State v. Wallace

213 S.E.2d 420 (1975)

25 N.C. App. 360

STATE of North Carolina v. Willie WALLACE.

No. 754SC4.

Court of Appeals of North Carolina.

April 16, 1975.

Certiorari Denied June 6, 1975.

*422 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Charles M. Hensey, Raleigh, for the State.

Howard P. Satisky, Raleigh, for defendant appellant.

Certiorari Denied by Supreme Court June 6, 1975.

HEDRICK, Judge.

Defendant contends that the judgment should be arrested because the bill of indictment upon which he was tried and convicted was fatally defective. A motion in arrest of judgment is one made after verdict and to prevent entry of judgment, and is based upon the insufficiency of the indictment or some other fatal defect appearing on the face of the record. State v. McCollum, 216 N.C. 737, 6 S.E.2d 503 (1940). A motion in arrest of judgment based upon such a defect may be made for the first time on appeal, and in the absence of a motion, the appellate court ex mero motu will review the record proper for such defect. State v. Kirby, 276 N.C. 123, 171 S.E.2d 416 (1970). Accordingly, we have examined the face of the record, and in particular the bill of indictment, and find that it is free from any fatal defects. See State v. Munday, 78 N.C. 460 (1878).

By assignments of error 4, 11, 12, 16, and 19, defendant contends the trial court erred to his prejudice with respect to certain evidentiary rulings during the course of the trial. We have reviewed each of the exceptions upon which these assignments of error are based and find no error prejudicial to the defendant. We, nevertheless, discuss two of the assignments of error individually.

By assignment of error 11, defendant argues that the court erred in sustaining an objection by the prosecutor to a question propounded to Mrs. Smith on cross-examination about what had happened to certain money allegedly borrowed by her and her husband from Jesse Bethea. As Mrs. Smith had emphatically denied knowing anything about the alleged transaction, we can discern no error in the court not allowing defendant's counsel to pursue the matter on cross-examination.

By assignment of error 19, defendant argues that it was prejudicial error for the trial court to sustain objections by the State to two questions in which the defendant attempted to elicit from Jesse Bethea testimony to the effect that Mrs. Smith was aware that he had a deed of trust on the property. Obviously, this ruling was not error since Mr. Bethea had already testified that he told both Mr. and Mrs. Smith prior to their purchase of the house that he had two deeds of trust on the property.

*423 Next, defendant contends that the trial court erred in overruling his motion for judgment as of nonsuit at the close of the State's evidence and in submitting the case to the jury at the close of all the evidence. Defendant did not renew his motion for judgment as of nonsuit at the conclusion of the evidence. However, pursuant to G.S. § 15-173.1 we review the sufficiency of the evidence to sustain the verdict.

It is well settled that the elements of the crime of obtaining property by false pretense are (1) a false representation of a subsisting fact, whether in writing, by words, or by acts, (2) which is calculated to deceive and intended to deceive, (3) which does in fact deceive, and (4) by which one obtains something of value from another without compensation. State v. Banks, 24 N.C.App. 604, 211 S.E.2d 860 (1975); State v. Houston, 4 N.C.App. 484, 166 S.E.2d 881 (1969). It has also been held that the false representation that land is free and clear of all encumbrances when knowingly made in order to effect a sale may be the subject matter of this offense. State v. Munday, supra; State v. Banks, supra.

In the present case, defendant contends that there was not sufficient evidence to submit the case to the jury primarily because (1) the evidence does not disclose whether the defendant made a false representation to Mr. Smith with respect to the existence of deeds of trust on the property and (2) the evidence does not show that Mr. and Mrs. Smith purchased the property in reliance upon any false representation by him. We do not agree. Although Mr. Smith died prior to defendant's trial, uncontradicted evidence was introduced showing that the defendant, who was engaged in the trade of the construction and sale of houses, represented to both Mr. and Mrs. Smith that the property in question was free and clear from any and all encumbrances. The warranty in the deed so stated. The conclusion that this representation was false, in light of the existence of the deeds of trust on the property at the time of the purchase, also is clearly justified. Furthermore, without stating all the evidence showing that Mr. and Mrs. Smith relied upon the representation of the defendant in purchasing the property, we note that Mr. and Mrs. Smith made a $1,000.00 cash down payment and executed a purchase money deed of trust for $9,150.00 in return for a warranty deed on the house and lot. When all the evidence introduced at the trial is viewed in the light most favorable to the State, resolving any uncertainties and discrepancies in its favor and giving the State the benefit of all legitimate inferences which might be drawn from the evidence, we are of the opinion that there was sufficient evidence introduced as to each of the elements of the crime to require submission of the case to the jury and to support the verdict. See State v. Banks, supra.

Defendant's remaining assignments of error all relate to the trial court's charge to the jury.

By assignment of error 30, defendant contends the trial judge erred when he stated:

"On the other hand, if he made no false representation to them, of course, he would not be guilty, or if he did but if it was not calculated to deceive and did not deceive the purchasers, then, of course, he could not be guilty." [Emphasis ours]

However, upon a reading of the entire charge, it is perfectly obvious that the trial judge was not requiring the jury to negate two elements of the crime of false pretense before it could find the defendant not guilty. The trial judge correctly set forth each of the essential elements of the crime immediately prior to the portion of the charge objected to and thereafter clearly instructed the jury as follows:

"If he did make a false statement and it was not for the purpose of deceiving them, he would not be guilty. Or if he made a false representation to them for the purpose of deceiving them but, if in fact, it did not deceive them, he would not be guilty." [Emphasis ours]

*424 This assignment of error is overruled.

By assignments of error 28, 29, 31 and 34, defendant contends that the court failed to properly apply the evidence to the fourth essential element of the crime of false pretense, which requires that the defendant obtain something of value from another without compensation. We do not agree. The court on several occasions in its instructions to the jury enumerated the four essential elements of the crime charged. On each occasion the trial judge correctly stated that one of the essential elements was that the defendant receive something of value without compensation. Furthermore, the court applied the evidence of the case to this element of the offense on each occasion by referring to the evidence that Mr. and Mrs. Smith paid money to the defendant in exchange for the deed to the lot which the defendant represented to be free and clear of any encumbrances.

Based on six exceptions noted in the record, defendant next contends the trial court erred to his prejudice in the portion of the charge in which it allegedly stated the contentions of the parties in that the "contentions" were not supported by the evidence. The general rule is that objections to the charge in reviewing the evidence and stating the contentions of the parties must be made before the jury retires so as to afford the trial judge an opportunity for correction; otherwise, they are deemed to have been waived and will not be considered on appeal. State v. Tart, 280 N.C. 172, 184 S.E.2d 842 (1971); State v. Virgil, 276 N.C. 217, 172 S.E.2d 28 (1970). Defendant in the instant case admits that he did not object to the remarks of the trial judge, and we are of the opinion that the statements objected to are of such a nature as to call for application of the general rule stated above. These assignments of error are overruled.

Defendant has other assignments of error which we have carefully examined and find to be without merit.

Defendant had a fair trial free from prejudicial error.

No error.

PARKER and CLARK, JJ., concur.