State v. Welch , 266 N.C. 291 ( 1966 )

145 S.E.2d 902 (1966) 266 N.C. 291

STATE
v.
Jimmie WELCH.

No. 269.

Supreme Court of North Carolina.

January 14, 1966.

Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Harry W. McGalliard, for the State.

W. Herbert Brown, Jr., Charlotte, for defendant.

DENNY, Chief Justice.

The defendant assigns as error the State's testimony with respect to checks Nos. 560 and 578, which were not the subject of any of the indictments involved in the trial. Over the objection of the defendant, the testimony was admitted on the assurance of the solicitor that such evidence would be connected with the indictments. The jury was instructed that the evidence was admitted only on such condition. No such evidence was offered, and the court instructed the jury to disregard the evidence as to these extra checks. When the court charged the jury, the jury was again instructed to disregard the evidence with respect to such checks.

Checks Nos. 560 and 578 were two of the printed checks of the A B C Auto Parts and Body Shop that had been stolen from the office of such establishment. The only evidence elicited from the witness W. C. Newland was whether or not the name W. C. Newland, appearing on these respective checks as the purported maker thereof, was his signature, and he testified that it was not. These checks were not admitted in evidence, and no evidence was admitted disclosing to whom such checks were made payable or whether or not the checks had been endorsed and negotiated.

It is a little difficult to understand why the solicitor felt it necessary to introduce evidence with respect to these two checks. However, in our opinion, under the facts and circumstances disclosed by the record on this appeal, this evidence was not sufficiently prejudicial to warrant a new trial and we so hold. This assignment of error is overruled.

The defendant assigns as error the ruling of the court below in denying his motion for judgment as of nonsuit at the close of the State's evidence. Defendant rested at the close of the State's evidence and renewed his motion for judgment as of nonsuit which was again denied.

The appellant contends that the State's evidence is insufficient to withstand his motion for judgment as of nonsuit in that the State did not show Edwin Calvert Baucom, the purported payee, had not authorized him to endorse these checks. This contention is without merit. The defendant is charged in the bills of indictment with the forgery of these checks and with uttering them. When the State offered evidence to the effect that W. C. Newland never signed any of these checks and never authorized the defendant or any other person to do so, and further offered evidence to the effect that the defendant forged, endorsed and passed these checks and received the face value of $84.62 on each check, the State's evidence was sufficient to carry the case to the jury.

The State's evidence also tended to show the essential elements required to establish forgery as laid down in State v. Phillips, 256 N.C. 445, 124 S.E.2d 146, and State v. Dixon, 185 N.C. 727, 117 S.E. 170, as follows: "(1) There must be a false making or other alteration of some instrument in writing; (2) there must be a fraudulent intent; and (3) the instrument must be apparently capable of effecting a fraud."

In the cases of State v. Peterson, 129 N.C. 556, 40 S.E. 9, 85 Am. St. Rep. 756, and State v. Jestes, 185 N.C. 735, 117 S.E. 385, this Court upheld a charge to the effect that "(w)hen one is found in the possession of a forged instrument and is endeavoring to obtain money or advances upon it, this raises a presumption that defendant either forged or consented to the forging such instrument, and nothing else appearing the person would be presumed to be guilty." 164 A.L.R. Anno.—Possession or Uttering of Forged Paper, page 625.

The remaining assignments of error are without sufficient merit to justify disturbing the verdict below, and they are overruled.

No error.