State v. Lytle
| Decision Date | 31 January 1870 |
| Citation | 64 N.C. 255 |
| Court | North Carolina Supreme Court |
| Parties | THE STATE v. WILLIAM P. LYTLE. |
1. That the description of the bond, as placed upon the process, although unnecessary, became matter of substance, and in this case was not made out;
2. That the writing described as a bond (being given by husband to wife) was binding on no one; so that it could not be the subject of forgery.
The provision for a prosecution bond in divorce cases (Rev. Code, c. 39, s. 5) applies only where the wife, by her next friend, is plaintiff.
Where the wife is defendant her costs are to be paid in advance (unless indulged by the officers) by the husband, as his own are; and this will be enforced by order of court.
FORGERY, tried before Cannon, J., at Fall Term 1869 of BUNCOMBE Court.
The defendant had brought suit against his wife, M. L. Lytle, for divorce, and in the course of such suit had given as a prosecution bond, the instrument for the forgery of which he was indicted.
The points upon which the decision of the case turns, render it necessary to state only that the indictment contained two counts, and charged that the defendant:
1. Did forge “a certain bond and writing obligatory, which was placed as a prosecution bond, upon the process in a suit in the Superior Court of Law of said county, in which M. P. Lytle was plaintiff and Mary L. Lytle defendant, which said forged bond is as follows, that is to say :
We and each of us promise to pay the defendant in the within petition all such costs and damages as may accrue on account of the within suit not being prosecuted with effect. Given &c., A. D. 1866.
+-------------------------------------+
¦M. P. LYTLE, ¦[Seal.]¦
+-----------------------------+-------¦
¦MILLINGTON his X mark. LYTLE,¦[Seal.]¦
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Test: T. L. LYTLE.
with intent to defraud the said Millington Lytle, against the form of the Statute” &c.;
2. Did forge a certain bond as above; varying the statement by charging the suit, as “commenced or to be commenced,”--and the intent, to be, “to defraud the said Mary L. Lytle.”
It appeared in evidence that the writing in question was placed upon the paper containing the defendant's affidavit for instituting the suit; and that there was nothing else in the said paper except the said writing and affidavit; and that the paper was attached to the petition, (on which latter was also endorsed the Judge's fiat,) by being pasted together at one corner, but no other paper in said cause was so attached to it.
*2 The defendant was convicted.
Rule for a new trial &c.; Judgment, and Appeal.
Phillips & Merrimon for the appellant .
Attorney General, contra .
1 A paper may be attached in point of law, although not so in fact. Such is the case here. Long v. Magistre, 1 John. Cas. 202.
2. Although, ordinarily, a husband cannot give a bond to his wife, yet if a Statute expressly authorize it, he may. Such is the case in divorce suits, by Rev. Code, c. 39, s. 5.
In every indictment for forgery the instrument alleged to be forged must be set forth according to its tenor, in order that the court may see that it is one which (if the indictment be under a statute, as in this case) is within the statute. Our statute (Rev. Code, ch. 34, sec. 59) embraces all bonds. The indictment in this case, in the first count, describes the forged instrument as “a certain bond and writing, obligatory, which was placed, as a prosecution bond, upon the process in a suit in the Superior Court of Law of said county, in which M. P. Lytle was plainti...
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State v. Brown
...signature would have operated to no one's prejudice unless, of course, the signature of the defendant had also been false. In State v. Lytle, 64 N.C. 255, the bond allegedly forged was void on its face. We conclude that the factual situations in each of these cases are clearly distinguishab......
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State v. Stewart
... ... 223; ... Peo. v. Galloway, 17 Wend. 540. The certificate ... declared upon is not such an instrument as can be made the ... subject of forgery. 8 Am. & Eng. Enc. L. 457, 461; 2 ... East's P. C. 953; Johnson v. State, 23 Wis. 504; ... Peo. v. Shawl, 9 Cow 778; State v. Lytle, ... 64 N.C. 255; Peo. v. Harrison, 7 Barb. 560; ... Howell v. State, 37 Tex. 599; Peo. v. Mann, ... 75 N.Y. 484; Roode v. State, 5 Neb. 475; Peo. v ... Tomlinson, 35 Cal. 503; Territory v. DeLena, 41 ... P. 618; Waterman v. Peo., 67 Ill. 91; State v ... Cook, 57 Ind. 574; ... ...
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State v. Helms, 74
...and cases cited. It is noted further that in an indictment for forgery, the instrument alleged to be forged must be set forth, State v. Lytle, 64 N.C. 255; and, if lost, the substance thereof must be charged, State v. Peterson, 129 N.C. 556, 40 S.E. 9. In an indictment for obtaining money u......
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State v. Coleman
...element of the offense as to leave no doubt in the mind of the accused and the court as to the offense intended to be charged. See State v. Lytle, 64 N.C. 255; State v. Helms, 247 N.C. 740, 102 S.E.2d 241; State v. Banks, 247 N.C. 745, 102 S.E.2d Now as to Assignments of Error Numbers 4 and......