State v. . Whidbee

32 S.E. 318, 124 N.C. 796, 1899 N.C. LEXIS 118

• Court: Supreme Court of North Carolina
• Decided: February 21, 1899
• Status: Published

Opinion

Faikcloth, O. J.

The defendant stands indicted for obtaining goods under a false pretence. On July 12, 1897, the defendant certified in writing that he had received of Fulcher “twentv-four dollars in merchandise, the amount of my cheek for the quarter ending October 30, 1897, which check I hereby pledge in payment of same.” He failed to apply said check or the proceeds thereof according to agreement.

The defendant moved to quash the indictment on the ground that it stated no indictable offence, which motion was allowed and the State Solicitor appealed.

There was no error. The offence charged does not fall within the meaning of The Code, Section 1027. The fact that the defendant did not have and could not have the check for the quarter, beginning August 1st to October 30th, was plain on the face of the writing, and was or ought to have been known to the prosecutor, and whatever the motive was, it was not a fraudulent representation. Suppose the defendant had certified on July 12th that he would represent the firm of A. & Co., of New York, during tbe same quarter. There would be no false statement of an existing fact, and the prosecutor would see and know it.

Affirmed.