State v. . Burke

12 S.E. 1000, 108 N.C. 750

• Court: Supreme Court of North Carolina
• Decided: February 5, 1891
• Status: Published

Opinion

Mek&uíON, C. J.:

The indictment is not very formal and precise. There is some unnecessary repetition and redundancy in charging the offence that might well be omitted, but it serves every essential purpose. The false pretence, and the purpose to defraud thereby, are charged in the words of the statute, and clearly.

The word “said,” which, strictly, ought to appear in the indictment next before the word “mule,” at the end of the other words, “ whereas, in truth and fact,” is obviously and sufficiently implied from the connection and purpose plainly appearing. The inadvertent omission does not affect the substance or prejudice the defendant.

The false representations as to certain qualities of the mule certainly constituted false pretence when made, as charged, to defraud. They are not the mere “tricks of trade,” bluster, puffs and empty boast on the part of one putting his property on the market. They were seriously made with particular motive in connection with a proposition to sell the mule for a price to be increased by reason of them and the confidence they gave rise to. As charged, thej'’ were made in business earnest on the part of the defendant and so accepted and acted upon by the prosecu!or, and, as charged, they were made with the positive intent to defraud. Thus the offence is sufficiently charged. State v. Hefner, 84 N. C., 751; State v. Munday, 78 N. C., 448; State v. Mickle, 94 N. C., 843; State v. Sherrill, 95 N. C., 663. It was not necessary to charge or prove an intent to defraud any particular person. The Code, § 1025.

There is error. The judgment must be reversed and further proceedings had in the action according to law.

Reversed.