State v. Shipman , 77 N.C. App. 650 ( 1985 )

PHILLIPS, Judge.

John Oliver Bowman, whose bank account was falsely drawn on, testified in the trial and defendant does not contend that the State’s evidence does not support the eight convictions based on counterfeiting and passing checks purportedly signed by Bowman. Tommy Jones, though, the purported payee and endorser of the counterfeit checks, did not testify; and defendant contends that the State’s failure to prove that Jones did not authorize him to endorse the checks requires the dismissal of the other eight counts based on falsely endorsing Tommy Jones’ name. If the evidence showed that the Tommy Jones named as payee on the checks is a real person and the circumstances were not as they are defendant’s point would be well taken. Because, nothing else appearing, to convict a defendant of forgery it is not enough to show that he signed another’s name to an instrument and passed it as genuine; it must also be shown that the instrument was false, which usually requires proof that the person who did the signing had no authority to do so. State v. Dixon, 185 N.C. 727, 117 S.E. 170 (1923). “[I]f the purported maker is a real person and actually exists, the State is required to show not only that the signature in question is not genuine, but was made by defendant without authority.” State v. Phillips, 256 N.C. 445, 448, 124 S.E. 2d 146, 148 (1962). This is because the law generally presumes that one signing another’s name has authority to do so. 37 C.J.S. Forgery Sec. 80 (1943).

But, of course, as common sense and logic indicate and State v. Phillips, supra makes plain, when the name affixed to or put in an instrument is fictitious, a lack of authority to sign that name need not be shown, because authority could not have been given. And in this case, contrary to defendant’s contention, the evidence does not show that Tommy Jones is a real person. Defendant neither testified nor presented evidence and the only indication in the record that Tommy Jones is an actual person is a self-serving statement defendant made to the law officer that Jones gave him his identification card and authorized him to use his name; under the circumstances neither the State nor the jury were obliged to accept that statement as being true. Defendant falsely told the bank he was Tommy Jones, gave them a false address, and falsely told the officer that Bowman gave him permission to use his name; neither Bowman nor the bank knew any real Tommy Jones, and the Maryland police told the Fayetteville officers that Tommy Jones was in fact the defendant. Viewed not in the light most favorable to the State, but simply in context, the State’s evidence clearly shows that Tommy Jones was but a creature of defendant’s fertile and thievish imagination; and the contention that the State’s case must fail because it was not shown that Jones did not authorize the endorsements is absurd. It is fundamental in the trial of lawsuits that litigants, including the State, are free to follow their own theories if legally sound and supportable by evidence; and they are never obliged to lose themselves on the false trails laid down by their adversaries. Under the circumstances of this case, no presumption could conceivably arise that Tommy Jones, even if real, authorized defendant to endorse the checks; because defendant, himself, drew the checks in Jones’ favor knowing that they were counterfeit. Thus, the only “authority” Jones could have given him would have been to complete the swindle by signing his name and thus commit a criminal act — a power no person can convey to another.

Defendant also assigned as error the trial court’s admission of testimony as to the circumstances of his arrest. The officer testified that he arrested defendant at First Citizens Bank and that defendant had on his person a First Citizens Bank savings deposit book on an account that he had opened there in the name of John Bowman. Defendant’s general objection to this evidence was properly overruled. Though the evidence does tend to show, as defendant argues, that he had committed still other crimes, it is nevertheless competent to establish defendant’s guilty knowledge and criminal intent or plan in this case. Rule 404, N.C. Rules of Evidence. Defendant’s other assignment of error, which merits no discussion, is also overruled.

No error.

Judges Wells and Whichard concur.