State v. Carlson, 171 N.C. 818 (1916)

May 31, 1916 · Supreme Court of North Carolina
171 N.C. 818


(Filed 31 May, 1916.)

1. Trials — Evidence—Criminal Action — ifonsuit.

Upon motion to nonsuit a criminal action, the evidence must he construed in a light most favorable to the State, for the purpose of determining its legal sufficiency to convict, and this being shown, its weight and the credibility of the witnesses are for the determination of the jury.

2. Criminal Law — False Pretense — Evidence—Burden of Proof.

A criminal false pretense is the false representation of a subsisting fact, whether oral or written words, or conduct, which is calculated and intended to, and does in fact, deceive, and by means of which one per*819son obtains value from another without compensation; and, to convict, the State must show beyond a reasonable doubt that the alleged representation was made; that by reason thereof property or something of value had been obtained; that the representation was false, made with intent to defraud, and that it actually deceived and defrauded the person to whom it was made.

8. Same — Certificates of Stock.

Evidence upon a trial for false pretense which tends to show that the defendant had secured an option on all the shares of stock in a corporation for $15,000, and effected a sale of half thereof to F., upon the representation that the two would own the whole'concern, unincumbered; that the stock could not be bought for less than $20,000, of which he would pay $10,000 cash for half, and F. $10,000 for the other half; that the interest of F. should be kept a secret; that the check for the $10,000 of F. was made to him, from which he paid $7,500 on the purchase price, of the stock, and the remainder thereof, $7,500, was represented by a mortgage on the corporate property, all of which was unknown to F.; that the defendant had secured $50 in currency instead of a check from FI to bind the option, so that he might not be known in the transaction: Held, sufficient to sustain the charge, and defendant’s subsequent conduct in New York, when confronted with the charge by the wife of F., was a circumstance in this case, to be considered by the jury upon the question of his guilt.

4. Criminal Law — False Pretense — Indictment—Probata.

The evidence in this case upon the charge of false pretense being considered, it is Held, that the objection that the allegata and probata did not correspond cannot be sustained.

5. Criminal Law — Indictment—Judgment—Motion in Arrest.

An indictment charging false pretense must be certain to ’ a general intent, stating all the facts and circumstances which constitute the offense with such certainty and precision that the defendant may see whether they constitute an indictable offense, so that he may be informed of the charge, and be protected froin another prosecution for the same offense. And it is Further held, that a motion in arrest of judgment was properly denied, and that the evidence was sufficient to sustain the conviction.

CeumiNal action, tried before Adams, J., and a jury, at January. Term, 1916, of Hendeirson.

Defendant was indicted for obtaining money by a false pretense, in .that he represented to one Dr. David J. Fuller “that the stock of the Hendersonville Traction Company could be bought for $20,000, and no less,” and that “he, the said C. A. Carlson, had $10,000, and that if the said David J. Fuller would furnish the other $10,000, he, said C. A. Carlson, would purchase all of the said stock in said Hendersonville Traction Company, and that they would hold it jointly and unencumbered,” which it is alleged in the indictment was false, and which defendant knew to be false, as “he did not have $10,000, or any sum, to use in the purchase of said Hendersonville Traction Company, and that the *820said O. A. Carlson bad at tbe time of making tbe representation an option on all of tbe capital stock of tbe Hendersonville Traction Company for tbe sum of $15,000, as be, tbe said O. A. Carlson, tben and there knew.” It is further alleged that by color and means of tbe said false pretense be unlawfully, designedly, and feloniously obtained from David J. Fuller tbe said amount of $10,000 with intent to cheat and defraud him.

