State v. Hadlock

237 S.E.2d 748 (1977)

STATE of North Carolina v. Kent HADLOCK.

No. 7729SC193.

Court of Appeals of North Carolina.

October 5, 1977.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Elizabeth C. Bunting, Raleigh, for the State.

Roberts, Cogburn & Williams, Max O. Cogburn, Asheville, for defendant-appellant.

PARKER, Judge.

Defendant was found guilty of violating G.S. 14-100. The indictment charged that the offense occurred on or about 3 February 1976. Effective 1 October 1975 G.S. 14-100 was rewritten to provide that "[i]f any person shall knowingly and designedly by means of any kind of false pretense whatsoever, whether the false pretense is of a past or subsisting fact or of a future fulfillment or event, obtain or attempt to obtain from any person within this State any money, goods, property, services, chose in action, or other thing of value with intent to cheat or defraud any person of *749 such money, goods, property, services, chose in action or other thing of value, such person shall be guilty of a felony ...." (Emphasis added.) An essential element of the offense proscribed by the statute is that the accused "obtain or attempt to obtain" something of value by means of any kind of false pretense. The indictment in the present case failed to allege that defendant obtained or attempted to obtain anything. The allegation that "[b]ased upon representation that the land was clear, Hubert G. Bryson conveyed property valued at $35,000.00 known as Mill Hill Grocery described in Book 198 Page 685" falls short of alleging that defendant obtained or attempted to obtain anything.

For failure of the indictment to charge an essential element of the offense, this Court on its own motion will arrest the judgment. State v. Fowler, 266 N.C. 528, 146 S.E.2d 418 (1966); State v. Lucas, 244 N.C. 53, 92 S.E.2d 401 (1956); State v. Thorne, 238 N.C. 392, 78 S.E.2d 140 (1953); 4 Strong's N.C. Index 3rd, Criminal Law § 127.2. The legal effect of arrest of judgment is to vacate the verdict and judgment entered in the Superior Court in this case. State v. Covington, 267 N.C. 292, 148 S.E.2d 138 (1966); State v. Fowler, supra.

Judgment arrested.

MORRIS and CLARK, JJ., concur.