State v. Peterson.

40 S.E. 9, 129 N.C. 556, 1901 N.C. LEXIS 117

• Court: Supreme Court of North Carolina
• Decided: December 3, 1901
• Status: Published

Opinion

Clark, J.

In an indictment for forgery, it is not necessary to allege loss of tbe instrument in tbe indictment, and in tbe absence of tbe instrument, only its substance need be charged. 2 McClain Criminal Law, sec. 805; Mead v. State, 53 N. J., 601; People v. Badgely, 16 Wend., 53; State v. Callahan, 124 Ind., 364, tbongb it would be better practice in sucb cases to aver tbe loss of tbe instrument, or that it is in defendant’s possession. Tbe instrument being shown to be lost, tbe witness stated be could not give tbe entire contents of tbe note verbatim, but could give its substance. This was competent. State v. Lowry, 42 W. Va., 205; Com. v. Snell, 3 Mass., 82; 13 Am. and Eng. Enc. (2d Ed.), 111.

Tbe Court properly refused to charge that there was no evidence to go to tbe jury. Even if there bad been no other evidence, tbe defendant being in possession of tbe forged instrument attempting to utter, pass or deliver it, was evidence, and tbe Court charged, at request of defendant, that tbe jury should not convict unless they were satisfied beyond a reasonable doubt that tbe defendant did so attempt for personal gain or a fraudulent purpose.

Tbe evidence did not authorize tbe Court to give tbe instruction asted as to drunkenness. Voluntary drunkenness is never an excuse for crime.. State v. Kale, 124 N. C., and eases cited at page 819; Howard v. State, 36 S. W., 475.

Tbe absence of a revenue stamp has no bearing upon tbe inquiry whether the defendant forged tbe paper-writing, though not decorated with sucb stamp. 1 Randolph Com. Paper, sec. 213; State v. Hill, 30 Wis., 416; Thomas v. State, (Tex. Cr. App.), 46 L. R. A., 454, 76 Am. St. Rep., 240. And sucb is tbe law in England also. Hawkeswood’s case, 2 East P. C., 955.

The defendant excepted to tbe charge because of tbe following instructions: “(1) Where one is found in tbe possession of a forged instrument and is endeavoring to obtain money or advances upon it, this raises a presumption that defendant either forged or consented to the forging such instrument, and nothing else appearing the person would be presumed to be guilty.” In this there was no error. State v. Morgan, 19 N. C., 348; State v. Britt, 14 N. C., 122; State v. Lane, 80 N. C., 407; State v. Allen, 116 N. C., 548. “(2) If you are satisfied beyond a reasonable doubt that the paper (in this case the note) was a forgery, and that the defendant had it in his possession and tried to obtain money from Crowell or Shuford or the bank upon it, then this raises •a presumption of guilt, and, unless he has rebutted it, you will return a verdict of guilty.” This is also warranted by the precedents. 2 McClain Or. Law, sec. 809, and cases •there cited.

No Error.