Tbe defendant moved for judgment of nonsuit at tbe close of tbe State’s evidence and at tbe close of all tbe evidence. C. S., 4643. We think tbe motion was properly overruled.
In S. v. Phifer, 65 N. C., p. 325, Reade, J., said: “We state tbe rule to be, tbat a false representation of a subsisting fact, calculated to deceive, and wbicb does deceive, and is intended to deceive, wbetber tbe representation be in writing or in words, or in acts, by wbicb one man obtains value from another, without compensation is a false pretense, indictable under our statute. But this must not be understood to extend to the mere 'tricks of trade,’ as they are familiarly called, by wbicb a man puffs bis wares and deceives no one — as, this is an excellent piece of cloth; or, this is tbe best horse in tbe world. Against such craft, ordinary prudence is a sufficient safeguard; or if it be not, tbe injured party must be left to bis civil remedy.” C. S., 4277.
To constitute tbe crime here charged of false pretense, a mistake, a pretense, a false pretense, a mere promise or opinion is not sufficient. It must be a (1) false representation of a subsisting fact, wbetber in writing or in words or in acts; (2) wbicb is calculated to deceive and intended to deceive'and (3) wbicb does in fact deceive (4) by wbicb one man obtains value from another without compensation.
Judged by this well-settled law, what are tbe facts? As an inducement to obtain tbe money, defendant represented tbat be owned two tracts of land and on one tract there was a “mill shoal.” This “mill shoal” tract was well known to prosecutor and of considerable value, and defendant agreed to give a deed -in trust on this tract and another. Tbe deed in trust on tbe land defendant gave did not cover tbe “mill shoal,” and be did not own tbe tract tbat tbe “mill shoal” was on. Prosecutor could not read and did not discover this for sometime after tbe transaction. Tbe lie about tbe subsisting fact was defendant representing a mill shoal to be on tbe tract be gave tbe deed in trust on' and be owned tbat tract; whereas, in fact, be did not own tbat tract and tbe deed in trust given did not cover tbe tract with a “mill shoal” on it. Tbe land on wbicb tbe deed in trust was given was a different tract and of little value. S. v. Munday, 78 N. C., p. 460; S. v. Carlson, 171 N. C., 818; S. v. McFarland, 180 N. C., 726.
Tbe court below on tbe presumption of innocence and reasonable doubt, charged tbe jury: “Tbe defendant, to this bill of indictment, pleads not guilty, and says tbat be is not guilty and swears tbat be is not guilty before you, and tbe law immediately, upon bis plea of not guilty, raises a presumption' of innocence in bis favor, wbicb presumption remains with him throughout the-trial until tbe State has proven to you beyond a reasonable doubt, if it does so prove, tbat be be guilty. And tbe law, to be consistent, will not presume a man to be innocent *96and then make bim offer evidence that be is not guilty. Tbe law casts tbe burden upon tbe State to satisfy you beyond a reasonable doubt of bis guilt.” Tbe court further read C. S., 4277 — obtaining property by false token and other false pretense, and charged them as follows: “Now that is tbe statutory definition, and this bill is drawn in accordance with this statute. But, before you can proceed to determine intelligently in this cause, you will have to have a definition of false pretense, which, definition is defined to be in an indictment for obtaining goods by false pr.etense under tbe statute — now this must be a false representation of a subsisting fact, that is representing a fact existing which does not exist. It is a lie told and acted and operated upon tbe other party to bis hurt, and which was in fact a misrepresentation, and which caused bim to separate with things of value to bis hurt. There must be a false representation of subsisting fact calculated to deceive the party to which it is made, and does deceive, whether it be in writing, words or acts, whereby the defendant obtains something for (of) value from the other without compensation. Now that could not be clearer, no matter how long I might dilate upon it and talk about it. A false representation of a subsisting fact, calculated to deceive, intended to deceive, and which does deceive, whether it be in writing, words or acts, whereby one man obtains value from another without compensation. Now you will keep that definition before you when you go to consider the guilt of this defendant.”
The court below gave proper instruction as to the elements comprised in the offense of false pretense.
We do not think the facts here constitute a mere promise to be performed in the future, as in S. v. Knott, 124 N. C., p. 814, cited by defendant, but a false representation of a subsisting fact.
The defendant in his brief says: “It appears to us that the -whole record contains a state of facts, plainly showing that the prosecuting witness had resorted to the criminal side of the docket in order to enforce the collection of a simple debt, and we feel that upon this record the defendant is entitled to a new trial and a fair charge by the court.”
The criminal, side of the docket should never be used for the collection of a debt. Taking the defendant’s version, this may be true, the prosecutor with knowledge of the wrong waited a long time before bringing the criminal action, but, on the State’s testimony, which was accepted by the jury, the charge of false pretense was sustained and the jury believed the State’s evidence.
From a critical examination, we cannot find any error in the exceptions taken to the evidence or to the charge that we can hold for prejudicial or reversible error.