State v. . Dixon
117 S.E. 170
N.C.
1923
Check Treatment
Stact, J.

For the purpose of showing that the checks in question were made out in the name of a fictitious person, or that they were forged by the defendant, the teller of the Greensboro bank, over objection, was allowed to give the reason for their nonpayment by the Winston-Salem bank, as shown by the protest, to be “No account”— meaning that no account was carried at said bank in the name of A. C. Corbett. It was permissible for the witness to state that the checks bad been sent to the Winston-Salem bank for collection, and that they bad been protested for nonpayment and returned. In corroboration of this testimony, we see no reason why the checks themselves, together with the notary’s certificate, should not have been offered in evidence. S. v. McCormick, 57 Kan., 440; 3 R. C. L., 1328. But this was not done, and the objection is based upon other grounds. the prosecution was seeking to accomplish quite a different end. In the admission of the evidence, as offered, we think there was error. the reason for the protest of the present checks, as stated by the notary, considering the purpose for which it was used, 'if not hearsay on bis part, was a mere ipse dixit of a third person who was not offered as a witness at the trial so that such memorandum could be considered as supporting, or in corroboration of bis evidence.’ Farrington v. State, 10 Ohio, 354; S. v. Behrman, 114 N. C., 797; S. v. Dowdy, 145 N. C., 432; 26 C. J., 963.

While doubtless the same conclusion would be reached in the case of a foreign bill of exchange, which is required by our law to be protested for nonacceptance or nonpayment (C. S., 3134 and 3135), yet it may be observed that, in the case at bar, no protest of the instant checks was necessary (C. S., 3134), though it was permissible under C. S., 3100; 3 R. C. L., 1327. However, as to this last proposition, we make no present decision, because it is not before us, and what we have said must be understood as being confined to the questions raised by the defendant’s appeal. This is a criminal prosecution, not a civil action involving a construction of the law merchant, and the State is seeking to prove by the evidence now in question," more than presentment, demand, and protest of the checks for nonpayment or dishonor. 3 R. C. L., 1328; S. v. Behrman, supra. For these purposes, the evidence may be .competent (Gordon v. Price, 32 N. C., 385; C. S., 2979); but, in a criminal action, it must be remembered that the defendant is clothed with a *730 constitutional right of confrontation. 3 R. C. L., 1328. This may not be taken away, even by statute, and assuredly not when the legislative enactment purports to deal only with negotiable instruments and the civil law of evidence. Dakin v. Graves, 48 N. H., 45; 96 Am. Dec., 606, note. In this connection it may be well to note that section 10, chapter 13, of the Eevised Statutes of North Carolina (1837), making the notary’s certificate of protest prima facie evidence against the drawer, of a demand on the drawee and notice to the drawer, apparently has not been brought forward and made a part of our present uniform negotiable-instruments law (adopted in 1899). But back to the subject in hand.

“In all criminal prosecutions every man has the right to be informed of the accusation against'him, and to confront the accusers and witnesses with other testimony.” Const., Art. I, sec. 11. “We take it that the word confront does not simply secure to the accused the privilege of examining witnesses in his behalf, but is an affirmance of the rule of the common law that in trials by jury the witness must be present before the jury and accused, so that he may be confronted; that is, put face to face.” Pearson, C. J., in S. v. Thomas, 64 N. C., 74. And further,, the defendant is entitled to have the testimony offered against him given under the sanction of an oath, and to require the witnesses to speak of their own knowledge and to be subjected to the test of a competent cross-examination.

The defendant also assigns as error the charge of his Honor that it could make no difference whether A. C. Corbett, the purported maker of the checks, was a real or fictitious person, if the defendant actually signed such name to the checks with intent to .defraud the officers of the bank or any other person. If the drawer had no existence, of necessity, the name must have been affixed by some one without authority, and if this were done by the defendant with the purpose and intent to defraud— the instruments being sufficient in form to import legal liability — an indictable forgery would have been committed. Barnes v. Crawford, 115 N. C., 76; Williams v. State, 126 Ala., 50; Maloney v. State, 18 Ann. Cas., 480; 2 Words and Phrases, 614. “Forgery may be committed of any writing which, if genuine, would operate as the foundation of another man’s liability, or evidence of his right. It is sufficient if the instrument forged, supposing it to be genuine, might have been prejudicial.” 19 Cyc., 1380; S. v. Webster, 32 L. R. A. (N. S.), 337. Three elements are necessary to constitute the offense: (1) There must be a false making or other alteration of some instrument in writing; (2) there must be a fraudulent intent; and (3) the instrument must be apparently capable of effecting a fraud. 19 Cyc., 1373. But if A. C. Corbett, the purported maker, were a real person and actually existing, the State would be required to show not only that the signatures in *731 question were not genuine, but tbat they were made by tbe defendant without authority. People v. Lundin, 117 Cal., 124; S. v. Swan, 60 Kan., 461; 19 Cyc., 1411. To show that the defendant signed the name of some other person to an instrument, and that he passed such instrument as genuine, is not sufficient to establish the commission of a crime. It must still be shown that it was a false instrument, and this is not established until it is shown that the person who signed another’s name did so without authority. People v. Whiteman, 114 Cal., 338. In this respect, we think his Honor’s charge was prejudicial to the defendant.

For the errors, as indicated, there must be a new trial or a venire de novo; and it is so ordered.

New trial.