Mrs. David J. Fuller, witness for tbe State, testified: “I live in Hen-dersonville ; I have lived here for six years. I lived in Brooklyn, N. Y., before coming here. My husband’s name was David J. Fuller. He is dead; died on tbe 18th of last August; bis business was that of a retired dentist. He died at tbe age of 76. I know C. A. Carlson. I met him first in tbe fall of 1912 at tbe Kentucky Home Hotel in Hendersonville-Dr. Fuller and a woman that Carlson introduced as bis wife were present. This was during tbe very last days of October, or tbe early part of November, 1912. I met Mr. Carlson tbe next day at my own borne. Prior to tbe issuing of tbe check spoken of here, Carlson was in our borne every day, and sometimes twice a day. In regard to 'the charge that Carlson obtained a check from my husband for $10,000, there was quite a little led up to tbe signing of tbe $10,000 check. In tbe early days of November Mr. Carlson came frequently to our home, and in tbe living-room of our home one evening, before my husband and myself, be said, addressing my husband by bis given name: ‘David, we can get this Hendersonville Traction Company for $20,000; we can go into it together and own all tbe stock jointly. I have my $10,000 ready, if you can get tbe same amount.’ There bad been a discussion between tbe two men prior to this, but this was tbe first time I beard of it in tbe presence of both of them. Doctor said to Carlson that be thought be could get bis $10,000. Carlson asked him, ‘ITow soon?’ and Dr. Fuller said, ‘Well, I will have to look into my bank account. I always keep several thousand on band, but I have not that much in tbe bank, but can borrow from tbe bank, as I have frequently done in tbe past.’ At another time, probably tbe next day, Carlson came into tbe bouse and said that be bad been talking to Mr. H. G. Staton and Mr. D. S. Pace further about buying tbe Traction, and that they were very warm about tbe subject, and Dr. Fuller said, ‘Can not you get them down to $18,000 ?” Whereupon Mr. Carlson said, ‘No; I have tried that, but it won’t do. They won’t take less than $20,000.’ ‘Another thing,’ said Mr. Carlson, ‘there is a man in town who wants that Traction; be comes from Brooklyn, and be will beat us to it if we don’t get it.’ ‘How soon do you think you will get that $10,000 that you will put in with me?’ Dr. Fuller said, ‘There is no trouble about my share in tbe Traction; you can go ahead and do what you can about tbe deal.’ Things went along like that till 15 November, when Mr. Carlson, coming into tbe bouse one *821day, after talking about things, he said: ‘I want to go over and bind that Traction deal with Mr. Pace and Mr. Staton, but I am short of cash. I have no money here. I am expecting letters from New York with money. Can you lend me $50 with which to bind the Traction ? I will pay it right back to you.’ Dr. Fuller said, ‘Yes; I will write you a check.’ About the middle of November he asked the doctor for $50 with which to bind the Traction deal, and Dr. Puller was about to write the check, and Mr. Carlson said, ‘No, don’t write a check; that will bring you right into it, and they will suspect that you are having something to do with it.’

