STATE of North Carolina
v.
Ralph Glenn HINES.
No. 771SC768.
Court of Appeals of North Carolina.
April 18, 1978. Certiorari Denied and Appeal Dismissed June 6, 1978.*783 Atty. Gen. Rufus L. Edmisten, by Associate Atty. Gen. Thomas H. Davis, Jr., Raleigh, for the State.
Aldridge & Seawell, by G. Irvin Aldridge, Manteo, for defendant appellant.
Certiorari Denied and Appeal Dismissed by Supreme Court June 6, 1978.
*784 MORRIS, Judge.
Defendant has raised three primary issues in his brief: (1) Is it necessary that the bill of indictment specifically allege that the victim was in fact deceived? (2) Can there be a conviction under G.S. 14-100 when some compensation is given for the services obtained by false pretenses? (3) Can the defendant be convicted of a violation of G.S. 14-100 when adequate compensation is in fact given but the compensation actually paid is less than the compensation promised?
First, defendant strongly urges that the failure of the bill of indictment to charge that Miss Etheridge was in fact deceived necessitates the dismissal of the charges against him. He contends (1) that State v. Hinson, 17 N.C.App. 25, 193 S.E.2d 415 (1972), cert. denied 282 N.C. 583, 194 S.E.2d 151 (1973), cert. denied 412 U.S. 931, 93 S. Ct. 2762, 37 L. Ed. 2d 159 (1973), should be overruled but (2) that even if it is not overruled it is distinguishable.
In Hinson this Court squarely confronted the question of whether the indictment had to charge specifically that the victim was in fact deceived when the indictment clearly showed a relationship between the false pretense and the victim's conduct. We concluded that the specific allegation was unnecessary. In the present case, the relationship between the false pretense and the victim's conduct is clear. The defendant, pretending to have the authorization to do so, offered the victim a State job, and the victim went to work. Thus, Hinson is controlling under the facts in this case, and defendant's arguments for our overruling it are not persuasive. Therefore, for the reasons stated in Hinson, we again held that the specific allegation in the bill of indictment that the victim was in fact deceived is unnecessary when the facts alleged suggest that the false pretense was the probable motivation for the victim's conduct.
Defendant has urged that Hinson is distinguishable. He argues that the facts alleged in the indictment do not suggest that the victim was motivated by the fraudulent representations. The indictment alleged that Mr. Hines
".... did unto Karen Ann Etheridge falsely pretend that, he, the said, RALPH GLENN HINES, was employed by the Administrative Office of the Courts of the State of North Carolina as Special Inspector in charge of the Region I Field Office, Manteo, North Carolina, and that, he, the said, RALPH GLENN HINES, had received authority to employ Karen Ann Etheridge as an employee of the State of North Carolina at an annual salary of $10,089.56 in the position of Co-ordinator of Region I pursuant to a letter dated December 7, 1976 from Franklin E. Freeman, Jr., Acting Director of the Administrative Office of the Courts of the State of North Carolina; whereas in truth and in fact, he, the said, RALPH GLENN HINES, was not employed by the Administrative Office of the Courts of the State of North Carolina as a Special Inspector in charge of the Region I Field Office, and he, the said, RALPH GLENN HINES, did not receive authority from Franklin E. Freeman, Assistant Director of the Administrative Office of the Courts pursuant to a letter dated December 7, 1976 to employ Karen Ann Etheridge as an employee of the State of North Carolina in the position of the Co-ordinator of Region I at an annual salary of $10,089.56. By means of which said false pretense, he, the said, RALPH GLENN HINES, knowingly, designedly and feloniously, did then and there unlawfully attempt to obtain and did obtain from Karen Ann Etheridge services, goods, and things of value, to wit: secretarial services as a purported employee of the State of North Carolina ...."
The indictment, thus, alleges facts sufficient to suggest that the false pretense was the probable motivation for the victim's conduct. Applying the principles enunciated in Hinson, we are of the opinion that the indictment was sufficient in this regard.
