
    STATE v. R. P. ROBERTS.
    (Filed 24 January, 1925.)
    1. Criminal law — False Pretense — Evidence—Questions ior Jury — Non-suit.
    Where there is evidence under a criminal indictment that the defendant knowingly and falsely misrepresented that he owned a certain tract of land of value by reason of its having on it a mill shoal, and. that he had included it within the description of certain tracts he had mortgaged to the prosecuting witness to secure a loan, and that acting thereon and induced thereby the prosecuting witness had loaned the money, and that the lands included in the mortgage were grossly inadequate to secure the loan resulting in a loss to the prosecuting witness, an illiterate man, who could not read and understand his deed, or know that the mill shoal tract had not been included in the description, it is sufficient to sustain a verdict of conviction. 0. S., 4643.
    2. Same — Burden of Proof.
    Upon a criminal indictment for obtaining a thing for value by false pretense, the plea of not guilty places the burden of proof on the State to establish defendant’s guilt beyond a reasonable doubt. O. S., 4277.
    3. Criminal Law — False Pretense — Collection of Debt — Appeal and Error.
    It appearing upon the trial of the criminal offense of obtaining goods under false pretense, that the jury have found the defendant guilty upon competent evidence: Held, the defendant’s objection that the prosecuting witness was attempting to collect a debt by criminal process cannot be sustained on appeal.
    Appeal by defendant from Bay, J., and a jury, at August Term, 1924, of CheeoKee.
    Tbe substance of tbe contentions are as follows: Tbe defendant, Roberts, represented to tbe prosecuting witness, A. M. Garrett, wbo could not read and write, that be owned two pieces of land situated in Beaver Dam Township, Oberokee County. Upon one of these tracts tbe defendant at tbe time of tbe treaty represented to Garrett that there was a mill shoal. Tbe intent with which these representations were made to Garrett was to obtain from him a loan of $200, to be secured by a trust deed upon tbe two tracts, one of which bad tbe mill shoal on it. Tbe inducement to Garrett to lend tbe money was tbe enhanced value of tbe mill shoal tract by reason of its having this shoal upon it. Garrett did lend tbe money to tbe defendant in consequence of these representations, and defendant delivered to him a trust deed upon two tracts of land to secure payment of tbe $200 borrowed, but one of these tracts was not tbe one which be represented to Garrett be Owned and upon which was the mill shoal. This mill shoal tract be did not own. Garrett, being illiterate, did not discover tbat tbe defendant bad worked tbis wrong upon bim until about a year after tbe trust deed was delivered to bim. Tbe two tracts of land contained in tbe trust deed were of very small value, not sufficient to repay Garrett tbe money advanced. Tbe defendant paid tbe amount down from $200 to $120. Tbe tract of land wbicb tbe defendant represented be owned and tbe mill sboal was on, belonged to some other person, and at tbe time tbe representation was made, be did not own tbe same. Tbe defendant denied any false representation, but claimed tbat it was a simple transaction in wbicb be borrowed $200 from tbe prosecuting witness upon tbe two tracts of land conveyed in tbe trust deed; tbat be made no representation of any sort in regard to tbe mill sboal being upon tbe place, and tbat be paid tbe amount down'to $120, and would bave paid tbe rest in tbe course of time — but tbe trust deed bad run without tbis payment for nearly four years.
    Tbe prosecuting witness, A. M. Garrett, testified in part:
    “I know tbe defendant, R. P. Roberts. I let bim bave $200. He was to make me a deed of trust against two pieces of land. He brought me a deed of trust purporting to be on these two tracts of land. I cannot read. He told me tbe tracts of land before be drew tbe deeds of trust. I know tbe tracts of land I was to get tbe deed of trust on. I delivered bim $100 when be brought tbe deed of trust and $100 later. Tbe deed of trust be delivered did not cover tbe tract of land be told me it did. I know part of tbe land tbis deed of trust is given on. There is two tracts in tbe deed of trust. I know tbe one be represented to be 40 acres. I know tbe tract on tbe deed of trust be delivered, tbe 40 acres, it is worth $10 or $15. It is on tbe side of a laurel mountain. I know where tbe other tract lies but I don’t know tbe bounds of it. Tbe second tract is just a small place, not an acre of it. He represented a mill sboal on tbe tract be was to give tbe deed of trust on.
    “Q. Is there any mill sboal on tbe two tracts covered by tbis deed of trust? Answer: No, sir.’
    “Tbis was about four years ago 'this October. It was in tbis county. Tbis is tbe deed of trust and note be delivered to me to secure tbe $200. I bad it read over to me since.” *'
    There was a verdict of guilty. Defendant excepted to tbe judgment pronounced,’ assigned numerous errors and appealed to tbe Supreme Court.
    
      Attorney-General Manning and Assistant Attorney-General Nash for the State. ■
    
    
      Moody & Moody for defendant.
    
   ClaeKSON, J.

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 and 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.

No error.  