State v. Gibson

HEDRICK, Judge.

Since prayer for judgment was continued on the count charging forgery in case number 71 Cr 22996 and on the counts charging forgery and uttering in case number 71 Cr 22997, our consideration is limited in this opinion to the count charging uttering in case number 71 Cr 22996.

The defendant first contends the court erred in not allowing his motion to discharge his court-appointed counsel and in not affording him an opportunity to employ “private counsel” or represent himself.

When this case was called for trial at the 29 November 1971 Session of Criminal Court, the defendant, an indigent, appeared for trial with his court-appointed counsel, Frank B. Aycock, III, and moved “ ... to have his Court appointed counsel discharged and another attorney appointed for him, or be given the opportunity to hire a lawyer.” When the judge inquired of the defendant the reasons for his motion, the defendant stated, “I just figure that I can get another lawyer to do more for me than this one right here.” There was no showing that defendant was financially able to employ counsel.

It is well settled that an indigent defendant must accept counsel appointed by the court, unless he desires to present his own defense. State v. Scott, 8 N.C. App. 281, 174 S.E. 2d 80 (1970); State v. Moore, 6 N.C. App. 596, 170 S.E. 2d 568 (1969); State v. Alston, 272 N.C. 278, 158 S.E. 2d 52 (1967); State v. McNeil, 263 N.C. 260, 139 S.E. 2d 667 (1965).

An expression of an unfounded dissatisfaction with his court-apppointed counsel does not entitle defendant to the services of another court-appointed attorney. State v. Moore, supra. In State v. McNeil, supra, we find the following:

“In 157 A.L.R. 1225 et seq., there is an annotation entitled ‘Right of defendant in criminal case to discharge of, or substitution of other counsel for, attorney appointed by court to represent him.’ Therein it is said:

‘The right to such discharge or substitution is to this extent relative, and the authorities seem united in the view that if there is fair representation by competent assigned counsel, proceeding according to his best judgment and the usually accepted canons of criminal trial practice, no right of the defendant is violated by refusal to accede to his personal desire in the matter.’ ”

In the record before us there is nothing to indicate that the defendant ever expressed any desire not to be represented or to represent himself, nor is there anything to indicate that Mr. Aycock, appointed in April 1971, had failed to provide him with fair and proper representation. The bare assertion in the record, first made when the case was called for trial, that the defendant wished to discharge his court-appointed counsel and to have another appointed for him or be given an opportunity to hire one because he thought another would do more for him is not sufficient to show that any of the defendant’s rights were violated or that the court committed prejudicial error in denying the motion. This assignment of error is not sustained.

The defendant assigns as error the court’s denial of his timely motions for judgment as of nonsuit. The offense of uttering a forged instrument consists in offering to another the forged instrument with knowledge of the falsity of the writing and with intent to defraud. G.S. 14-120; State v. Greenlee, 272 N.C. 651, 159 S.E. 2d 22 (1968).

We think the evidence in the present case, when considered in the light most favorable to the State as we are bound to do, would permit the jury to find that when State’s exhibit #1, the check dated 26 March 1971, No. 1209, was issued and given to the defendant, it was made payable to the defendant in the amount of $1.64 and that the defendant altered the check and made it appear to be payable in the amount of $11.64 and that, as altered, the check was capable of defrauding and that the defendant with fraudulent intent did, in fact, utter and publish the altered check by having it cashed by Mr. Williams at the Eighth Street Market. We hold the evidence was sufficient to require the submission of the case to the jury and to support the verdict.

Based on exception number 4, the defendant contends the court expressed an opinion on the evidence in violation of G.S. 1-180. This exception reveals that when the solicitor asked Mr. Williams if he remembered how much he cashed the check for, the trial judge said, “Well, the check speaks for itself.”

In his brief, defendant states:

“ . . . (H)is comment necessarily conveyed an opinion to the jury and established the fact that the check (State’s Exhibit No. 1) bore the alleged alteration of $11.64 at the time it was presented to the cashier by the defendant.”

We think the comment by the judge was error but not prejudicial. In State v. Perry, 231 N.C. 467, 57 S.E. 2d 774 (1950) we find:

“* * * The comment made or the question propounded should be considered in the light of all the facts and attendant circumstances disclosed by the record, and unless it is apparent that such infraction of the rules might reasonably have had a prejudicial effect on the result of the trial, the error will be considered harmless.”

There is nothing in this record to indicate that the comment of the judge could have prejudiced the defendant in any way. We hold the remark made by the judge was harmless beyond a reasonable doubt.

We hold the defendant had a fair trial free from prejudicial error.

No error.

Judges Britt and Parker concur.