State v. Shepard

134 S.E.2d 696, 261 N.C. 402, 1964 N.C. LEXIS 484

• Court: Supreme Court of North Carolina
• Decided: March 4, 1964
• Status: Published

Opinion

Higgins, J.

The defendant has abandoned all assignments of error except those which relate to his plea of former jeopardy. He was first placed on trial on indictments each charging (1) that he forged a check issued by Rea Construction Company, payable to Charles Y. Norris; and (2) that he uttered the check knowing it to have been forged. At the trial in April the evidence disclosed the checks were genuine but that the defendant had forged the name of the payee. Upon this disclosure the trial judge, of his own motion, quashed the indictments and instructed the Solicitor to send new bills charging forgery of the endorsements and uttering the checks with knowledge of that forgery.

The Solicitor sent new bills as directed. The grand jury returned them. When arraigned, the defendant entered his pleas of former jeopardy. The trial court, in quashing the original bills and in overruling the plea of former jeopardy to the new ones, followed the procedure approved by this Court in State v. Coleman, 253 N.C. 799, 117 S.E. 2d 742.

In Coleman, the first bill of indictment charged that the defendant forged a certain check “and forged endorsement.” The check, but not the endorsement, was set out in the indictment. Three members of this Court were inclined to the view that since the indictment referred to a “forged endorsement,” and the evidence showed the forged endorsement, the original indictment was valid and Coleman’s plea of former jeopardy was good. However, the first indictments against this defendant contained neither the endorsement nor any reference thereto. Hence the basis for the dissents in Coleman is not present on this appeal. (See also, Ch. 94, Session Laws, 1961, now G.S. 14-20, 1963 Cumulative Supplement.)

The decision in State v. Coleman is controlling and disposes of the defendant’s appeal adversely to his contentions.

No error.