State v. Russell, No. 48

Docket NºNo. 48
Citation282 N.C. 240, 192 S.E.2d 294
Case DateNovember 15, 1972
CourtUnited States State Supreme Court of North Carolina

Page 294

192 S.E.2d 294
282 N.C. 240
STATE of North Carolina
v.
John Henry RUSSELL.
No. 48.
Supreme Court of North Carolina.
Nov. 15, 1972.

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.

MOORE, Justice.

In the Court of Appeals defendant admitted that he could find no error in the record of the trial, but requested that the [282 N.C. 242] 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-

Page 296

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
                

[282 N.C. 243] 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 [282 N.C. 244] 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

Page 297

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;...

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21 practice notes
  • State v. Rankin, No. 23A18
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 21, 2018
    ...15A-924(a)(5) (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 w......
  • State v. Squire, No. 3
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • May 10, 1977
    ...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......
  • State v. McAllister, No. 62
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • May 6, 1975
    ...alleged 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 'i......
  • State v. Brice, No. 244PA16
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • November 3, 2017
    ...informalities which could not possibly have been prejudicial to the rights of defendant in the trial court," quoting State v. Russell , 282 N.C. 240, 248, 192 S.E.2d 294, 299 (1972). According to the State, the Court of Appeals implicitly held in State v. Stephens , 188 N.C. App. 286, 293, ......
  • Request a trial to view additional results
21 cases
  • State v. Rankin, No. 23A18
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 21, 2018
    ...15A-924(a)(5) (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 w......
  • State v. Squire, No. 3
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • May 10, 1977
    ...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......
  • State v. McAllister, No. 62
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • May 6, 1975
    ...alleged 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 'i......
  • State v. Brice, No. 244PA16
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • November 3, 2017
    ...informalities which could not possibly have been prejudicial to the rights of defendant in the trial court," quoting State v. Russell , 282 N.C. 240, 248, 192 S.E.2d 294, 299 (1972). According to the State, the Court of Appeals implicitly held in State v. Stephens , 188 N.C. App. 286, 293, ......
  • Request a trial to view additional results

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