Next, defendant contends that one cannot be lawfully convicted of a violation of G.S. 14-100 if any compensation is given. He relates this argument to three facets of *785 the case. First, he contends that his motion to dismiss should have been allowed because the indictment did not allege that the services were obtained "without compensation". Next he argues that his motion for nonsuit should have been allowed because the State failed to prove that the services were obtained "without compensation". Finally, he urges that the instructions to the jury were erroneous because the court failed to instruct the jury that a verdict of not guilty must be returned if the jury should find that any compensation at all was paid. This contention of defendant's is necessarily premised upon the position that "without compensation" is an element of the crime of false pretense which must be proved by the State and found by the jury.
Defendant relies on State v. Agnew, 33 N.C.App. 496, 500-501, 236 S.E.2d 287, 290 (1977), rev'd on other grounds, N.C., 241 S.E.2d 684, where this Court, quoting with approval from State v. Davenport, 227 N.C. 475, 495, 42 S.E.2d 686, 700 (1947), said:
"The essential elements which the State must prove to the satisfaction of the jury beyond a reasonable doubt in order to convict one of the crime of false pretense are as follows:
`"... [A] false representation of a subsisting fact [or of a future fulfillment or event as provided in G.S. 14-100 as amended in 1975], calculated to deceive, and which does deceive, and is intended to deceive, whether the representation be in writing, or in words, or in acts, by which one man obtains value from another, without compensation...."' State v. Davenport, 227 N.C. 475, 495, 42 S.E.2d 686, 700 (1947); see also State v. Roberts, 189 N.C. 93, 126 S.E. 161 (1925); State v. Wallace, 25 N.C.App. 360, 213 S.E.2d 420 (1975); State v. Banks, 24 N.C.App. 604, 211 S.E.2d 860 (1975)."
It does appear that this Court in Agnew and the Supreme Court in Davenport have recognized "without compensation" as an element of the crime. We think a closer look at the cases will show that this is not the case. The phraseology used in both cases came as a direct quote from State v. Phifer, 65 N.C. 321, 323 (1871). There the facts were these: Defendant went to the store of one Leopold Rosenthal and represented that he was the son of P. Phifer of New York and offered to sell to Rosenthal the goods of P. Phifer and Company. He also asked Rosenthal to cash several drafts on P. Phifer and Company but his request was refused. Subsequently he offered to buy a diamond ring and did obtain the ring paying for it by a draft on P. Phifer and Company. He represented to Rosenthal that the draft would be paid on presentation and Rosenthal delivered the ring to him in reliance on his representation that the draft would be paid on sight. The draft was returned protested and unpaid. Defendant was not the son of P. Phifer and knew the draft would not be paid. The words of the statute which the Court was asked to construe were "... by means of any forged or counterfeited paper in writing or in print, or by any false token, or other false pretense whatsoever, obtain. . . any money, goods, property, or other thing of value . . . ." (Emphasis supplied.) Rev.Code, Chapter 34 § 67. The defendant contended at trial, and the trial court agreed, that false pretense means the same as false token and that, regardless of how false the words, the use of mere words could never be sufficient to make out a case against the defendant. The Court discussed the offense at common law under Hen. 8, and 30 George II, and concluded that a promise to do something in the future or a representation of a future event would not come within the statute, but "a false allegation of some subsisting fact" would be indictable, and there need not be a token. The Court then stated the rule and included therein were the words "without compensation". Obviously in Phifer the victim received absolutely nothing, as is the case in a great many false pretense cases. The fact was certainly applicable. The Court did not discuss the question of the victim's compensation, nor was it before the Court. Because of Justice Reade's full and clear discussion of the offense, Phifer became the leading case in this State and has *786 been cited and quoted many times since the opinion was delivered. Our research indicates that in those cases wherein Phifer has been quoted, the quotation has included the phrase "without compensation". In those cases wherein the Court cites Phifer as the leading case but does not quote directly from it, the elements do not include "without compensation". For example, in State v. Hefner, 84 N.C. 751 (1881), and State v. Mikle, 94 N.C. 843 (1886), Justice Ashe quoted the entire paragraph from Phifer, but in State v. Eason, 86 N.C. 674 (1882); State v. Dickson, 88 N.C. 643 (1883); and State v. Mathews, 91 N.C. 635 (1884), he sets out the elements of the offense under § 67, Chapter 32, Battle's Revisal and cites Phifer but nowhere does the phrase "without compensation" appear. See also State v. Smith, 78 N.C. 462 (1878); State v. Mangum, 116 N.C. 998, 21 S.E. 189 (1895); State v. Matthews, 121 N.C. 604, 28 S.E. 469 (1897); State v. Whedbee, 152 N.C. 770, 67 S.E. 60 (1910); State v. McFarland, 180 N.C. 726, 105 S.E. 179 (1920); State v. Yarboro, 194 N.C. 498, 140 S.E. 216 (1927). An interesting treatment is found in State v. Carlson, 171 N.C. 818, 89 S.E. 30 (1916). Justice Walker, speaking for a unanimous Court, said:
"A criminal false pretense may be defined to be the false representation of a subsisting fact, whether by oral or written words or conduct, which is calculated to deceive, intended to deceive, and which does in fact deceive, and by means of which one person obtains value from another without compensation. S. v. Phifer, 65 N.C., 321; S. v. Whedbee, 152 N.C., 770, 67 S.E. 60 [27 L.R.A.(N.S.) 363]. In order to convict one of this crime, the state must satisfy the jury beyond a reasonable doubt (1) that the representation was made as alleged; (2) that property or something of value was obtained by reason of the representation; (3) that the representation was false; (4) that it was made with intent to defraud; (5) that it actually did deceive and defraud the person to whom it was made. S. v. Whedbee, supra." (Emphasis supplied.) 171 N.C. at 824, 89 S.E. at 33.
It seems abundantly clear that the Court never intended the victim's failure to receive compensation to be an element of the offense. Certainly, beginning with the statute codified as Potter's Revisal of 1819, laws of 1811, Ch. 814 § 2, through the present G.S. 14-100, there is and has been no statutory requirement that the State must prove that the defendant obtained the goods, property, things of value, services, etc., without compensation to the victim. Nor has our research disclosed a case in which the question of the victim's compensation was before the Court, although in some cases the victim received nothing at all, and in some the victim did receive some compensation of a sort. We conclude that the phrase "without compensation" has constituted obiter dictum in the cases where it has been used, and it is not an element of the offense of false pretense.
Finally, defendant argues that if the compensation paid the victim was adequate in an economic sense (that is, the fair market value) then there could be no intent to defraud. In defendant's view, if he intended to pay the fair market value for the services of Miss Etheridge even if that is less than the amount he represented she would receive, then there was no intent to defraud, and the court's failure to instruct the jury with regard to the adequacy of compensation would then be reversible error.
In both State v. Wallace, 25 N.C.App. 360, 213 S.E.2d 420, cert. denied 287 N.C. 468, 215 S.E.2d 628 (1975), and State v. Banks, 24 N.C.App. 604, 211 S.E.2d 860 (1975), this Court upheld convictions for violations of G.S. 14-100 even though there was some compensation. These two cases, however, did not involve a situation in which the compensation was arguably adequate. It appears that the particular issue raised by the defendant has never been squarely addressed by this Court.
The question most often arises in cases dealing with security for loans. In the typical case, the defendant represents that property is unencumbered when he pledges *787 it as security for a loan. The victim later discovers that the property was in fact encumbered when the defendant secured the loan. The courts frequently then must determine whether the defendant can be convicted without a showing of an actual economic loss.
"It has been held by a majority of courts that have considered the problem that a pecuniary loss by the victim is not an essential element of the crime and that the adequacy of the security offered to obtain a loan or credit, if materially misrepresented, constitutes no defense." Annot., 53 A.L.R. 2d 1215 (1957). See also Nelson v. United States, 97 U.S.App.D.C. 6, 227 F.2d 21 (1955), cert. denied 351 U.S. 910, 76 S. Ct. 700, 100 L. Ed. 1445 (1955); People v. Talbot, 65 Cal. App. 2d 654, 151 P.2d 317 (1944), cert. denied 324 U.S. 845, 65 S. Ct. 677, 89 L. Ed. 1406 (1944). But see Wilson v. State, 84 Ga.App. 703, 67 S.E.2d 164 (1951).
