State v. Greene

184 S.E.2d 523 (1971) 12 N.C. App. 687

STATE of North Carolina
v.
Harold Ray GREENE.

No. 7125SC536.

Court of Appeals of North Carolina.

November 17, 1971. Appeal Dismissed January 28, 1972.

Atty. Gen. Robert Morgan, Asst. Atty. Gen. William W. Melvin, and Associate Atty. Gen., Louis W. Payne, Jr., Raleigh, for the State.

Kenneth D. Thomas, Hickory, for defendant appellant.

Appeal Dismissed by Supreme Court January 28, 1972.

HEDRICK, Judge.

By appropriate assignments of error the defendant contends that the evidence of the expert in handwriting analysis was inadmissible because the samples of handwriting were taken from the defendant in violation of his Fifth Amendment privilege against self-incrimination.

Handwriting samples, blood samples, fingerprints, clothing, hair, voice demonstrations, even the body itself, are identifying physical characteristics and are outside the protection of the Fifth Amendment privilege against self-incrimination. State v. Wright, 274 N.C. 84, 161 S.E.2d 581 (1968); State v. Bryant, 5 N.C.App. 21, 167 S.E.2d 841 (1969); State v. Colson, 274 N.C. 295, 163 S.E.2d 376, cert. den. 393 U.S. 1087, 89 S.Ct. 876, 21 L.Ed.2d 780 (1968). These assignments of error are overruled.

Defendant next assigns as error the court's denial of his motion for judgment as of nonsuit on the counts charging him with forging checks. Defendant contends that the State failed to offer any evidence from which the jury could find beyond a reasonable doubt that the checks were made with intent to defraud. Intent to defraud is an essential element of the crime of forgery. G.S. § 14-119; State v. Greenlee, 272 N.C. 651, 159 S.E.2d 22 (1968). "Intent is a mental attitude which seldom can be proved by direct evidence, but must ordinarily be proved by circumstances from which it can be inferred. 2 Strong, N.C.Index 2d, Criminal Law, § 2, p. 481. And in determining the presence or absence of the element of intent the jury may consider the acts and conduct of defendant and the general circumstances existing at the time of the alleged commission of the offense charged. State v. Arnold, 264 N.C. 348, 141 S.E.2d 473." State v. Kendrick, 9 N.C.App. 688, 177 S. E.2d 345 (1970).

In the instant case evidence that 90 checks and a check-writing machine were stolen from Building Specialties Company; that the defendant forged the signature of Alva Gene Hines on the two Building Specialties Company checks; that the stolen check-writing machine was used to write the forged checks; that the checks had the capability of defrauding, and were actually used to defraud, are all circumstances from which the jury could find beyond a reasonable doubt that the defendant forged the checks with intent to injure and defraud Building Specialties Company. State v. Wyatt, 9 N.C.App. 420, 176 S.E.2d 386 (1970). This assignment of error is overruled.

Finally, defendant contends that the trial court committed error in charging the jury on the element of fraudulent intent. This contention is without merit. We think the charge, when read as a whole, is correct and free from prejudicial error.

No error.

MALLARD, C. J., and GRAHAM, J., concur.