State v. Hall

108 N.C. 776 | N.C. | 1891

Clark, J.

after stating the case : To constitute forgery it is essential that there is an intent .to defraud. It is not essential that anyone be actually defrauded, or that any act be done other than the fraudulent making or altering the writing. The forgery of the order upon Miller and its presentation to his partner was evidence, ample, of the intent to defraud. State v. Lane, 80 N. C., 407; State v. Morgan, 2 D. & B., 348. It was immaterial whether Miller himself, or Basinger for him, as his partner, filled the order, or, indeed, whether the order was filled at all or not. This is not an indictment for obtaining goods under false pretences. Indeed, upon an allegation of an intent to defraud A, it is not a variance to show an intent to defraud A and B. 1 Whart. Cr. Law, 713, 743a. And, in fact, it was not necessary to allege the name of any person or corporation intended to be defrauded. The Code, § 1191. • Besides, there was no instruction refused or exception taken to the charge as to the second count. The alleged errors were clearly such as could not have affected the verdict on the second count. This being so, and there being a general verdict of guilty on both counts, with but one sentence imposed, the law will apply it to the verdict upon the count to which no exception was assigned. State v. Toole, 106 N. C., 736.

The defendant moves here in arrest of judgment—

1. Because, having been indicted jointly with Freeman, who was found guilty at the former term, it was error to make a mis-trial as to the defendant and try him alone at the next term. Mis-trials (except in capital cases) and severances are matters within the discretion of the trial Judge. We see, therefore, nothing to review in the course pursued here. When several defendants are indicted jointly, it is not unusual to try one or more, and issue capiases for others not taken, or, if taken, there may be a continuance as to some of the defendants, in the discretion of the Court. Besides, there was no exception at the time, and it is too late to raise this objection after verdict.

2. The second ground urged in arrest of judgment is that the order is not such an one as is the subject of forgery under the statute. That is true, but the indictment is good for misdemeanor at common law. State v. Lamb, 65 N. C., 419; State v. Leak, 80 N. C., 403; State v. Covington, 94 N. C., 913. And being an offence committed with intent to defraud, the sentence imposed is within the limit authorized by The Code, § 1097. There is

No error.