#### STATE v. C. J. MARSH.

(Filed 2 April, 1913.)

1. Railroads — Principal and Agent — False Pretense — Indictment Sufficient — Evidence—Interpretation of Statutes.

Where a railroad agent is charged with obtaining money under false pretense by falsely representing to his company that it was necessary for him to employ a hand at his station at $25 per month, and who, in order to get the money, signed the company’s check in the name of the supposed hand, sending it on to the bank for collection and taking the money from his cash receipts, proof of these allegations is sufficient to sustain the charge in the indictment and convict of the offense, under Revisal, sec. 3432, for the charge is sufficiently stated if it is expressed in a plain, intelligible, and explicit manner, and sufficient matter appear to enable the court to proceed to judgment. Revisal, sec. 3254.

2, Principal and Agent — False Pretense — Extra Work — Evidence— Ability to Repay — Felonious Intent.

Where an. agent falsely represents to his principal that he had employed another in his service at a certain price, and obtains money on a check sent for his payment, it is no defense *604that the agent did the required work himself, after hours, and took the money in compensation for his own services; nor is evidence of the value of this extra work or of the agent’s ability to repay, competent.

Appeal by defendant from Peebles, J., at July Term, 1912, Of UNION.

Attorney-General Biclcett and Assistant Attorney-General Calvert, John D. Shaw, and Murray Allen for the State.

Osborne, Coche & Robinson, Williams, Love & McNeeley, Lemmond & Yarm, J. J. Parlcer, J. C. Broolcs, for defendant.

Clare, C. J.

Tbe defendant was convicted of obtaining money under false pretenses. He was railroad station agent at Marsbville, N. C. In October, 19 07, be wrote to tbe superintendent of tbe railroad company, asking for additional belp and in November, 1907, tbe superintendent replied,- autborizing bim to put in a station band at $25 per month. Tbe defendant as station agent sent in a report for tbe month of July, 1908, of tbe persons employed at that station which showed that George Thomas, station band, bad been employed for that month, and that $25 was due bim by tbe railroad. On 5 August tbe railroad company sent defendant its check, payable to tbe order of George Thomas, for $25 in full for services rendered as porter during tbe month of July, 1908. This check tbe defendant returned to tbe railroad company, ’indorsed by “George Thomas, bis mark, J. C. Marsh, witness,” and further indorsed, “Indorsement guaranteed. J. C. Marsh, agent A. C. L. R. R.” Across tbe face of tbe check is perforated tbe word “Paid.”

Tbe testimony of tbe officers and tbe employees of tbe railroad is that they relied on tbe report of tbe defendant, as agent at Marsbville station, that Thomas bad been employed there as a laborer for tbe month of July, and on tbe genuineness of tbe indorsement of tbe check as guaranteed by tbe defendant. ’It was further in evidence, and was also admitted by tbe defendant, that George Thomas was not regularly employed as a laborer at Marsbville station during July, 1908, and that no station band was regularly employed there at that time.

*605George Thomas testified that he was not a station hand at Marshville in July, 1908, nor at any other time; that he did not make his mark on the check and did not authorize the defendant to do so, nor to witness it. He further testified that the defendant never g-ave him a check to pay for his services; that sometimes he carted for Marsh a day at a time, cannot say exactly how many days in a month, but not many; that his work during a month amounted probably to two or three dollars; that he did not miload freight and never swept out the depot or carried mail. The defendant testified that he did not deliver the check to Thomas; that Thomas did not sign the check nor put his mark there. He admitted that he had sent in a report that Thomas had earned $25 for the month of July. From h'is testimony his excuse seems to be that he and one Davis, the telegraph operator, did spme extra work for the company, and he took the pay which he had falsely reported that Thomas was earning and divided it between them. This, if true, is no defense.

Revisal, 3432, eliminating duplicating words and stating the kind of false pretense charged in this case, provides: “If any person shall knowingly, designedly, by . . . any false pretense whatever obtain from any person or corporation . . . any money, property, or check . . . with intent to cheat and defraud any person ... he shall be guilty of á felony.” The evidence fully sustained a conviction of this offense.

