State v. White

• Decision Date: 05 November 1888
• Parties: STATE v. WHITE et al.
• Court: North Carolina Supreme Court

7 S.E. 715

101 N.C. 770

STATE v. WHITE et al.

Supreme Court of North Carolina

November 5, 1888

Appeal from superior court, Wake county; AVERY, Judge.

Defendants were indicted for forgery with intent to defraud. They were found guilty, and appeal.

An instruction that the finding of the forged note among the assets of the bank, after the departure of the defendants was not a finding that defendants had possession, and warranted no inference that defendants knew of, were guilty of, or were in any way connected with, the making of the note, is rightly refused; the giving of such direction being unauthorized by the tenor of the evidence.

The Attorney General and John Devereux, Jr., for the State.

Fuller & Snow and W. R. Henry, for defendants.

SMITH C.J.

The defendants, Charles E. Cross and Samuel C. White, in an indictment found by the grand jury of the superior court of the county of Wake, are charged as follows "The jurors for the state, upon their oath, present that Charles E. Cross and Samuel C. White, both late of the county of Wake and state aforesaid, on the 8th day of March, in the year of our Lord one thousand eight hundred and eighty-eight and within the jurisdiction of this court, at and in the county aforesaid, unlawfully and feloniously, of their own head and imagination, did wittingly and falsely make, forge, and counterfeit, and then and there wittingly assent to the falsely making, forging, and counterfeiting, a certain promissory note for the payment of money, which said forged promissory note is of the tenor following, that is to say:

"'$6,250.00. March 8, 1888.

"'Four months after date we, D. H. Graves, principal, and W. H. Sanders, the other subscribers, sureties, promise to pay the State National Bank of Raleigh, North Carolina, or order, sixty-two hundred and fifty dollars, negotiable and payable at State National Bank of Raleigh, N. C., with interest at the rate of eight per cent. per annum after maturity until paid, for value received, being for money borrowed, the said sureties hereby agreeing to continue and remain bound for payment of this note and interest, notwithstanding any extension of time granted from time to time to the principal debtor, waiving all notice of such extension of time from either payor or payee; and I do hereby appoint Samuel C. White, cashier, my true and lawful attorney to sell any or all collaterals we may have in his hands to pay this claim, if I should fail to do so when said claim falls due, after giving me ten days' notice of his intention to sell the same, and pay any surplus that may remain to me. D. H. GRAVES.

"'W. H. SANDERS.'

--And upon the back of which said false, forged, and counterfeited promissory note is stamped and written: 'D. D. H. Graves. $6,250.00. July 8 th,' --with intent to defraud; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state."

The second count charges the defendants with feloniously and wittingly uttering, and publishing as true, a certain false, forged, and counterfeited promissory note, for the payment of money,--setting it out in the same descriptive words as in the first count, "with intent to defraud:" adding: "They, the said Charles E. Cross and Samuel C. White, at the time they so uttered and published the said false, forged, and counterfeited note then and there well knowing the same to be false, forged, and counterfeited, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state." The third is in all respects similar to the first count charging the forgery, except that it concludes thus: "With intent to defraud then and there the State National Bank, a corporation then and there duly created and existing under the laws of the United States, contrary," etc., as before. The fourth count charges a conspiracy with others to defraud the same bank by making, forging, and counterfeiting and uttering such promissory note, "with intent to defraud," contrary, etc., as in the other counts.

