State v. Draughon

• Decision Date: 27 October 1909
• Citation: 65 S.E. 913,151 N.C. 667
• Parties: STATE v. DRAUGHON.
• Court: North Carolina Supreme Court

65 S.E. 913

151 N.C. 667

STATE v. DRAUGHON.

Supreme Court of North Carolina

October 27, 1909

Appeal from Superior Court, Sampson County; W. R. Allen, Judge.

Walter M. Draughon was convicted of forgery, and appeals.New trial granted.

Expressions indicating physical or mental feelings may be proven.

Fowler & Crumpler, F. R. Cooper, and J. D. Kerr, for appellant.

Attorney General Bickett and G. E. Butler, for the State.

WALKER J.

The defendant was indicted in the court below in two counts.In one of the counts he is charged with the forgery of a deed purporting to have been made and executed by G. B. Draughon to the defendant, dated November 2, 1902, and conveying to him in fee certain land containing 20 acres and therein described for the nominal sum of $1.In the other count he is charged with uttering and publishing the forged instrument.The bill was drawn under sections 3424and3427 of the Revisal of 1908.In the first count it is alleged that the forgery was committed with intent to defraud G. B. Draughon the alleged maker of the deed, and in the second count it is alleged that the defendant, by the forgery, intended to defraud John M. Mathis, Donnie Mathis, and others, the said Donnie Mathis and others being the heirs of G. B. Draughon who was dead when the bill of indictment was returned by the grand jury.It appears that an indictment had been found at a previous term of the court for the same forgery simply with intent to defraud J. M. Mathis and his wife, Donnie Mathis the said Donnie Mathis being the child of G. B. Draughon, who was then living.The defendant was acquitted at the trial upon that indictment under the charge of the court that there could be no such a thing in the law as an intent to defraud the heir of a living person who had but a bare possibility of inheritance from her father, applying the maxim, "Nemo est hæres viventis."At the trial upon the second indictment the defendant pleaded former acquittal, and relied, in support of his plea, on the verdict and judgment in the first trial.The court held as matter of law upon the admitted facts that there had been no former acquittal of the defendant upon the charge contained in the second bill of indictment, and instructed the jury to disregard the plea, and to consider the case and the evidence therein only upon the defendant's plea of not guilty.The jury returned a verdict of guilty, and judgment that the defendant be confined in the state penitentiary for the term of three years was rendered thereon.The defendant, having duly excepted to divers rulings of the court now assigned as errors, appealed to this court.As to the plea of former acquittal, it is not absolutely necessary for us to pass upon it, as we think there was error in the exclusion of testimony offered by the defendant, but we will refer to it later on.

The state introduced as a witness Sherman Royall, who testified to facts very prejudicial to the defendant, and, among others, that G. B. Draughon had virtually denied in a conversation with the defendant, which took place in the presence and hearing of the witness, that he had executed the deed, and that on one occasion, when the defendant was not present, as it impliedly appears, he requested the witness to see the defendant about a rumor to the effect that the latter had a deed from him, G. B. Draughon, and to ask the defendant for permission to see the deed, which request the defendant refused, but he did show the back of the deed, on which was written, "G. B. Draughon to W. M. Draughon."The defendant proposed to prove by the same witness that G. B Draughon admitted to him that he had executed the deed in question to the defendant for the 20 acres of land, and gave as his reason that he intended to do more for the defendant than for any other child, as the defendant had done more for him and had been better to him than any of his children.This evidence, on objection by the state, was excluded, and the defendant excepted.The Attorney General, with his usual frankness and fairness, conceded in the argument before us that the court committed an error in rejecting the evidence.We take an extract from his very able and well-prepared brief: "It seems to me that the exclusion of this testimony was error.The state had proved by the witness certain declarations of G. B. Draughon prejudicial to the defendant.It would seem that upon cross-examination the defendant should have been allowed to show that G. B. Draughon had declared that he had given the defendant the land, and why.It tended to support the defendant's contention that the deed was genuine."Our opinion is that the testimony was competent, and should have been admitted by the court and considered by the jury, for the reason that it tended to show the disposition of the father towards his son at the...