State v. Dixon

• Decision Date: 25 April 1923
• Docket Number: 379.
• Citation: 117 S.E. 170,185 N.C. 727
• Parties: STATE v. DIXON.
• Court: North Carolina Supreme Court

117 S.E. 170

185 N.C. 727

STATE v. DIXON.

No. 379.

Supreme Court of North Carolina

April 25, 1923

Appeal from Superior Court, Guilford County; Harding, Judge.

R. M Dixon, alias Ellis Nassar, was convicted of forgery and fraudulently uttering and publishing two forged checks, and he appeals. Reversed, and new trial ordered.

In a prosecution for forgery and fraudulently uttering and publishing forged checks, it is permissible for a witness to state that the checks had been sent to the drawee bank for collection, and there protested for nonpayment and returned and in corroboration of this testimony the checks themselves together with the notary's certificate, may be offered in evidence.

In a prosecution for forging and uttering two forged checks, held that it was error to permit the teller of the bank to whom the checks had been returned after protest for nonpayment to testify that the reason for nonpayment, as shown by the protest, was "No account," meaning that no account was carried in the name of the drawer.

Criminal prosecution tried upon an indictment charging the defendant with forgery and with fraudulently uttering and publishing two forged checks, one drawn on the Merchants' Bank & Trust Company of Winston-Salem, N. C., for $210, payable to the order of R. M. Dixon, and signed A. C. Corbett, and the other drawn on the same bank for $198, payable to the order of R. M. Dixon, and signed A. C. Corbett. These two checks were presented by the defendant at the Greensboro National Bank for deposit, and were left there by him for collection, he being told at the time by the teller that it was contrary to the rules of the bank to allow strangers to draw money against uncollected funds, and that he would send the checks to Winston-Salem for collection, and, when collected, would place the proceeds to the defendant's credit. The defendant gave his name to the teller as R. M. Dixon, and indorsed that name upon the back of the checks at the time of their delivery to the teller.

The checks were forwarded in due course of mail to the bank at Winston-Salem for collection, and, according to the testimony of the teller of the Greensboro Bank, were returned unpaid and protested, with the reason of the protest stated thereon as "No account." Defendant objected to this evidence, and duly noted an exception.

The defendant did not procure from the Greensboro Bank any money by reason of his deposit of the checks, but, as testified to by the teller, he simply deposited them for collection, with the understanding that they were so deposited, and that he would not be permitted to draw any funds from the Greensboro Bank unless and until the said checks had been reported by the bank at Winston-Salem as paid.

His honor charged the jury that it could make no difference whether A. C. Corbett was a real or fictitious person if the state had satisfied them beyond a reasonable doubt that the defendant was the real maker of the checks; they would convict him if they further found the checks were made and executed with the requisite intent to defraud. Defendant excepted. From an adverse verdict, and judgment of two years in the state prison, the defendant appealed.

Louis W. Gaylord, of Greenville, and Wm. P. Byoum, of Greensboro, for appellant.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

STACY J.

For the purpose of showing that the checks in question were made out in the name of a fictitious person, or that they were forged by the defendant, the teller of the Greensboro bank, over objection, was allowed to give the reason for their nonpayment by the Winston-Salem bank, as shown by the protest, to be "No account"--meaning that no account was carried at said bank in the name of A. C. Corbett. It was permissible for the witness to state that the checks had been sent to the Winston-Salem bank for collection, and that they had been protested for nonpayment and returned. In corroboration of this testimony we see no reason why the checks themselves, together with the notary's certificate, should not have been offered in evidence. State v. McCormick, 57 Kan. 440, 46 P. 777, 57 Am. St. Rep. 341; 3 R. C. L. 1328. But this was not done, and the objection is based upon other grounds. The prosecution was seeking to accomplish quite a different end. In the admission of the evidence, as offered, we think there was error. The reason for the protest of the present checks, as stated by the notary, considering the purpose for which it was used, if not hearsay on his part, was a mere ipse dixit of a third person who was not offered as a witness at the trial, so that such memorandum could be considered as supporting or in corroboration of his evidence. Farrington v. State, 10 Ohio, 354; State v. Behrman, 114 N.C. 797, 19 S.E. 220, 25 L. R. A. 449; State v. Dowdy, 145 N.C. 432, 58 S.E. 1002; 26 C.J. 963.

While doubtless the same conclusion would be reached in the case of a foreign bill of exchange, which is required by our law to be protested for nonacceptance or nonpayment (C. S. 3134 and 3135), yet it may be observed that, in the case at bar, no protest of the instant checks was necessary (C. S. 3134) though it was permissible under C. S. 3100. 3 R. C. L. 1327. However, as to this...