State v. . Greenlee , 12 N.C. 523 ( 1828 )

"And the jurors aforesaid upon their oath aforesaid do further present, that the said John M. Greenlee, of, etc., on, etc., with force and arms, in, etc., being indebted to one William Ainsworth in the sum of thirty dollars, and having funds in the hands of one James Avery, of, etc., did then and there write an order to the said J. A. requesting him, the said J. A., to pay to him, the said W. A., the said sum of thirty dollars; the particular date of which said order is to the jurors now here sworn unknown, which said order, as near as the jurors now here sworn can describe, was as follows, that is to say:

"MR. J. A. —

"Please to pay W. A. thirty dollars, and this shall be your order for the same. JOHN M. GREENLEE.

"With a memorandum thereunder written and signed by the said John M. Greenlee, in his own proper name, which said underwriting is as follows, as near as the jurors now here sworn can describe, that is to say:

"N. B. — Mr. A. has receipted James Greenlee for the same.

"JOHN M. GREENLEE.

"And the jurors aforesaid, upon their oath aforesaid, do further present, that the said John M. Greenlee afterwards, etc., with force and arms in, etc., the said order and memorandum aforesaid feloniously did alter and cause to be altered by then and there feloniously and falsely making, forging, and (524) adding the word to between the words has and receipted, and that he the said John M. Greenlee did then and there obliterate the letters e and d, the two last letters in the word receipted before written, in the said written memorandum aforesaid, whereby the said order, and writing under the same, became altered, and the word receipted before written in the same, by destroying the said two last letters e and d so falsely destroyed and forged as aforesaid, becamereceipt, and also by then and there falsely and feloniously making, forging, and adding the word to between the word has and the wordreceipted, before also written in the said order and memorandum, by reason of which said forging and adding so falsely made, forged, and added as aforesaid, the said underwritten memorandum became in fact and did signify that the said W. A. had thereafter to give the said James Greenlee an acquittance and receipt for the same thirty dollars aforesaid, which said order and memorandum thereunder written, so feloniously and falsely altered and caused to be altered, is as follows, as near as the jurors now here sworn can describe, that is to say:

"MR. J. A. —

"Please pay to W. A. thirty dollars.

"JOHN M. GREENLEE.

"N. B. — Mr. A. has to receipt James Greenlee for same.

"JOHN M. GREENLEE.

"With intent to defraud the said W. A. of the sum of thirty dollars, contrary to the statute in that case made and provided, and against the peace and dignity of the State."

The defendant was found "not guilty of the forgery whereof he stands charged, but guilty of the forgery in manner and form as charged against him, at common law."

Judgment for the State was rendered upon the verdict, and the defendant appealed. The false making of certain writings mentioned in the statute, with an intent to defraud, constitutes the offense of forgery under the statute. At common law the writing must have a tendency to injure. That (525) tendency must be apparent to the court; it may be apparent upon the face of the transaction, or it may be made so by the aid of additional facts. To forge a deed is an instance of the kind first mentioned. Its tendency to injure is apparent; it requires the statement of no additional fact to make that appear. An instance of the latter is where I make a deed to A, and afterwards one to B, for the same property, and antedate the latter deed so as to overreach the date of the former. The making the former deed is part of the offense at common law, and must be shown, otherwise the tendency of the latter deed to injure does not appear. But perhaps this case affords a better illustration of the principle. The defendant's altering an order drawn by himself on Avery, in favor of Ainsworth, does not, upon its face, import an injury, neither in its tendency does it injure any one. It may be a proper and necessary act; but to alter it alter it has been circulated and then to alter it so as to make it different from the truth, as in this case, and thereby to entitle himself to a double credit for its amount, one upon giving the order to Avery and another upon Ainsworth's receiving the money from him, shows that the alteration tends to the injury of Ainsworth; and if these be the facts, they should have been averred in the indictment and proved on the trial. Whether they were proved before the jury we do not know, and it is entirely unimportant whether they were or not — they are not charged. The indictment is therefore defective, for in them, in connection with the alteration of the order, the criminality consists. Without them the act is harmless. With them it is highly criminal. I think, therefore, that the judgment should be arrested.

PER CURIAM. Judgment reversed.

Cited: S. v. Thorn, 66 N.C. 645; S. v. Weaver, 94 N.C. 838.