At their arraignment for trial at the July term of said superior court the defendants put in a plea in abatement to the jurisdiction of the court, which is in these words:

"And the said Charles E. Cross and Samuel C. White, in their own proper persons, come into court here, and, having heard the indictment in the above-entitled cause read, do say: That the said court here ought not to take cognizance of the conspiracy and conspiracies, forgery and forgeries, uttering and utterings, in the said indictment specified, because, protesting, each for himself, that he is not guilty of the same, as so averred, nevertheless the said Charles E. Cross and Samuel C. White each severally says: That at the time of the alleged conspiracy and conspiracies, forgery and forgeries, uttering and utterings, in said indictment specified, there was a National Banking Association, duly organized and acting under the laws of the Untied States in Raleigh, Wake county, N. C., known as the 'State National Bank of Raleigh, N. C.,' having its place of business, and doing its said business, in the said city of Raleigh, in the county of Wake, and state of North Carolina, and within the jurisdiction of the circuit court of the United states for the Eastern district of North Carolina. That the said Charles E. Cross was then and there an officer of said bank, to-wit, its president, and the said Samuel C. White was then and there an officer of said bank to-wit, its cashier. That said alleged conspiracy and conspiracies, forgery and forgeries, uttering and utterings, were made, entered into, committed, and done by the said Charles E. Cross, and afterwards assented to by the said Samuel C. White, for the purpose of supporting, sustaining, and making a certain false entry and entries in the books of said bank; and that the said false entry and entries were by the said Samuel C. White, cashier as aforesaid, acting as cashier, actually made in and upon the books of said bank,--the said Charles E. Cross being then and there aiding and abetting, for the purpose or deceiving, and with the intent to deceive, the agent of the United States, to-wit, the bank examiner of the United States, duly appointed to examine into the affairs of the said association, to-wit, the State National Bank of Raleigh, N.C. That the said note in said indictment specified was never uttered or published in any way, nor to any other person or corporation, nor was there any intent or attempt to do so. That the said note in the said indictment specified was entered upon and in the books of the State National Bank aforesaid, as the property of the said 'The State National Bank of Raleigh, N. C.,' and placed among the assets by the said Charles E. Cross and Samuel C. White, as aforesaid, for the purpose and with the intent aforesaid. The above facts the said Charles E. Cross and Samuel C. White are ready to verify. Whereupon they pray judgment of the said court now here, will or ought to take cognizance of this indictment here preferred against them, and that by the court here they may be dismissed and discharged," etc. "C. E. CROSS.

"SAM'L C. WHITE."

The plea is verified by their several oaths, and thereupon the solicitor, T. M. Argo, prosecuting for the state, enters a demurrer to said plea; which demurrer, upon argument, is sustained, and the defendants' motion to dismiss the action is denied, and an appeal from the ruling at this stage of the proceeding refused,--to all which rulings defendants except. The defendants each and severally plead not guilty of the charges contained in the indictment. Upon the issue thus joined upon the evidence after argument, and the charge of the court, the jury returned a verdict of guilty as to both defendants upon the two first counts of the indictment: and, judgment being pronounced thereon, the defendants appeal to this court, assigning various errors to the rulings of the court during the progress of the trial.

The first exception is to the action of the court in sustaining the demurrer and disallowing the plea to the jurisdiction of the court. It is insisted, in the carefully prepared brief for the accused laid before us, with an oral argument in its support, and a large array of adjudications and other authorities, that (and we copy the words of the contention) "the state court has no jurisdiction over the case at bar. The false entries on the books of the State National Bank of Raleigh, N. C., are so false because based upon the forged notes. If the notes are not forged, the entries are not false. To determine the falsity of said entries, the federal court has exclusive jurisdiction. If the state court be conceded jurisdiction to try the defendants for said forgeries, the federal court cannot afterwards try the defendants for the false entries; the forgeries being integral and essential elements in the false entries. The federal court having exclusive jurisdiction to determine the falsity of the entries, and to punish the makers thereof, it follows that jurisdiction to determine the falsity of the entries, and to punish the makers thereof, it follows that jurisdiction to try the defendants for said forgeries cannot be conceded to the state court." The argument proceeds upon the assumption that the forgery, a misdemeanor of high grade under the laws of the state, being the means by which the false entries are made, and by reference to which the falsity is determined, is so associated with the entries, and so merges in them, as a constituent element in the offense constituted and punished under the act of congress, as to oust the jurisdiction of the state court to try and punish the forgery as a distinct and separate crime. We shall not...