#### STATE v. CICERO KNOTT.

(Decided April 18, 1899).

False Pretence — The Code, Section 1026.

Evidence of obtaining mone)' upon a false promise to be performed in the future, but which does not show a false representation of a subsisting fact, will not support an indictment under The Code, section 1035, for obtaining money under a false pretence.

*815INDICTMENT for obtaining money under a false pretence, tried before Mclver, Jat November Term, 1898, of Foe-syth Superior Court.

Tbe defendant excepted to tbe sufficiency of tbe evidence to support tbe charge, and lipón conviction moved for a new trial. Motion refused and defendant appealed from the judgment. The evidence is stated in the opinion.

Messrs. Moore & Sapp, for appellant.

Mr. Zeb. V. Walsei•, Attorney General, and Brown Shep herd, for the State.

Fatjroíloth, O. J.

The defendant is indicated for obtaining money under a false pretence. Code, Section 1025. The Stale’s witness testified that “lie went to' the defendant, Knott, and told him he understood he was an agent for one Franklin, who would furnish good and lawful money to any one at the rate of $10 for each $1 invested and that he after-wards on the samo day made a bargain with defendant, Knott, that, upon the payment of $21.50, the said Knott was to procure for him from said Franklin the sum of $150; that defendant, Knott, told him he had furnished money at these rates for Ogburn, Hill & Co.,” and others; further that said money had not been received by him.

Does this evidence constitute an indictable offence under our Code ? It does not. It shows a promise to be performed in the future, but does not show a false representation of a’ subsisting fact. This question ivas fully explained In State v. Phifer, 65 N. C., 325, which has been followed as a leading case. There, it was held that “There must be a false representation of a subsisting fact, calculated to deceive and which does deceive,” but it does not extend to mere tricks of trade. It makes no difference whether the, prosecutor was a prudent *816or imprudent man, or one easily imposed upon; for, if be was deceived, it was done by a promise and not by a false representation of an existing fact.

New trial.