The defendant took 49 exceptions, which in his brief counsel reduces to 10 points, by grouping exceptions which embrace the same propositions and by omitting others. The defendant’s first proposition is that the obtaining of. the check by virtue of false pretenses was not embraced in the allegations of the bill. The allegations of the bill are that the defendant, being station agent for the railroad company and authorized by them to employ a laborer at his station, ‘ feloniously, wickedly, etc., intending to cheat and defraud, did falsely pretend to said railroad company that George Thomas was employed as a laborer at Marshville station by him under the authority of the railroad company, and that Thomas had labored at Marshville station *606during the month of July, 1908, and that there was due said George Thomas for said month of July for his services $25, and that the defendant had paid the said George Thomas $25, and that the check issued by the railroad company, payable to said Thomas for the month of July, 1908, had been indorsed by George Thomas, an'd that the defendant had witnessed the in-dorsement by him of the said check, which pretenses were false, calculated and intended to deceive the said railroad company, and did deceive them; that in truth Thomas was not employed as a laborer at that station during the month of July; that there was not due him the sum of $25 for services rendered; that defendant did not pay him the $25; that the check had not been indorsed by Thomas; that Marsh had not witnessed it, and by color and means of said false pretense the defendant received money, property, and credit in the sum of $25 by collecting the said chéck, which he appropriated to his own use, with the intent to cheat and defraud the said railroad company. This in substance is the charge in the bill of indictment, rejecting surplusage and formal expressions. The check was property. Its proceeds were money. If defendant had money of the railroad in his hands, the retention of $25 to pay to himself was obtaining credit or “a thing of value.” The allegations of the bill sufficiently and fully charged “false pretense.”

Revisal, 3254, provides: “Every criminal proceeding, by warrant, indictment, information, or impeachment, shall be sufficient in form, for all intents and purposes, if it express the charge against the defendant in a plain, intelligible, and explicit manner; and the same shall not be quashed, nor the judgment thereon stayed, by reason of any informality or refinement, if in the bill of proceeding sufficient matter appear to enable the court to proceed to judgment.” This indictment, however, is not informal, but is well drawn under Revisal, 3432. It may be that, taking certain portions of the evidence- and omitting other portions, that the evidence would sustain an indictment for embezzlement. But that is immaterial to be considered. False pretense is sufficiently charged, and the evidence fully supported the verdict of the jury. Indeed, if the facts proven. *607bad shown tbat tbe defendant was also guilty of larceny, Re-visal, 3432, provides tbat tbe defendant shall not on tbat account be acquitted. Wbetber tbe facts charged and proven constitute larceny, false pretense, or embezzlement, tbe punishment is tbe same. Tbe only material question is, Did tbe defendant commit tbe acts charged, and if so, was it a violation of law, and is tbe sentence within tbe punishment prescribed for such violation?

The chief clerk in tbe pay department of tbe railroad company testified tbat be paid this check in cash 21 August; tbat defendant bad placed tbe check in bank at Wilmington to bis individual credit, and, in corroboration, produced tbe check with tbe indorsement of tbe bank. Tbe defendant testified be sent tbe check to tbe bank for credit of tbe railroad company, and retained in lieu thereof $25 of cash be bad collected for 'freight. Tbe difference is immaterial. In either event there was tbe same false pretense by which be obtained $25 of tbe railroad’s money, wbetber tbe check was cashed by tbe pay clerk, by tbe bank, or by tbe defendant out of tbe funds of tbe railroad company in bis bands.

We cannot sustain tbe defendant’s contention tbat be “did not obtain anything whatever” by bis false pretense. Nor bis proposition tbat tbe failure of tbe defendant to keep bis manner of dealing bidden from tbe railroad company tended strongly to prove the absence of any felonious intent. Tbe evidence is tbat tbe officials of tbe company were not aware of tbe facts, except the detective, and when or bow be' obtained information does not appear. There is no evidence tbat be condoned tbe offense or was authorized to do so. It may well be tbat tbe detective procured bis information when be unearthed and exposed tbe fraud.

Tbe question of intent was- correctly submitted to tbe jury. Tbe question of tbe defendant’s solvency could not be pertinent upon tbe facts as charged in this case. Nor did tbe judge err in excluding evidence of tbe value of tbe amount of extra work done by tbe defendant, if any. Tbe false pretense consisted in tbe false representations tbat George Thomas bad been em*608ployed, that he had rendered one month’s full service for which there was due. him the sum of $25, and obtaining thereupon the check of the company in favor of Thomas, whose mark, was falsely asserted to have been made by him on the back of the check, and the collection by this means, for the use of the defendant, of said $25.

We have examined very fully the indictment, the evidence, the admissions of the defendant, and the charge of the court and the exceptions. We find

No error.