State v. Prince , 49 N.C. App. 145 ( 1980 )

270 S.E.2d 521 (1980)

STATE of North Carolina
v.
Bobby Wade PRINCE.

No. 8010SC276.

Court of Appeals of North Carolina.

October 7, 1980.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Kaye R. Webb, Raleigh, for the State.

Brenton D. Adams, Raleigh, for defendant-appellant.

WEBB, Judge.

The defendant's first assignment of error pertains to the charge. The court correctly charged the jury as to what the State had to prove in order for the jury to find the defendant guilty of forgery. Then in the final mandate it charged as follows:

"So I charge if you find from the evidence beyond a reasonable doubt that on or about the 25th day of April, 1979, the defendant, Bobby Wayne Prince, intending to defraud and intending to suggest that the checks identified by State's Exhibit 1 and 2 were genuine, it would be your duty to return a verdict of guilty as charged."

Two essential elements of forgery are the false making of an instrument and the appearance of the instrument as genuine. See State v. McAllister, 287 N.C. 178, 214 S.E.2d 75 (1975). Both these elements were omitted from the mandate. Although the court correctly charged the jury at one point as to the elements of forgery, we hold that the error in the final mandate requires that the convictions for forgery be reversed. See State v. Dooley, 285 N.C. 158, 203 S.E.2d 815 (1974) for a case which holds that a reversal is required if there is error in the final mandate even if proper instructions are given at another place in the charge.

Defendant also assigns as error the court's allowing the jury during its deliberations to take into the jury room, without the consent of the defendant, the checks which had been introduced into evidence. G.S. 15A-1233(b) provides:

Upon request by the jury and with consent of all parties, the judge may in his discretion permit the jury to take to the jury room exhibits and writings which have been received in evidence.

It was error for the court to allow the checks to be taken into the jury room without the consent of the defendant. However, we hold that the defendant has not demonstrated the error was prejudicial. See State v. Jolly, 297 N.C. 121, 254 S.E.2d 1 (1979). After a review of the record, we cannot hold that "there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached" as required by G.S. 15A-1443(a) in order to reverse.

The defendant next contends it was error not to dismiss one of the indictments for forgery and uttering because the indictment charged the crimes were committed on 25 April 1979 and the State could not prove the exact date of the forgery and uttering. Fred Weston Ray, Jr. testified: "I do not know the exact date that I received the check.... It had to be around the time the check was wrote." Time is not of the essence in the crimes of forgery and uttering a forged check. State v. Raynor, 19 N.C.App. 191, 198 S.E.2d 198 (1973). The defendant has not demonstrated any prejudice to him by the witness's not being able to remember the exact day on which he received the check. Defendant relies on State v. White, 3 N.C.App. 31, 164 S.E.2d 36 (1968). In that case the defendant was tried on a warrant which charged him with committing a traffic offense in June. The evidence showed that any offense that may have been committed occurred in November. We believe the case sub judice is clearly distinguishable. This assignment of error is overruled.

The defendant's fourth assignment of error is to the court's failure to quash the bill of indictments for forgery. The indictments alleged the defendant forged the checks. Defendant contends they should have averred he was alleged to have forged the checks. This assignment of error is overruled. See State v. McAllister, supra.

The defendant's last assignment of error is to the overruling of his motion to dismiss both forgery charges. He contends there is no eyewitness testimony that the defendant wrote the checks and no expert testimony that it was his handwriting on the checks. There was evidence that the checks had been forged. There was also evidence that the defendant cashed the two checks. We hold this was circumstantial evidence sufficient for the jury to find that the defendant forged the checks.

Defendant was sentenced to from five to eight years on one charge of forgery consolidated for judgment with a charge of uttering a forged instrument. He was sentenced to from eight to ten years on the other charge of forgery consolidated for judgment with a charge of uttering a forged check. The second sentence is to commence at the expiration of the first. For reasons stated in this opinion, we reverse the convictions of forgery and hold there was no error in the convictions of uttering forged checks. G.S. 15A-1447(e) provides:

If the appellate court affirms one or more of the charges, but not all of them, and makes a finding that the sentence is sustained by the charge or charges which are affirmed and is appropriate, the court may affirm the sentence.

The sentences for the charges of uttering the forged checks are sustained by the charges. See G.S. 14-120. On this record we cannot find the sentences were appropriate. See State v. Boone, 297 N.C. 652, 256 S.E.2d 683 (1979). For this reason, we remand the cases involving the charges for uttering forged instruments to the superior court for resentencing.

In both cases of forgery, new trial.

In both cases of uttering a forged check, remanded for resentencing.

VAUGHN and ROBERT M. MARTIN, JJ., concur.