DOUGLAS, J., dubitante. The indictment charges that the defendant "did unlawfully, wilfully, and feloniously obtain from J. M. Surrat and another goods, wares, and merchandise to the amount of $22.34, asserting at the time that he was the owner of a chose in action against the Southern Railway Company, and agreeing in writing to apply said wages, or the proceeds, to the amount of $22.34, to the discharge of said debt, whereas the said Will Torrence has failed, or refused, to so apply said wages, but disposed of the same in some other manner than agreed in said representation, contrary to the form of the statute," etc. The defendant moved in arrest of judgment because "the bill of indictment did not charge an indictable offense." On the argument this was treated as an indictment for false pretense, and, if so, the motion should have been granted; for false pretense is the "false representation of an existing fact, made with intent to deceive, and which does deceive." But an examination shows that the indictment is under Code, sec. 1027, for "obtaining advances upon representation of the ownership of property and promising to apply the same to payment of the debt and failing to do so." The indictment follows the statute, and there is no ground for the motion in arrest of judgment unless the statute is in conflict with the constitutional provision (Art. I, sec. 16) prohibiting "imprisonment for debt, except in cases of fraud," and we can not see that it is. It is not the failure to pay the debt which is made indictable, but the failure to apply certain property, which, in writing, has been pledged for its payment, and advances made on the faith of such pledge. It is on the same footing as Code, sec. 1089, for disposing of mortgaged property. It is the fraud in (554) disposing of or withholding property which the owner has in writing agreed shall be applied in payment of advances made on the faith of such quasi mortgage, to one who has thus pro tanto become the owner thereof, and the subsequent *Page 376 conversion of said property, and diversion of the proceeds to the detriment of the equitable owner and in fraud of his rights. The evident object of the statute was to enable persons to obtain advances upon articles whose nature, or whose value, would not justify the execution of a formal mortgage thereon. The only case so far decided upon this section (State v. Whidbee, 124 N.C. 796) has no application; for that went upon the ground that the prosecutor, upon the face of the writing, knew that the property was not in existence, and that the defendant could have had no ownership of the article pledged, because it was a check to be issued at a future day. Here the written pledge upon which the advances were made is of a chose in action — an indebtedness to the defendant by the Southern Railway Company for past-due wages — and is in the following words: "I, Will Torrence, do hereby assert, that I am the owner of property to the amount of fifty dollars valuation, said property consisting of a chose in action against the Southern Railway Company, because of wages earned by me in May, 1900, and yet unpaid by the said Southern Railway Company. Now, in consideration of the fact that J. M. Surrat Co. have this day allowed me advances on said wages to the amount of $20, I agree to apply said wages, or the proceeds thereof, to the amount of twenty dollars, to the discharge of said debt due J. M. Surrat Co., on 20 June, 1900. Witness my hand and seal, this 20 May, 1900." (Signed and sealed by Will Torrence, and witnessed by C. A. Surrat.) The evidence justified the Court in refusing the prayer to instruct the jury that, if they believed the (555) evidence, they should find defendant not guilty, and in instructing them, if they believed the evidence, to find him guilty.
No error.