State v. Bauguess , 13 N.C. App. 457 ( 1972 )

PARKER, Judge.

The crimes with which defendant was charged were alleged in the bill of indictment to have been committed on 1 June 1970. Warrant for his arrest on these charges was issued on 16 March 1971. He was given a preliminary hearing in the district court on 9 April 1971. The bill of indictment was returned as a true bill and he was brought to trial at the 21 June 1971 session of superior court, which was the first regularly scheduled session of superior court for trial of criminal cases to be held in Wilkes County after defendant’s arrest. Prior to impaneling of the jury, defendant moved to quash the indictment on the grounds he had been denied his constitutional right to a speedy trial. The motion was overruled and in this we find no error.

Before ruling on the motion to quash, the trial judge conducted a voir dire examination of the Chief of Police of North Wilkesboro, who testified that within 30 days after 1 June 1970 he had information which caused him to suspect defendant of uttering the check, but did not then have a witness to identify defendant as the man who did so; that a number of checks had been stolen from the BP Station on Second Street; that he could get no handwriting expert in the State to work on these checks and had had to send them to the F.B.I. in Washington; and that the checks had been gone most of the time, back and forth, to the F.B.I. Laboratory in Washington. Under these circumstances, we hold that defendant failed to show that the delay in issuing the warrant was either deliberately or unnecessarily caused by the prosecution or that the length of the delay was such as to create a reasonable possibility of prejudice to defendant. “The constitutional guarantee does not outlaw good-faith delays which are reasonably necessary for the State to prepare and present its case.” State v. Johnson, 275 N.C. 264, 167 S.E. 2d 274.

There was also no error in submitting this case to the jury under both counts in the bill of indictment. Insofar as the first count is concerned, three elements are necessary to constitute the offense of forgery: (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. State v. Greenlee, 272 N.C. 651, 159 S.E. 2d 22; State v. Brown, 9 N.C. App. 498, 176 S.E. 2d 881. The State’s evidence here tended to show not only that C. A. Swofford, the purported signer of the cheek in question, had no authority to sign a check on the account upon which it was drawn, but that, indeed, he was a fictitious person. “If the name signed to a negotiable instrument, or other instrument requiring a signature, is fictitious, of necessity, the name must have been affixed by one without authority, and if a person signs a fictitious name to such instrument with the purpose and intent to defraud — the instrument being sufficient in form to import legal liability — an indictable forgery is committed.” State v. Phillips, 256 N.C. 445, 124 S.E. 2d 146; accord, State v. Dixon, 185 N.C. 727, 117 S.E. 170; Annot., 49 A.L.R. 2d 852. In State v. Phillips, supra, Moore, J., speaking for the Court, quoted with approval from 37 C.J.S., Forgery, Section 82, p. 94, as follows:

“Evidence that the name signed to an instrument is that of a fictitious person is admissible to prove that the instrument is a forgery, and any circumstantial evidence tending to prove that the name is that of a fictitious person is likewise admissible. Thus persons so situated that they would probably know the signer if he existed may testify that they do not know of any such person. Similarly, evidence as to the result of inquiries made for persons whose names appear on an instrument is admissible to show their nonexistence, although the person making the inquiries may have been unacquainted with the place, or the search may not have been extensive.”

Thus, here the evidence would support a jury finding that when someone affixed the signature, C. A. Swofford, to the check, a forgery was committed. There was direct evidence that the defendant was the person who was in possession of and actually uttered the check, obtaining value therefor. This evidence was sufficient to support a jury finding that defendant had himself forged the check. State v. Welch, 266 N.C. 291, 145 S.E. 2d 902; 36 Am. Jur. 2d, Forgery, Section 44, p. 706.

We have examined appellant’s remaining assignments of error and find no error prejudicial to defendant.

No error.

Judges Campbell and Morris concur.