“Back to the first meeting. I asked Dr. Puller, in the presence of Carlson, if they had consulted a lawyer about this. Mr. Carlson cut in and said, ‘We don’t want any lawyer in this. I know all about such affairs. I have had lots of experience. Lawyers eat up a great deal of money.’ And Dr. Puller said, ‘Yes, I know they do.’ So it was agreed that no lawyer should be brought into the matter; that Mr. Carlson would fix all these things and matters to the satisfaction of Dr. Puller. When in the middle of November Carlson asked Dr. Puller for the $50, and Dr. Puller was about to write the check, the doctor turned to me and asked if I had the money by me. Doctor said he never kept such a large sum on his person. I said I didn’t'think I had that much. And Mr. Carlson said, ‘Why can’t you make out the check to yourself, David, and cash it yourself?’ Doctor sat deliberating and said, ‘Yes, that might do.’ I said, ‘Birdie,’ meaning Mr. Barber, ‘is outside and has his wheel, and he can go over to the first bank and cash the check, after you write it, and bring it right back. He would be quicker than you.’ After a few minutes Mr. Carlson agreed to it, and I went out and told Barber. Barber came in the house, and Dr. Puller wrote the check for $50, payable to H. J. Barber. Mr. Barber went over to the bank and got the money, and brought it back, and handed it in my presence and Mr. Carlson’s presence to Dr. Puller, and Dr. Puller counted the $50 to Mr. Carlson, and said, ‘There, Charles, is the purchase money for the Traction.’ Dr. Puller said, ‘Wait a minute, Charles; I’ll go with you; wait till I get my co&t and hat.’ Mr. Carlson said, ‘No, don’t do that; we want to keep this matter a secret. We don’t want them to know anything about it for a few weeks. Then Dr. Puller said, ‘Yes, I remember; that is all right.’ Mr. Carlson said, ‘I’ll go over and bind the Traction, and tell you about it.’ Mr. Carlson went out that morning and came back in the afternoon, and said he had paid over the $50 to bind the Traction. Prom 15 November up to the first days of December Mr. Carlson was at the house frequently, and spoke of the Traction to Dr. Fuller, in my presence. Dr. Puller said, ‘It is a fine thing to have this right, free and clear.’ Carlson said, ‘Yes, a great thing to own all the stock together. And what a wonderful thing that we met on the train *822as we did. What a fine thing that Mrs. Carlson asked you to come to ber.’ Things went on like that until 1 December, or thereabouts, when Mr. Carlson came to the house one day and said, ‘David, I don’t want to be inquisitive about your private affairs and bank account, but if you cannot get that $10,000 that you will put in with me to buy the Traction Company by the first of January, I must know about it.’ Dr. Fuller said, ‘I can get it by the first of January.’ Carlson said, ‘I don’t want to be inquisitive, as I said, but I would like to know just how you are going to make it.’ Dr. Fuller said, ‘I am not a rich man; my general income is derived from the home I have in Brooklyn, New York, and shares in the American Beet Sugar.’ ‘Do you own that outright?’ asked Carlson. ‘Yes, I own it outright,’ readied the doctor. ‘Oh, man alive!’ Mr. Carlson said, ‘don’t you know that beet sugar is going to be the first thing taxed ?’ Carlson said, ‘There are already rumors that they will tax this beet sugar. You have been asleep at the switch.’ And then he came and put his arm around his shoulders, and said, ‘Doctor, you have been losing four or five hundred dollars a day by holding that stock. Where is the morning paper?’ Carlson then picked up the paper from the table and pointed to the beet sugar stock, and said, ‘See, it is now 91. It was 102 last week. It has been dropping down. You want to sell that now, or you won’t have anything left at all.’ Dr. Fuller sat there deliberating, and finally said, ‘I have held that stock since its infancy. I bought it over thirty years ago. It has never failed to pay its dividend. It is paying its dividend now. I don’t think I had better sell it.’ Mr. Carlson insisted that the stock should be sold. Finally, at Mr. Oarlson’t request, Dr. Fuller went to the telephone and dictated a telegram, which was sent to his broker in New York, telling him to sell all his hpldings, and those I had with him jointly, at 91. Carlson was present. The stock was sold in a day or two for nearly $27,000 and deposited in Brooklyn bank in the name of Dr. Fuller and myself. On 4 December Dr. Fuller wrote a check for $10,000. I was in the library with him when he wrote the check. I cannot remember that Carlson was present. The check was written payable to Charles A. CarlesoU for the sum of $10,000. This is the check. (The State here introduced in evidence the check.) The check was drawn 9 December, but was dated ahead. I cannot say positively, but very likely it was dated prior to the 9th, as Dr. Fuller dated his checks ahead. (Check is marked Exhibit A.) The check is indorsed in Carlson’s handwriting twice, the first ‘Charles A. Oarleson’ and the second is ‘Charles A. Carlson.’ It is spelled in the face of the check, ‘Charles A. Carleson.’

