State v. Russell, 48
| Decision Date | 15 November 1972 |
| Docket Number | No. 48,48 |
| Citation | 282 N.C. 240,192 S.E.2d 294 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. John Henry RUSSELL. |
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.
In the Court of Appeals defendant admitted that he could find no error in the record of the trial, but requested that the 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- 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.C. 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 0000002843
711108058 Q2 LF FBI Laboratory
Endorsed on back as follows: Jerry F. Allen
W - A - B
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 former conviction in the event he is again brought to trial for the same offense; (2) to enable the court to know what judgment to pronounce in case of conviction.' State v. Burton, 243 N.C. 277, 90 S.E.2d 390 (1955); State v. Greer, 238 N.C. 325, 77 S.E.2d 917 (1953); State v. Dorsett and State v. Yow, 272 N.C. 227, 158 S.E.2d 15 (1967).
G.S. § 15--153 was enacted many years ago to simplify forms of indictment. (Chapter VI, 1811 Laws of North Carolina.) This statute provides that every criminal indictment is sufficient in form for all intents and purposes if it expresses the charge in a plain, intelligible, and explicit manner, and that an indictment shall not be quashed by reason of any informality or refinement if in the bill sufficient matters appear to enable the court to proceed to judgment.
In State v. Whitley, 208 N.C. 661, 182 S.E. 338 (1935), the defendant was convicted on the first count in a bill of indictment charging larceny and on the second count of receiving stolen goods knowing them to have been stolen. Chief Justice Stacy stated:
'The next position taken by the defendants is, that the second count in the bill of indictment is fatally defective, in that the names of the defendants are not repeated in charging the Scienter. State v. McCollum, 181 N.C. 584, 107 S.E. 309; State v. May, 132 N.C. 1020, 43 S.E. 819; State v. Phelps, 65 N.C. 450. This is a refinement which the act of 1811, now C.S. 4623 (now G.S. 15--153), sought to remedy. State v. Parker, 81 N.C. 531. It provides against quashal for informality if the charge be plain, intelligible, and explicit, and sufficient matter appear in the bill to enable the court to proceed to judgment. State v. Beal, 199 N.C. 278, 154 S.E. 604. The exception is too attentuate. State v. Lemons, 182 N.C. 828, 109 S.E. 27; State v. Francis, 157 N.C. 612, 72 S.E. 1041.
'Speaking to the subject in State v. Shade, 115 N.C. 757, 20 S.E. 537, Avery, J., delivering the opinion of the court, said: 'The trend of judicial decision, and the tendency of legislation, is towards the practical view, that objections founded upon mere matter of form should not be considered by the courts unless there is reason to believe that a defendant has been misled by the form of the charge, or was not apprised by its terms of the nature of the offense which he was held to answer. Where the defendant thinks that an indictment . . . fails to impart information sufficiently specific as to the nature of the charge, he may before trial, move the court to order that a bill of particulars be filed; and the court will not arrest the judgment after verdict, where he attempts to reserve his fire until he takes first the chance of acquittal. State v. Brady, 107 N.C. (822) 826, 12 S.E. 325."
G.S. § 15--153 has received a very liberal construction, State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897 (1970); State v. Carpenter, 173 N.C. 767, 92 S.E. 373 (1917), and the quashing of indictments is not favored, State v. Abernathy, 265 N.C. 724, 145 S.E.2d 2 (1965); State v. Flowers, 109 N.C. 841, 13 S.E. 718 (1891). However, this does not mean that an indictment may withstand such motion when an indispensable allegation of the charge is omitted. State v. McBane, 276 N.C. 60, 170 S.E.2d 913 (1969); State v. Scott, 241 N.C. 178, 84 S.E.2d 654 (1954).
In the present case, is the reference in the second count to the first count, wherein the check was fully described, sufficient to incorporate by reference essential information necessary to sustain the second count?
This exact question apparently has not been decided by this Court. However, in State v. McKoy, 265 N.C. 380, 144 S.E.2d 46 (1965), it is said:
(Emphasis ours.)
By implication this would seem to indicate that had there been a reference in the second count to the first count, the decision might have been otherwise.
In the absence of definitive authority in this jurisdiction, it is helpful to look to decisions in other jurisdictions. Durden v. State, 29 Ga.App. 548, 116 S.E. 41 (1923), involved an indictment which contained counts of forgery and uttering a forged check. The first count charging forgery described the check in detail. The second count charging uttering a forged check stated in pertinent part:
". . . did then and there unlawfully, falsely and fraudulently utter and publish as true the Above-described false and fraudulent, forged and altered paper. . . ."
The Court specifically approved the incorporation by reference in the second count.
In Lee v. State, 81 Ga.App. 829, 60 S.E.2d 177 (1950), the Court said:
'. . . It is also fundamental that where an indictment is in more than one count, each count must be complete within itself and plainly, fully and distinctly set out the crime alleged, although express reference from one count to another is allowable. . . .'
Accord, Pope v. State, 42 Ga.App. 680, 157 S.E. 211 (1931).
Cases from other jurisdictions not only approve the practice of incorporation by reference between counts in an indictment but indicate...
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State v. Rankin, 23A18
...(2017) ). But an indictment will be quashed "when an indispensable allegation of the charge is omitted." State v. Russell , 282 N.C. 240, 245, 192 S.E.2d 294, 297 (1972) (citations omitted). For example, in State v. Murrell the defendant challenged an indictment charging him with robbery wi......
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...v. Greer, 238 N.C. 325, 77 S.E.2d 917 (1953); State v. Dorsett and State v. Yow, 272 N.C. 227, 158 S.E.2d 15 (1967)." State v. Russell, 282 N.C. 240, 192 S.E.2d 294 (1972). Since the defendants Squire and Brown could not have been lawfully convicted, upon the present indictments, of the cri......
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...forgery. These bills of indictment set out in exact words and figures the checks alleged to have been forged. In State v. Russell, 282 N.C. 240, 192 S.E.2d 294 (1972), we approved an indictment for forgery couched in the same language. There we said: 'The purpose of an indictment 'is (1) to......
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