State v. Phillips

124 S.E.2d 146 (1962) 256 N.C. 445

STATE
v.
Charles D. PHILLIPS.

No. 74.

Supreme Court of North Carolina.

February 28, 1962.

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

S. Thomas Walton, Asheville, for defendant.

MOORE, Justice.

The court erred in denying defendant's motion for nonsuit.

Three elements are necessary to constitute the offense of forgery: (1) There must be a false making or 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. State v. Dixon, 185 N.C. 727, 117 S.E. 170.

The State's evidence is sufficient to justify the inference that defendant aided and abetted Jarrett in the execution of the purported check. The check is sufficient in form to constitute a negotiable instrument payable "to order." G.S. § 25-14. But the State offered no evidence tending to show the falsity of the instrument, i. e., that it was executed without authority.

If the name signed to a negotiable instrument, or other instrument requiring a signature, is fictitious, of necessity, the name must have been affixed by one without authority, and if a person signs a fictitious name to such instrument with the purpose and intent to defraud—the instrument being sufficient in form to import legal liability— an indictable forgery is committed. However, if the purported maker is a real person and actually exists, the State is required to show not only that the signature in question is not genuine, but was made by defendant without authority. "To show that the defendant signed the name of some other person to an instrument, and that he passed such instrument as genuine, is not sufficient to establish the commission of a crime. It must still be shown that it was a false instrument, and this is not established until it is shown that a person who signed another's name did so without authority." State v. Dixon, supra.

"Evidence that the name signed to an instrument is that of a fictitious person is admissible to prove that the instrument is a forgery, and any circumstantial evidence tending to prove that the name is that of a fictitious person is likewise admissible. Thus persons so situated that they would probably know the signer if he existed may testify that they do not know of any such person. Similarly, evidence as to the result of inquiries made for persons whose names appear on an instrument is admissible to show their nonexistence, although the person making the inquiries may have been unacquainted with the place, or the search may not have been extensive. Likewise evidence is admissible as to the result of an inspection of the assessment rolls of the town where such persons were alleged to live. In the case of a check it may be shown that the drawer had no account with the bank on which it was drawn, or was not a customer thereof; * * *." 37 C.J.S. Forgery § 82, p. 94. "* * * (T)he testimony of a proper officer of the bank on which a check was drawn that the purported maker of such check had no account in the bank is admissible as tending to prove that such purported maker was a fictitious person." 49 A.L.R.2d, Anno.: Forgery— Fictitious name, s. 5(a), p. 879. And it has been held that such testimony is prima facie evidence of the nonexistence of the maker, ibid, s. 5(b), p. 880.

Where defendant signs the name of another person to an instrument, there is no presumption of want of authority. On the contrary, "Where it appears that accused signed the name of another to an instrument, it is presumed that he did so with authority." 37 C.J.S. Forgery § 80b, p. 91. Of course, it is not a presumption of law. For an example of facts sufficient to make out a prima facie case of want of authority, see State v. Coleman, 253 N.C. 799, 117 S.E.2d 742.

In the instant case the State offered no evidence tending to show that Frank Johnson, the purported maker of the check in question, is a fictitious person. There is no testimony from an officer or employee of the First National Bank and Trust Company of Asheville, the bank on which the check is drawn, that Frank Johnson is unknown to and has no account in that bank. There is merely the testimony of Mr. Buckner that no money was received "for that check." It may well be that the account of Frank Johnson, if any, had insufficient funds on deposit for payment of the check, or that Johnson had stopped payment. There was no testimony from any of the State's witnesses that they had made any effort to locate Johnson or had made inquiries concerning his whereabouts or existence. Defendant told the deputy sheriff he had purchased his car from Frank Johnson. This tends to show that Johnson is a real person. Yet, apparently no effort was made to locate him. It is certain he was not called as a witness to testify that he had not authorized the making of the check.

The State makes no showing that the signing of the check was unauthorized and false. The court should have allowed the motion to nonsuit.

The judgment below is

Reversed.

WINBORNE, C. J., not sitting.