“It was one year, December, 1913, before I found that this Traction road didn’t cost $20,000. I saw Carlson in a few days afterward. I found him in his office in New York City. I went to New York the day after I learned the Traction hadn’t cost $20,000. I was determined to *823find out what had become of the rest of the money. I went to Mr. Carlson’s office, bnt he was not there. I waited for him, and when he came into his office he was very mnch taken back to see me, and asked me what I was doing in New York. It was two or three days before Christmas, 3913. I had brought my little daughter to New York with me. I said, ‘What would I be doing in New York? I am here doing a little Christmas shopping.’ Then he interrupted me. ‘How is David?’ he said. I said, 'Want to see you about that; doctor is not well.’ He expressed his sorrow. I said, 'He is grieved, and I myself have called to know why things are at such a standstill with the Traction Company— where the money has gone. We want a friendly accounting.’ Mr. Carlson said immediately, 'That can all be attended to, Mrs. Fuller; all the files are in the possession of C. S. Calvert in Hendersonville. If there is anything out of the way, we will get these files from Calvert. In fact,’ he said, 'I will send for them. I have sent for them to come up here. Rut I will send a telegram, not to send them, but keep them till you return.’ 'Well,’ I said, 'we can easily account for the first $10,000. The road cost $20,000. You put in $10,000 and doctor $10,000. Is that not so?’ 'Yes,’ he said; 'the road cost $20,000. I put in $10,000 and doctor put in $10,000.’ I said, 'Mr. Carlson, I know to the contrary. I have learned from very good information in Hendersonville that the road only cost $7,500 in cash, with the assumption of a mortgage of $7,500. Where is the rest of the money?’ He began to mutter and halt and clear his throat, and to tell me that he had a very bad cold. 'Well,’ I said, 'where is the original contract between you, purchasing-the Traction Company, with Staton and Pace?’ He said, 'That paper is with all the records of the Traction together. You can have them any time you like. I will let you look at them.’ I said, ‘I would like to see that paper.’ I never saw it. I never have seen it.”

The defendant, at the proper time, moved to nonsuit the State, which motion was overruled. There was a verdict of-guilty. Defendant then moved in arrest of judgment, which motion also was refused. He took exceptions to both rulings. Judgment, and appeal by defendant.

Defendant contended in this Court that there was a variance between the allegations and the proof.

Attorney-General Bickett and Assistant Attorney-General Oalveri for the State.

Smith & Shipman and Winston & Biggs for defendant.

Walker, J.,

after stating the case: The motion to nonsuit requires that we should ascertain merely whether there is any evidence to sustain the allegations of the indictment. The same rule applies as in civil cases, and the evidence must receive the most favorable construction *824in favor of the State for the purpose of determining its legal sufficiency to convict, leaving its weight to be passed upon by the jury. S. v. Carmon, 145 N. C., 481; S. v. Walker, 149 N. C., 527; S. v. Costner, 127 N. C., 566. The effect of Laws 1913, ch. 73, allowing a motion for non-suit in a criminal case, was- considered in S. v. Moore, 166 N. C., 371; S. v. Gibson, 169 N. C., 318. Where the question is whether there is evidence sufficient to warrant a verdict, this Court considers only the testimony favorable to the State, if there is any, discarding that of the prisoner. S. v. Hart, 116 N. C., 976. The weight of the evidence and the credibility of the witnesses are matters for the jury to pass upon. S. v. Utley, 126 N. C., 997. Applying these familiar principles to the case under consideration, we are constrained to hold that the conviction of the defendant is sustained by the evidence.

