28 N.C. 79 | N.C. | 1845
The defendant was tried upon an indictment for forgery. Upon the first count in the indictment he was acquitted. The second count was in the following words, to wit: "And the jurors, etc., further present that the said Daniel Thornburg, on the day and year aforesaid, with force and arms, in the county aforesaid, did purchase of one Henry Wright, and did then and there have in his possession, a certain bond for the payment of money, which said bond is as follows, to wit: `$18. Against 25 December next I promise to pay Henry Wright $18 for value received of him. 2 June, 1843. C. Lineberger.' On which said bond, at the time the same came into the possession of the said Daniel Thornburg as aforesaid, to wit, on the said 10th day of February, there was duly entered an acquittance for the sum of $11; and that the said Daniel Thornburg then and there wittingly and falsely did commit forgery by falsely, wittingly, and corruptly rubbing out, erasing, and obliterating the said acquittance for $11, with intent to defraud one Caleb Lineberger, against the form of the statute," etc. *68
The defendant was convicted upon this count; but, on motion, the court arrested the judgment, and from that decision the solicitor for the State appealed to the Supreme Court. The defendant was convicted on the second count in the indictment. He then made a motion in arrest of judgment, and the motion was sustained. The solicitor for the State appealed. Forgery is a false making — making malo animo — of a written instrument, for the purpose of fraud and deceit, the word "making" being considered as including every alteration of or addition to a true instrument. 2 Russell on Crimes, 317; 2 East P. C., 852, 965; 2 Leach, 785. The charge against the defendant in the second count is for falsely, wittingly, and corruptly rubbing out, erasing, and obliterating an acquittance for $11, which acquittance had been indorsed on the bond mentioned in the indictment with an intent to defraud one Caleb Lineberger, the obligor, against the form of the statute, etc. We have no statute making the act of erasing, rubbing out, and obliterating an acquittance forgery; and the intentional destruction of an acquittance, in whatever way, cannot be either a making a written instrument or the alteration of or addition to a truly written instrument, so as to bring the act within the definition of forgery. The judgment was, therefore, correct, and it must be
PER CURIAM. Affirmed.