6 N.C. 186 | N.C. | 1812
"On demand, 1 January, 1805, I promise to pay Wyatt Ballard, or his assigns, the full sum of $1,030, the same being for value received, as witness my hand and seal this 12 November, 1803.
THOMAS WIGGINS. (SEAL.)
"Teste: B. LEWIS.
"with intention to defraud the said Thomas Wiggins, against the form of the act of the General Assembly in such case made and provided and against the peace and dignity of the State." The defendant was found guilty, and it was moved that the judgment be arrested, (1) because it is not averred in the indictment that the offense was committed after the act was in force on which the indictment is founded; and (2) that it is not stated that the forged bond purported to be attested by the subscribing witness. The case was sent to this Court. As to the first reason in arrest, the act was in force from and after 1 April, 1802, and the indictment charges that the offense was committed on 12 November, 1803, againstthe form of the act. If the offense was committed against the act, it must necessarily have been committed after the (188) act was in force; for if it were not, the defendant could not be guilty of the offense charged against him, and must have been acquitted. As to the second reason in arrest, *147 nothing need be averred which is not necessary to constitute the offense charged in the indictment. It is not necessary there should be a subscribing witness to a bond, and although there be one, it is not his signature, but the signing and sealing by the obligor, that constitute the writing a bond. The indictment avers that the writing set forth purports to be signed and sealed by the obligor, which is all that is necessary to constitute the offense and bring it within the act. And although another averment might have been made with propriety, it does not follow that itought to have been made. Let the reasons in arrest of judgment be overruled.
Cited: S. v. Newcomb,