192 S.E.2d 294 (N.C. 1972), 48, State v. Russell

Docket Nº:48.
Citation:192 S.E.2d 294, 282 N.C. 240
Party Name:STATE of North Carolina v. John Henry RUSSELL.
Case Date:November 15, 1972
Court:Supreme Court of North Carolina

Page 294

192 S.E.2d 294 (N.C. 1972)

282 N.C. 240

STATE of North Carolina


John Henry RUSSELL.

No. 48.

Supreme Court of North Carolina.

November 15, 1972

Page 295

Atty. Gen. Robert Morgan and Staff Atty. Donald A. Davis, Raleigh, for the State.

Burke & Donaldson, by George L. Burke, Jr., Salisbury, for defendant appellant.

MOORE, Justice.

In the Court of Appeals defendant admitted that he could find no error in the record of the trial, but requested that the [282 N.C. 242] verdicts and sentence imposed be set aside and a new trial granted.

The record contains no exception or assignment of error; however, defendant's appeal presents the question whether error appears on the face of the record proper. State v. Ford, 281 N.C. 62, 187 S.E.2d 741 (1972); State v. Roberts, 279 N.C. 500, 183 S.E.2d 647 (1971). 'Ordinarily, in criminal cases the record proper consists of (1) the organization of the court, (2) the charge (information, warrant or indictment), (3) the arraignment and plea, (4) the verdict, and (5) the judgment.' State v. Tinsley, 279 N.C. 482, 183 S.E.2d 669 (1971).

The Court of Appeals examined the record proper and found no error. Chief Judge Mallard dissented on the grounds that in an indictment containing several counts each count should be complete within itself, and that the indictments in this case are not sufficient to charge the offense of uttering a particular forged check.

There is substantial and competent evidence in the record indictment that defendant uttered and published the forged checks in question by offering them to the What-a-

Page 296

Burger and to Smith's Produce with knowledge of the falsity of the checks with the intent to defraud, and that he procured by means of these forged checks a total of $56.77 in merchandise and cash. This evidence was ample to support the verdicts and the judgment in this case. The sentence was within the statutory limits set forth in G.S. § 14--120. The only question for decision involves the validity of the second count in each bill of indictment.

One bill of indictment is as follows:

'THE JURORS FOR THE STATE UPON THEIR OATH PRESENT, That John Henry Russell late of the County of Rowan on the 22nd day of September 1971 at and in the County aforesaid, unlawfully and feloniously, of his own head and imagination, did wittingly and falsely make, forge and counterfeit, and did wittingly assent to the falsely making, forging and counterfeiting a certain bank check which said forged bank check is as follows, that is to say:

Daniel Construction Co., Inc. 1396 Duke Construction 66-92 _____ P. O. Box 146 531 Spencer, North Carolina 28159 Date September 22, 1971 Pay to the order of Jerry F. Allen $28.43 The sum of $28 and 43 cts Dollars Wachovia Bank and Trust Company, N.A. Salisbury, North Carolina 28144 C1-1 Daniel Construction Co., Inc. JBR 10-23-71 CNB Ard T. Robertson 36-E-2-90 0531 0092 7 050 082 XXXXXXXXXX XXXXXXXXX Q2 LF FBI Laboratory Endorsed on back as follows: Jerry F. Allen W-A-B

[282 N.C. 243] with intent to defraud, against the form and statute in such case made and provided, and against the peace and dignity of the State.

'AND THE JURORS AFORESAID, UPON THEIR OATH AFORESAID, DO FURTHER PRESENT, That the said John Henry Russell afterward, to wit, on the day and year aforesaid, at and in the County aforesaid, wittingly and unlawfully and feloniously did utter and publish as true a certain false, forged and counterfeited bank check is as follows, that is to say: Same as above--with intent to defraud he, the said John Henry Russell at the time he so uttered and published the said false, forged and counterfeited bank check then and there well knowing the same to be false, forged and counterfeited against the form of the statute in such case made and provided, and against the peace and dignity of the State.'

The other bill of indictment is practically identical except for the amount and number of the check.

The purpose of an indictment 'is (1) to give the defendant notice of the charge against him to the end that he may prepare his defense and to be in a position to plead former acquittal or [282 N.C. 244] former conviction in the event he is again brought...

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