Though the courts of this State have not directly addressed the issue, the Supreme Court did affirm a conviction for obtaining money by false pretenses where the defendant falsely represented that the property pledged as security for a loan was unencumbered when in fact there was a prior lien. The Court did not deem it necessary to investigate the adequacy of the security. State v. Howley, 220 N.C. 113, 16 S.E.2d 705 (1941). Thus, North Carolina appears to align itself with the majority position.
The majority rule, then, is that a showing of actual pecuniary loss by the victim/prosecuting witness is not necessary to sustain a conviction for obtaining property through false pretenses. See, e. g., State v. Meeks, 30 Ariz. 436, 247 P. 1099 (1926); State v. Moss, 194 Ark. 524, 108 S.W.2d 782 (1937); People v. Bartels, 77 Colo. 498, 238 P. 51 (1925); State v. Green, 144 Tex. Crim. 186, 161 S.W.2d 114 (1942); State v. Sargent, 2 Wash.2d 190, 97 P.2d 692 (1940); State v. Anderson, 27 Wyo. 345, 196 P. 1047 (1921). The states which require a showing of actual economic loss are clearly in the minority. See State v. McGee, 97 Ga. 199, 22 S.E. 589 (1895). While North Carolina has not expressly adopted either position, we believe that cases such as Howley, Wallace, and Banks do suggest that North Carolina is more closely aligned with the majority position.
Additionally, sound reasoning supports the majority position. First of all, there is a type of economic harm in cases such as the case now before this Court. Here the victim was to have a job with the State, a position which included the actual cash income, job security, and all the fringe benefits. Instead of the State job, she received compensation for a few days work from the individual who had, representing himself as employed by the State with authority to hire, promised her a State job. One cannot realistically argue that the difference between the representations made and what she actually received did not amount to an economic loss. The real question, therefore, is whether there is the requisite fraudulent intent if there was adequate compensation.
A careful examination of G.S. 14-100 reveals that the essence of the crime is the intentional false pretense not the resulting economic harm to the victim. See State v. Garris, 98 N.C. 733, 4 S.E. 633 (1887). A civil action for damages would be the proper vehicle for remedying any pecuniary loss. The gravamen of the criminal offense, however, is making the false pretense and, thereby, obtaining another person's property or services. The simple purpose of G.S. 14-100 is to prevent persons from using false pretenses to obtain property. The ultimate loss to the victim, therefore, is an issue which is irrelevant to the purpose of the criminal statute and is an issue properly within the province of the civil courts.
Furthermore, when G.S. 14-100 is applied in accordance with the majority rule set out above, it functions in a manner quite like other criminal laws. The criminal law cannot and should not rush to the aid of every citizen who strikes a bad bargain. The criminal law, however, is the proper mechanism to insure that goods and services are freely surrendered and not taken away, irrespective of the economic realities. Thus, *788 theft is punished even if the property stolen is worthless on the open market. Similarly, to protect the interest of the victim in her personal services, the criminal law will intervene because those services were obtained by a false representation even though some compensation was paid.
Therefore, we hold that a defendant can be convicted of obtaining goods by false pretenses in violation of G.S. 14-100 even though some compensation is paid if the compensation actually paid is less than the amount represented. In this case, the amount paid was clearly not what the defendant represented to the victim that she would receive.
We think the Court in State v. Walton, 114 N.C. 783, 787, 18 S.E. 945, 946 (1894), succinctly stated the law:
"The intent to deceive was established to the satisfaction of the jury by the proof of the false representation that the paper presented was a genuine order, when, whatever may have been the motive of the defendant, this representation was, to his own knowledge, false, the commissioners never having made such order. It was calculated to deceive, because it was apparently genuine, and attested by the proper officer. It did deceive, because by means of it the defendant obtained the money. S. v. Phifer, 65 N.C., 321."
Here the intent to deceive was established to the satisfaction of the jury by the proof that the defendant falsely represented that he was a State employee possessing authority to contract with the prosecuting witness for a State job, when, "whatever may have been the motive of the defendant" this representation was false and he knew it to be false. It was calculated to deceive. He presented what appeared to be an authentic letter from a State official. It did deceive, because the prosecuting witness performed services for him without obtaining a State job.
We have carefully reviewed all of the defendant's assignments of error and find no reversible error.
No error.
CLARK and MITCHELL, JJ., concur.