State v. . Keeter

80 N.C. 472

• Court: Supreme Court of North Carolina
• Decided: January 5, 1879
• Status: Published

Opinion

Sjiith, C. J.

The defendants are charged in the first count with the forging, and in the second count with uttering and publishing the forged instrument described in the bill, and upon their trial were both found guilty. The record shows that the verdict was setasideand from this order the solicitor appealed. The case accompanying the record states that the judgment was arrested and from this the appeal is taken for the state. Where there is a repugnancy between the record and the case stated, the record will control. Farmer v. Willard, 75 N. C., 401.

As there has been no final adjudication, an appeal does not lie at the instance of either party. State v. Wiseman, 68 N. C., 203, and other cases therein cited.

'As the exceptions taken to the sufficiency and form of the indictment must be again met upon another trial, we will dispose of them now :—

1. The form of the first count follows approved precedents, 3 Chit. Cr. Law, ch. 15, p. 1,049, and is not obnoxious to the imputation of duplicity.

2. There is no misjoinder, and the propriety of uniting the two counts is manifest from the proofs in the case.

3. The omission of any qualifying words after the figures in the forged order as set out in the indictment is not fatal to the indictment.

If the order was genuine, the omission of the word would not render it invalid, nor will it take away the criminality of the act of forging or uttering the instrument in the same form. Stevens v. Smith, 4 Dev., 292.

Per Curiam. Appeal dismissed.