State v. Coleman , 253 N.C. 799 ( 1961 )

117 S.E.2d 742 (1961) 253 N.C. 799

STATE
v.
James Penny COLEMAN, Jr.

No. 723.

Supreme Court of North Carolina.

January 20, 1961.

T. W. Bruton, Atty. Gen., H. Horton Rountree, Asst. Atty. Gen., for the State.

Britt, Campbell & Britt, Lumberton, Nance, Barrington & Collier, Fayetteville, for defendant appellant.

WINBORNE, Chief Justice.

The record shows that defendant entered plea in abatement to the denial of which defendant excepted. This constitutes assignment of error Number 1. But apparently this has been abandoned. Since this exception is not set out in appellant's brief, or in support of which no reason or argument is stated or authority cited, it is taken as abandoned by him. Rule 28 of the Rules of Practice in Supreme Court, 221 N. C. at page 563.

Upon denial of plea in abatement defendant through counsel interposed a plea of former jeopardy and former acquittal, and in support thereof introduced the same two bills of indictment, the first being No. 16032, as above set forth, and the second No. 16447, upon which defendant was put on trial. Defendant likewise introduced the order entered in case No. 16032 in which the facts relating to procedural matters at the former trial are set forth in detail. The plea of former jeopardy was denied and defendant excepts. This constitutes defendant's Exception No. 2.

In the light of the factual situation reflected in the record the bill of indictment No. 16032 was insufficient to charge the offenses. According to the wording of the bill of indictment No. 16032 it is obvious that the State was charging only the two counts of forging the check, and uttering the same. The language used does not allege what the forged endorsement was. Hence to point up the insufficiency thereof, bill of indictment No. 16447 "spells out" the forged endorsement in accurate language.

And as contended by the Attorney General, even though the offense of forgery is charged in statutory language, as argued by defendant, the statutory words must be supplemented by other allegations which so plainly, intelligibly and explicitly set forth every essential element of the offense as to leave no doubt in the mind of the accused and the court as to the offense intended to be charged. See State v. Lytle, 64 N.C. 255; State v. Helms, 247 N.C. 740, 102 S.E.2d 241; State v. Banks, 247 N.C. 745, 102 S.E.2d 245.

Now as to Assignments of Error Numbers 4 and 6 predicated upon exceptions of like numbers to the denial of defendant's motion for judgment as of nonsuit: When taken in the light most favorable to the State the evidence appears to be sufficient to support the charge contained in the bill of indictment No. 16447. The offenses charged are violations of G.S. § 14-119 and G.S. § 14-120. Moreover, the evidence before the Court shows that the defendant stipulated that he signed the name of John A. McLauchlin on the back of check No. 525 and identified as Exhibit A. John McLauchlin testified that he had not authorized anyone to sign his name to this check. He testified that the school did not owe him the money represented by that check, and that he had been paid for all the work he had performed. And the check itself shows that it was drawn for salary of four weeks—200 hours work, and shows a total salary of $310 less deductions for withholding tax of $12, and retirement of $16.28. Hence there is no error in the denial of motions for judgment as of nonsuit.

Matters to which other exceptions relate have been given due consideration, and in them prejudicial error is not made to appear.

Authorities relied upon by defendant are distinguishable in factual situation.

No error.

BOBBITT, HIGGINS and MOORE, JJ., dissent.