State v. Sutton

188 S.E.2d 596 (1972)

14 N.C. App. 422

STATE of North Carolina v. William Earl SUTTON.

No. 723SC287.

Court of Appeals of North Carolina.

May 24, 1972.

*597 Atty. Gen. Robert Morgan by Associate Atty. Gen. Charles A. Lloyd, for the State.

Laurence S. Graham, Greenville, for defendant appellant.

PARKER, Judge.

While the money order involved in each case is sufficiently described in the first count in each bill of indictment, the second count in each bill refers only to "a certain false, forged and counterfeited money order is as follows, that is to say: And did present and cash said money order.. . ." No further description of the particular "counterfeited money order" which defendant is charged with having uttered is contained in the second count in either bill. One may speculate that the reference to "said money order" was intended to refer to the particular money order as described in the first count in each bill, but it is not even entirely clear that this is so. In any event "[i]n an indictment containing several counts, each count should be complete in itself." State v. McKoy, 265 N.C. 380, 144 S.E.2d 46; State v. Hackney, 12 N.C.App. 558, 183 S.E.2d 785.

"In all criminal prosecutions, every person charged with crime has the right to be informed of the accusation. . . ." Art. I, § 23, Constitution of North Carolina. *598 To implement this basic constitutional right, our Supreme Court has many times held that an indictment "to be good must allege lucidly and accurately all the essential elements of the offense endeavored to be charged. The purpose of such constitutional provisions is: (1) such certainty in the statement as will identify the offense with which the accused is sought to be charged, (2) to protect the accused from being twice put in jeopardy for the same offense, (3) to enable the accused to prepare for trial, and (4) to enable the court, on conviction or plea of nolo contendere or guilty to pronounce sentence according to the rights of the case." State v. Stokes, 274 N.C. 409, 163 S.E.2d 770, and cases cited therein; State v. Able, 11 N.C.App. 141, 180 S.E.2d 333.

Tested by these long established standards, we find the allegations contained in the second count in each bill of indictment insufficient. Since "[i]t is an essential of jurisdiction that a criminal offense shall be sufficiently charged in a warrant or an indictment," State v. Strickland, 243 N.C. 100, 89 S.E.2d 781, defendant's motion in arrest of judgment on the verdicts rendered on the second count in each bill of indictment must be allowed.

As to the charges contained in the first count in each bill of indictment, defendant's contention that there was a fatal variance between the charge and the State's proof is without merit. The first count in each bill expressly alleged that defendant, with intent to defraud, committed forgery by endorsing the name of William O. Marley on the money order involved. This charged an offense under the second sentence of G.S. § 14-120, which provides in part as follows:

"If any person . . . with intent to defraud . . . shall falsely make, forge or counterfeit any endorsement on any instrument described in the preceding section, whether such instrument be genuine or false, . . . the person so offending shall be guilty of a felony.. . ." (Emphasis added.)

The money orders here involved were instruments as described in G.S. § 14-119. To convict of the felony of forging the endorsements thereon under the second sentence of G.S. § 14-120, it was not necessary to allege or to prove forgery of the face of the money orders, which would have been separate felonies under G.S. § 14-119. There was no variance between the allegations in the first count in each bill and the State's proof in support thereof. The State's proof was ample to support the verdicts.

Appellant's assignments of error directed to the court's charge to the jury, most of which are based on his mistaken assumption that in the first count in each bill he was being charged under G.S. § 14-119 rather than under the second sentence of G.S. § 14-120, are also without merit. When the charge is considered as a whole, we find no prejudicial error.

The result is:

As to the charges attempted to be alleged in the second count in each bill of indictment, the judgment is

Arrested.

As to the judgments imposed on the verdicts finding defendant guilty of the charges contained in the first count in each bill of indictment, we find

No error.

BRITT and HEDRICK, JJ., concur.