State v. Moffitt

177 S.E.2d 324 (1970) 9 N.C. App. 694

STATE of North Carolina
v.
Claude Franklin MOFFITT.

No. 7026SC543.

Court of Appeals of North Carolina.

November 18, 1970.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. Roy A. Giles, Jr., for the State.

William D. McNaull, Jr., Charlotte, for defendant appellant.

BRITT, Judge.

Defendant's first assignment of error relates to the refusal of the trial judge to quash the bill of indictment on which defendant was tried, it being returned at the 11 May 1970 session of the court. Defendant contends that another bill charging the same offenses was returned against him at the 5 January 1970 session and that no disposition had been made of the former bill. The assignment of error is without merit. In State v. Hastings, 86 N.C. 596 (1882), defendant was tried on a third bill of indictment charging the same offense, and the Supreme Court in upholding the trial judge's refusal to quash the third bill said:

"The motion was properly denied, for the former bills in connection with the facts stated constitute no legal impediment to the putting the defendant on trial upon the last and more perfect bill, at the election of the Solicitor. This is the recognized practice, and is convenient and necessary in the administration of the criminal law for the removal of all grounds of exception to the form of the bills previously sent, or for any irregularity in the manner of acting upon them. State v. Dixon, 78 N.C. 558."

Furthermore, it appears that the former bill returned in the case at bar was fatally defective in that it failed to aver the words alleged to have been forged by defendant. State v. Coleman, 253 N.C. 799, 117 S.E.2d 742 (1960); State v. Cross, 5 N.C.App. 217, 167 S.E.2d 868 (1969). Our Supreme Court has held that where an indictment is of doubtful validity, it is proper to send a second bill. State v. Lee, 114 N.C. 844, 19 S.E.2d 375 (1884). The assignment of error is overruled.

Defendant assigns as error the allowing of testimony as to whose possession the check writing machine was in and admitting into evidence the instrument alleged to have been forged and the check writing machine. We hold that the court did not err in admitting this evidence and the assignments of error relating thereto are overruled.

Defendant assigns as error certain portions of the trial court's charge to the jury. We have carefully considered the charge, with particular reference to the challenged instructions, and find that it was free from prejudicial error. The assignments of error relating thereto are overruled.

Finally, defendant assigns as error the failure of the trial court to grant his motions for nonsuit. A review of the testimony impels the conclusion that the evidence was ample to survive the motions for nonsuit and the assignment of error relating thereto is overruled.

The defendant had a fair trial free from prejudicial error.

No error.

CAMPBELL and VAUGHN, JJ., concur.