State v. Wilbourne

• Citation: 87 N.C. 529
• Court: United States State Supreme Court of North Carolina
• Decision Date: 31 October 1882
• Parties: STATE v. J. W. WILBOURNE.

87 N.C. 529

STATE

v.J. W. WILBOURNE.

Supreme Court of North Carolina.

October Term, 1882.

OPINION TEXT STARTS HERE

INDICTMENT for false pretence, tried at October Term, 1882, of NEW HANOVER Criminal Court, before Meares, J.

The defendant was tried upon a charge of obtaining goods under false pretenses. The proofs were, that the defendant came to the city of Wilmington, a stranger, and soon thereafter made the acquaintance of the prosecutor, one Amey, to whom he represented that he had come directly from New York by railway, but that a brother of his was coming by water. That he was a member of a commercial house, dealers in cotton in Liverpool, England, which had sent out another agent to purchase cotton, but finding him unfaithful, had sent the defendant in person. That he had eighteen thousand dollars of United States bonds, which together with some important telegrams, were at the express office in the city, but that he had no money to pay the express charges, and thereupon he requested the prosecutor to lend him twenty dollars, so as to enable him to procure the possession of the bonds and telegrams--which loan the prosecutor made to him, upon the strength of these representations and his promise to return the money the next day. The defendant failed to return the sum borrowed at the time agreed, and the prosecutor going in search of him, found him handling some cotton, and he immediately apologized for his failure to return the money by saying that he had been busy all day, buying cotton, of which he had purchased during the day six hundred dollars worth, but promised to return the twenty dollars the following day, upon which assurance the prosecutor was induced to lend him two other sums of money. The defendant also represented to one Hooper, at whose house he stayed for nine nights, that the aforesaid amount of bonds was contained in two packages, which he had, and which he gave to Hooper to hold for him until he had occasion to use them--the packages being sealed. Hooper took them in charge and kept them locked up for several days, though without ascertaining their contents. On a certain occasion the defendant asked for the package, but when handed to him said, “never mind, I have six hundred dollars in my pocket, and I will make that do for the present.” After the lapse of several days the defendant took the packages from Hooper, and carried them to the register of deeds for the county, and requested him to take charge of them, saying they were valuable, but without specifying their contents. One package was marked “Dr. J. W. Wilbourne, No. --, King Street, Liverpool.”

On one occasion, the prosecutor and the said register went together to Hooper's house (the defendant's boarding house) for the purpose of demanding an inspection of the bonds, but before getting to Hooper's the said register found defendant at another place and delivered the package to him; the prosecutor expressed a belief that the defendant intended to run away, and insisted that he must either pay him the amount borrowed, or secure it in some way, and he also demanded to see the bonds, to all of which the defendant replied that he would prove to him, the next morning, that he was a gentleman--though he did not then or at any other time exhibit the bonds.

It was also shown in evidence that the defendant informed the teller of one of the banks that he had eighteen thousand dollars worth of said bonds which he wished to sell, and was advised to send them to New York, and that about a week thereafter, he said that he had so disposed of them.

The defendant introduced no evidence, but his counsel insisted that the burden rested upon the state to show that he did not have in his possession the bonds as alleged by him, and that in the absence of such proof on the part of the state, he was entitled to an acquittal.

His Honor after stating to the jury the general rule as to the burden of proof resting upon the state, and its being incumbent on the prosecutor to establish the falsity of the alleged representations, instructed them, that, “in a case like this, where the bonds in question were never exhibited to any one by the defendant, and if they ever had any existence at all, are either in his possession, or have been disposed of by him, the burden of proof is shifted, and it is incumbent upon him to produce them, or to account for their disposition to the satisfaction of the jury, to which instruction the defendant excepted. Verdict of guilty, judgment, appeal by defendant.

Attorney General, for the State .

No counsel for defendant.

RUFFIN, J.

It is conceded to be necessary in order to complete the charge against the defendant, that the bill of indictment should contain an averment to the effect that he did not own the bonds in question, or have them in his...