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. S. v. Phifer, 65 N. C., 321; S. v. Whedbee, 152 N. C., 770. 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. S. v. Whedbee, supra. There is proof in this case of every element of the crime. Mrs. Fuller’s testimony, if true, is of itself sufficient to justify a verdict of guilty. The representation was that defendant could buy the stock of the railway traction company for $20,000, but for no less. Dr. Fuller did not wish to invest so much in it, his share being one-half, or $10,000, and he asked Carlson if he could not get it for $18,000, to which the latter’s reply was, “No; I have tried that, but it won’t do. They won’t take less than $20,000. Another thing, there is a man in town who wants that Traction; he comes from Brooklyn, and he will beat us to it if we don’t get it. How soon do you think you will get that $10,000 that you will put in with me ?” Dr. Fuller replied, “There is no trouble about my share in the Traction; you can go ahead and do what you can about the deal.” This representation as to price of the stock was false to the knowledge of Carlson. He had already bought it, or taken an option to buy it, for $15,000. At first the owners of the stock, U. G-. Staton and Dr. D. S. Pace, offered to sell to him at $17,000, and Carlson then offered $12,000, the parties finally agreeing on $15,000 as the price. Carlson, apparently impecunious, went to see Dr. Fuller and even borrowed from him the $50 with which to make the deposit required “to bind the bargain.” There was evidence that he was acting stealthily *825and with the purpose of concealing the fact that he was negotiating for the purchase for Dr. Fuller, as well as himself. After urging Dr. Fuller, then 73 years old, to pay his part of the purchase money, he finally got him to do so, receiving his check for the $10,000, of which he paid $7,500 to the owners of the stock, kept $2,500 for himself, and left a note and mortgage for $7,500 standing on the property. He never paid any part of his share of $10,000. Without regard to the other evidence of a damaging character, what we have just recited would seem to be a sufficient answer to the motion for a nonsuit. We have proof of the representation of a subsisting and material fact, viz., that he could buy the stock at not less than $20,000, and the falsity of it; that the representation was made with intent to deceive and defraud Dr. Fuller of his money, and that it actually did deceive and defraud him. There can be no question that there is ample evidence to show the false representation, and that it was calculated and intended to deceive Dr. Fuller, and did deceive him, appears when we consider the testimony of Mrs. Fuller that her husband knew nothing as to what had passed between Carlson and the owners of the stock, and was ignorant of the fact that Carlson had actually purchased the stock, under the option, for $5,000 less than he had represented the price to be; that Dr. Fuller wanted to buy it for less than $20,000, and Carlson told him that it could not be done, and that finally Carlson obtained the $50 in cash, and afterwards the check for $10,000. Was he deceived by the representation? Mrs. Fuller testified : “Dr. Fuller said, 'Charles, this is a great thing, that we are getting this Traction together. It will be a great thing to own this stock with you — just the two of us.’ And Mr. Carlson said, 'Tes, and we don’t want to let this matter get out in town.’ I said, 'For what reason, Mr. Carlson?’ He said, 'Why, don’t you know that if Dr. Fuller was thought to be in the transaction, they would think I was “putting one over them” ?’ This was the first time I had ever heard the expression. He said, 'It is all right after a few weeks. We can mention that the doctor is in it; but just at present we won’t say anything about it at all.’ And then he asked me to be very careful about what I said. And he told me later not to let anything get out.”

Carlson did not like the idea of the doctor giving him his check for the $50, but insisted that the check should be made payable to some one else who could have it cashed. The jury might well have inferred from all this secrecy and suppression of the facts, and especially of the connection of Dr. Fuller with the transaction, that Carlson feared, if it became'known that Dr. Fuller was his copartner, he might find out what had been paid for the property, and the efforts of Carlson to cheat and defraud him might be foiled. That Dr. Fuller was actually deceived and that Carlson obtained the money or the check by reason of the deception, clearly appears from the evidence favorable to the State.

*826It would be useless to dwell long upon tbe phases of tbe evidence which tend to establish several elements of the crime and the guilt of the accused, nor is it necessary that we should point out any conflict in the evidence, because we are not permitted to decide as to its weight. To do so would invade the province of the jury. The evidence is quite as strong as in some cases where convictions of crimes have been sustained by this Court. S. v. Carmon, 145 N. C., 481; S. v. Walker, supra, and cases cited. We refer especially to S. v. Matthews, 121 N. C., 604, which was an indictment for cheating by false pretense. This is the syllabus in that case:

“1. If a person by his acts or conduct induces another to believe that a fact is really in existence, when it is not, and thereby obtains money or property, he comes within the scope of the statutes against false pretenses.
“2. Where on the trial of an indictment for obtaining money under false pretenses there was evidence that the defendant obtained money from the deceased husband of the witness to get an Electropoise, which defendant, claiming to be an agent therefor, had agreed to sell to the husband, and which defendant claimed to be in the express office, when there was, in fact, no Electropoise in such office, and that the defendant kept the money so obtained: Held, that the evidence was sufficient to be submitted to the jury.”

The conduct of defendant when Mrs. Fuller met him in New York at his office, and their conversation, were circumstances' which the jury could consider in addition to evidence already commented upon.

