sell said stock of the Seminole Securities Company, was being used for the sole purpose of creating surplus fund for the operation of the said Sterling Casualty Company; that a charter had been applied for by himself and others to the state of North Carolina for said accident, indemnity, and employers' liability company to be known as the Sterling Casualty Company; that to secure the holders of stock and policies in said accident, indemnity, and employers' liability insurance company, to be known as the Sterling Casualty Company, $100,000 in securities had been deposited with James R. Young, Insurance Commissioner of North Carolina, by means of which said representations and pretenses said T. C. Whedbee unlawfully, willfully, knowingly, designedly, fraudulently, and feloniously did obtain from W. C. Heath his promissory note in the sum of $750 of the value of $750, being then and there the property of the said W. C. Heath, with the intent to feloniously cheat and defraud said W. C. Heath of his moneys, goods, and chattels; to the great damage of said W. C. Heath. Whereas, in truth and in fact, Wylie Jones and W. A. Clark, bankers of Columbia, in the state of South Carolina, were not at the head of said Seminole Securities Company, and were not large stockholders in said company, and were not directing its management; salaries were being paid to the officers of the said Seminole Securities Company; it was costing more than 10 per centum to organize the said Seminole Securities Company; T. C. Whedbee was receiving in excess of 6 per centum for his services in selling the stock in the Seminole Securities Company; the stock in the Seminole Securities Company was not then being sold for the sole purpose of capitalizing, with the proceeds realized from the sale of the stock of the Seminole Securities Company, a corporation being created under the laws of the state of North Carolina as an accident, indemnity and employers' liability company; that the 50 per centum at which the said T. C. Whedbee offered for sale and did sell the stock of the said Seminole Securities Company was not being used for the sole purpose of creating a surplus fund for the operation of the said Sterling Casualty Company; a charter had not been applied for by said T. C. Whedbee and others to the state of North Carolina for said accident, indemnity, and employers' liability insurance company; and to secure the holders of stock and policies in said accident, indemnity, and employers' liability company, to be known as the Sterling Casualty Company, $100,000 in securities had not been deposited with James R. Young, Insurance Commissioners of North Carolina, as he, the said T. C. Whedbee, then and there well knew, contrary to the form of the statutein such cases made and provided, and against the peace and dignity of the state." The indictment was signed by the solicitor and was duly returned into court as a true bill by the grand jury. The defendant was convicted by the jury, and judgment having been entered upon the verdict, he excepted and appealed to this court.

Osborne, Lucas & Cocke, A. M. Stack, Bur-well & Cansler, W. H. Venable, Chas. Whedbee, and P. W. McMullan, for appellant.

Attorney General Bickett, Adams, Jerome & Armfield, and Redwine & Sikes, for the State.

WALKER, J. (after stating the facts as above). The indictment in this case is palpably defective. A criminal false pretense may be defined to be the false representation of a subsisting fact, whether by oral or written words or conduct, which is calculated to deceive, intended to deceive, and which does, in fact, deceive, and by means of which one person obtains value from another without compensation. State v. Phifer, 65 N. C. 321. That case has been repeatedly approved by this court in numerous subsequent decisions involving the question as to the true nature and the constituent elements of a false pretense. Among others are State v. Mangum, 116 N. C. 998, 21 S. E. 189; State v. Matthews, 121 N. C. 604, 28 S. E, 469; State v. Davis, 150 N. C. 851, 64 S. E. 498. In State v. Matthews, supra, the present Chief Justice analyzes the offense and states its component parts with great clearness. This court in that case, speaking by Justice Clark, holds squarely that, in order to convict one of this crime, the state must satisfy the jury beyond a reasonable doubt (1) that the representation was made as alleged; (2) that property or something of value was obtained by reason of the representation; (3) that the representation was false; (4) that it was made with intent to defraud; (5) that it actually did deceive and defraud the person to whom it was made. The universal rule of civil and criminal pleading requires that the facts, constituting the cause of action, the defense thereto or a crime, must be stated, leaving nothing to inference or to the imagination. The Constitution of our state requires this in the case, for it says that the accused is entitled to be informed of the accusation made against him. It is a fundamental principle of the common law, or at least of Magna Charta, and has been explicitly guaranteed to the citizen in every great reform of our jurisprudence. It is nothing but right and just, and any other rule would be clearly oppressive, if not cruel, in its operation. The indictment must be so drawn, and the facts so stated therein, that this court can see upon its face that an offense has been committed, if the evidence corresponds with and supports the allegations of the bill.

Clark, in his great treatise on Criminal Procedure, at pages 153 and 154, states the law with such clearness and precision that we cannot do better than state, at least substantially, what he lays down as the correct rule: "The indictment must show on its face that if the facts alleged are true, and assuming that there is no defense, an offense has been committed. It must therefore state explicitly and directly every fact and circumstance necessary to constitute the offense, whether such fact or circumstance is an external event, or an intention or...