112 S.E. 23 | N.C. | 1922
Criminal prosecution tried upon an indictment charging the defendant with forgery.
There was evidence on behalf of the State tending to show that the defendant had obtained the sum of $626.70 from two banks in Gastonia by uttering and publishing certain false, fraudulent and forged checks.
The defendant offered evidence tending to show that he was in the State of Alabama at the time of the alleged offense. His evidence, if believed, was sufficient to establish an alibi.
From an adverse verdict and a judgment of ten years in the State's prison the defendant appealed, assigning errors. The State's evidence, if believed, showed conclusively that the defendant was the person who committed the crime for which he was being tried. Conversely, the defendant's evidence, if believed, established conclusively an alibi on behalf of the defendant. The jury were at liberty to accept either view of the evidence. The controlling issue, upon the trial, was the identity of the person who uttered the forged checks.
The defendant prosecutes this appeal, assigning as error his Honor's refusal to admit certain material and competent evidence, (805) and contends but for the exclusion of this evidence the jury would have returned a verdict of acquittal.
The evidence of the State was to the effect that the forgery was committed in Gastonia, N.C. on the morning of 29 November, 1921. The defendant, who was a traveling salesman, testified that he was not in Gastonia at this time, but that he was approximately five hundred miles away in Gadsden, Ala. In corroboration of this testimony he offered to show, by introducing the original written order, that he had taken an order for the purchase of a "money weight" scale from one J. J. Cook in Gadsden, Ala., on the afternoon of 28 November, 1921. He testified that the said order was signed in his presence and witnessed by him on that date. The order, upon objection, was excluded.
There was also evidence tending to show that the defendant and his wife took their meals at the Mallard Hotel, in Gadsden, Ala., from 7 November to 9 December, 1921. Mrs. O. L. Lewis, the proprietress of said hotel, testified that both were there on the 28th and 29th of November, 1921, and she identified three checks which had been given to her for their board; but, upon objection, she was not permitted to state *860 when they were given nor for what period of time each was intended to cover. In fact she was not allowed to make any explanation at all in regard to them. The defendant then offered the checks as corroborative evidence and they were excluded.
The defendant further testified that on the morning of 29 November he went to the office of the Southern Express Company in Gadsden, received a package from the agent, signed for it on the regular delivery sheet, and this was admitted in support of his testimony as corroborative evidence.
Defendant contends that his Honor's refusal to allow him to corroborate his testimony by showing the original order, signed by Cook on the evening of 28 November was materially prejudicial to the complete establishment of his alibi. He also contends that Mrs. Lewis should have been permitted to testify in regard to the checks given to her for the board of himself and his wife. We think this evidence was competent, and tended to prove a pertinent circumstance in corroboration of the defendant's testimony. Johnson v. Ins. Co.,
For the error, as indicated, we think a new trial must be awarded, and it is so ordered.
New Trial.
Cited: S. v. Bethea,