There was no substantial variance, if variance at all, between the allegations of the indictment and the proof. There must, of course, be allegata and probata, and they must correspond. The State cannot by indictment charge a defendant with the commission of one offense and convict him upon proof of another offense. S. v. Gibson, 169 N. C., 318. But that is not what has been done in this case. The charge is that defendant represented that they could not buy the stock, not the stock and something else, at less than $20,000, which was knowingly false, in that he had already contracted to buy it at less than that amount. There was evidence to sustain this charge. U. G. Staton testified: “Dr. D. S. Pace and I owned stock in the Hendersonville Traction Company, and sold the same to C. A. Carlson about the first of November, 1912, and Carlson was to pay us $7,500 in cash when we made the stoclc over to him." Mrs. Fuller testified that in a conversation between Carlson and Dr. Fuller, Carlson said, “David, we can get this Hendersonville Traction Company for $20,000 — we can go into it together and ■own all the stoclc jointly.” Defendant, in his testimony, also referred to the transaction as one for the purchase of the stock of the Traction Company. His language was: “I said Staton would sell the stock for $20,000.” *827There is plenary evidence that all tbe representations were false, as we have shown and as appears from the testimony of Mrs. Fuller. It cannot be successfully contended that there is no evidence that defendant was deceived by the false representation and was thereby induced to part with his money, and that he was greatly impoverished by the conduct of the defendant, not being able to attend his brother’s funeral because of the lack of money with which to pay his expenses. This is mentioned to show how easily he became the prey of the defendant’s duplicity and deceit, if the evidence of Mrs. Fuller is believed. There is much of this evidence that he contradicted, but the jury has settled the conflict of evidence against him.

The motion in arrest of judgment was properly overruled.

The indictment is drawn according to approved precedents. It alleges that the defendant did falsely pretend:

1. That the stock of the Hendersonville Traction Company, a corporation, could be purchased for $20,000, and no less.

2. That he, the said C. A. Carlson, had $10,000, and that if the said David J. Fuller would furnish the other $10,000, he, C. A. Carlson, would purchase all of the stock in the Hendersonville Traction Company and that they would hold it jointly, and unincumbered.

And these representations are thus negatived:

1. That the stock of said Traction Company was not held at $20,000, but that he, the said Carlson, had at the time of making said representation an option on all of said capital stock of said Hendersonville Traction Company for the sum of $16,000.

2. That he did not have $10,000, or any sum, to use in the purchase of stock in said Hendersonville Traction Company.

It is true that the indictment should negative by special averment the truth of the pretense alleged, 19 Cyc., 426; but there is such an averment in this bill, and the allegation of the representation and its falsity is sufficient, even within the principle stated in the eases cited by the defendant. S. v. Pickett, 78 N. C., 458; S. v. Lambeth, 80 N. C., 393; S. v. McWhirter, 141 N. C., 809, and in Rex v. Perrott, 2 Maule & Selwyn, 379.

Every indictment must be certain to a general intent. It must.state all the facts and circumstances which constitute the offense with such certainty and precision that the defendant may be enabled to see whether they constitute an indictable offense. The object of an indictment is. to inform the prisoner with what he is charged, as well to enable him to make his defense as to protect him from another prosecution for the same criminal act. It should, therefore, be reasonably specific and certain in all its material averments, S. v. Mill, 79 N. C., 656; S. v. Lambeth, supra. Within this rule, the particulars of the representation and its falsity are *828plainly stated, so that tbe defendant must bave been apprised of tbe nature of tbe crime with wbicb be was charged.

There are some matters called to our attention wbicb are irrelevant to tbe question involved. Tbe stock without tbe plant or assets of .the company would be valueless, as tbe former is issued and based upon tbe latter, and tbe parties must bave supposed that when they were buying stock they were, to become tbe real owners of tbe company’s property to tbe extent that there was no exception from tbe transfer. But that is immaterial, as tbe only question is whether defendant made tbe representation as to tbe stock knowing it to be false, and did be thereby deceive Dr. Fuller and obtain bis money. This issue was raised by tbe indictment and tbe plea, and there was evidence to sustain tbe verdict. S. v. Matthews, 121 N. C., 604.

There is no error in tbe record, and it will be certified accordingly.

No error.