Opinion
(Decided 18 April, 1899.)
False Pretense — The Code, Sec. 1025.
Evidence of obtaining money upon a false promise, to be performed in the future, but which does not show a false representation of a subsisting fact, will not support an indictment under The Code, sec. 1025, for obtaining money under a false pretense.
(815) INDICTMENT for obtaining money under a false pretense, tried before McIver, J., at November Term, 1898, of FORSYTH.
The defendant excepted to the sufficiency of the evidence to support the charge, and upon conviction moved for a new trial. Motion refused, and defendant appealed from the judgment. The evidence is stated in the opinion.
Attorney-General and Brown Shepherd for the State.
Moore Sapp for defendant.
The defendant is indicted for obtaining money under a false pretense. The Code, sec. 1025. The State's witness testified that "he went to the defendant Knott and told him he understood he was an agent for one Franklin, who would furnish good and lawful money to any one at the rate of $10 for each $1 invested, and that he afterwards, on the same day, made a bargain with defendant Knott that, upon the payment of $21.50, the said Knott was to procure for him from said Franklin the sum of $150; that defendant Knott told him he had furnished money at these rates for Ogburn, Hill Co.," and others; further, that said money had not been received by him.
Does this evidence constitute an indictable offense under our Code? It does not. It shows a promise to be performed in the future, but does not show a false representation of a subsisting fact. This question was fully explained in S. v. Phifer, 65 N.C. 325, which has been followed as a leading case. There, it was held that "There must be a false representation of a subsisting fact, calculated to deceive and which does deceive," but it does not extend to mere tricks of trade. It makes no difference whether the prosecutor was a prudent or imprudent (816) man, or one easily imposed upon; for, if he was deceived, it was done by a promise and not by false representation of an existing fact.
NEW TRIAL.