State v. Phillips, 74

• Decision Date: 28 February 1962
• Docket Number: No. 74,74
• Citation: 256 N.C. 445,124 S.E.2d 146
• Parties: STATE, v. Charles D. PHILLIPS.
• Court: North Carolina Supreme Court

Page 146

124 S.E.2d 146

256 N.C. 445

STATE, v. Charles D. PHILLIPS.

No. 74

Supreme Court of North Carolina.

Feb. 28, 1962

T. W. Bruton, Atty. Gen., and Harry W. McGalliard, Asst. Atty. Gen., for the State.

S. Thomas Walton, Asheville, for defendant.

MOORE, Justice.

The court erred in denying defendant's motion for nonsuit.

Three elements are necessary to constitute the offense of forgery: (1) There must be a false making or alteration of some instrument in writing; (2) there must be a fraudulent intent; and (3) the instrument must be apparently capable of effecting a fraud. State v. Dixon, 185 N.C. 727, 117 S.E. 170.

The State's evidence is sufficient to justify the inference that defendant aided and abetted Jarrett in the execution of the purported check. The check is sufficient in form to constitute a negotiable instrument payable 'to order.' G.S. § 25-14. But the State offered no evidence tending to show the falsity of the instrument, i. e., that it was executed without authority.

If the name signed to a negotiable instrument, or other instrument requiring a signature, is fictitious, of necessity, the name must have been affixed by one without authority, and if a person signs a fictitious name to such instrument with the purpose and intent to defraud--the instrument being sufficient in form to import legal liability--an indictable forgery is committed. However, if the purported maker is a real person and actually exists, the State is required to show not only that the signature in question is not genuine, but was made by defendant without authority. 'To show that the defendant signed the name of some other person to an instrument, and that he passed such instrument as genuine, is not sufficient to establish the commission of a crime. It must still be shown that it was a false instrument, and this is not established until it is shown that a person who signed another's name did so without authority.' State v. Dixon, supra.

'Evidence that the name signed to an instrument is that of a fictitious person is admissible to prove that the instrument is a forgery, and any circumstantial evidence tending to prove that the name is that of a fictitious person is likewise admissible. Thus persons so situated that they would probably know the signer if he existed may testify that they do not know of any such person. Similarly, evidence as to the result of inquiries made for persons whose names appear on an instrument is admissible to show their nonexistence, although the person making the inquiries may have been unacquainted with the place, or the search may not have been extensive. Likewise evidence is admissible as to the result of an inspection of the assessment rolls of the town where such persons were alleged to live. In the case of a check it may be shown that the drawer had no account with the bank on which it was drawn, or was not a customer thereof; * * *.' 37 C.J.S. Forgery § 82, p. 94. '* * * (T)he testimony of a proper officer of the bank on which a check was drawn that the purported maker of such check...