State v. Walston

312 S.E.2d 676, 67 N.C. App. 110, 1984 N.C. App. LEXIS 2997
CourtCourt of Appeals of North Carolina
DecidedMarch 6, 1984
DocketNo. 836SC860
StatusPublished
Cited by1 cases

This text of 312 S.E.2d 676 (State v. Walston) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Walston, 312 S.E.2d 676, 67 N.C. App. 110, 1984 N.C. App. LEXIS 2997 (N.C. Ct. App. 1984).

Opinion

BRASWELL, Judge.

Defendant was indicted, tried, and convicted on five charges of forgery and uttering, and one charge of obtaining property by false pretenses. He was sentenced to a total of 11 years in prison. The issues on appeal concern the denial of his motion to sequester the State’s identification witnesses, the denial of his motion to dismiss the charges, the trial court’s failure to instruct on the necessity of transfer of title as an element of obtaining property by false pretenses, and the sufficiency of the indictment charging defendant with obtaining property by false pretenses.

The State’s evidence tends to show that on 21 and 23 February 1983, a man, identified as defendant, went into five businesses in Roanoke Rapids, and made purchases by presenting and endorsing checks made payable to Johnny Streeter, drawn on the account of Tau Valley Estates in Rocky Mount, and signed by Nell Byrd. In each instance but one, defendant presented a North Carolina driver’s license with the name and photograph of Johnny Streeter on it as identification.

On 21 February 1983, defendant also went to Pruden’s Office Equipment in Roanoke Rapids. There he again represented himself to be Johnny Streeter. He paid the manager $5.00 to rent a manual typewriter for an hour. Defendant took the typewriter and never returned it.

[112]*112Johnny Streeter testified that he had lost his driver’s license, that he did not know defendant, and that he had never given defendant permission to use his name. Nell Byrd, resident manager of Tau Valley Estates, testified that thirty-four checks were missing from the Tau Valley Estates’ checkbook. Ms. Byrd further stated that Tau Valley Estates never had a tenant named Johnny Streeter, and that she had never signed the checks or given anyone permission to sign the checks for her.

Defendant presented evidence tending to show the lack of resemblance between the defendant and the photograph on the driver’s license.

Defendant’s first argument is that the trial court erred in denying his motion to sequester six of the State’s witnesses because their identification of the defendant was crucial. It is interesting to note that there were six totally separate identifications involved, and not six persons viewing the defendant in any type lineup or location which was common to all or suggestive by the presence of all. A motion to sequester witnesses is addressed to the discretion of the trial judge and the trial court’s ruling denying the motion will not be disturbed absent a showing of an abuse of discretion. State v. Woods, 307 N.C. 213, 220, 297 S.E. 2d 574, 579 (1982). No abuse of discretion has been shown.

Defendant next assigns as error the trial court’s allowing the State to question each of its identification witnesses whether he or she had seen the defendant on a certain day. Defendant argues that these leading questions were unduly suggestive.

An exception to leading questions will not be sustained when the testimony is competent unless the defendant can show an abuse of discretion or that he was prejudiced by the court’s allowing the leading question. State v. Smith, 291 N.C. 505, 231 S.E. 2d 663 (1977). The testimony identifying defendant was competent and relevant. The questions did not connect defendant to the passing of the checks to the witnesses, but merely asked the witnesses whether they had seen defendant that day. The questions were, therefore, not unduly suggestive. We conclude that defendant has failed to show an abuse of discretion or that he was prejudiced by the admission of the testimony. We note that although defendant made only one objection on the ground of leading, it was not followed by a motion to strike. To the other six [113]*113exceptions that appear in the record as to alleged leading questions, the defendant failed to object at trial and has thereby waived his right to take an exception on appeal. See State v. Oliver, 309 N.C. 326, 333, 307 S.E. 2d 304, 310-11 (1983).

Defendant’s third argument is that the trial court erred in denying his motions to dismiss the forgery and uttering charges because there was no evidence that defendant knew that the checks were forged. This contention is without merit.

“In testing the sufficiency of the evidence to sustain a conviction and to withstand a motion to dismiss, the reviewing court must determine whether there is substantial evidence of each essential element of the offense and substantial evidence that the defendant was the perpetrator of the offense.” State v. Smith, 307 N.C. 516, 518, 299 S.E. 2d 431, 434 (1983). All the evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference to be derived from the evidence. State v. Calloway, 305 N.C. 747, 291 S.E. 2d 622 (1982).

Taken in the light most favorable to the State, the evidence was sufficient to show the offer of a forged check to another, with knowledge of the falsity of the instrument, with the intent to defraud or injure another. State v. Hill, 31 N.C. App. 248, 229 S.E. 2d 810 (1976). The mere offer of the false instrument with fraudulent intent constituted an uttering or publishing. State v. Greenlee, 272 N.C. 651, 159 S.E. 2d 22 (1968). Moreover, there is a presumption that one in possession of a forged instrument who attempts to obtain money or goods with a forged instrument either forged or consented to the forging of the instrument. See State v. Roberts, 51 N.C. App. 221, 275 S.E. 2d 536, review denied, 303 N.C. 318, 281 S.E. 2d 657 (1981); State v. Prince, 49 N.C. App. 145, 270 S.E. 2d 521 (1980).

Defendant next contends that the trial court erred by refusing to instruct the jury that transfer of title is a requirement for the offense of obtaining property by false pretenses.

At common law, a fine distinction was made between the crimes of obtaining property by false pretenses and larceny by trick which revolved around whether the victim was induced to part with title and possession, or possession only, by the accused’s false pretense or deception. If the accused deceived the victim into [114]*114relinquishing possession of the property, the crime was larceny by trick. 3 Wharton’s Criminal Law § 355 (14th ed. 1980). If the victim was induced to relinquish title to the property by the deception, the crime was obtaining property by false pretenses. Id. at § 441. To further complicate matters, if the defendant, having lawful possession of the property, wrongfully misappropriated or converted the property to his own use with the intent to permanently deprive, the crime was embezzlement. Id. at § 355.

The distinction between larceny and obtaining property by false pretenses has been abolished by statute in several jurisdictions. 32 Am. Jur. 2d False Pretenses § 4 (1982). Several states have held that it is not necessary to acquire title or ownership to commit the offense of obtaining property by false pretenses and hold that “obtaining” merely means securing possession. Id. at § 36.

In North Carolina, the crime of obtaining property by false pretenses is codified at G.S. 14-100, which provides in pertinent part:

§ 14-100. Obtaining property by false pretenses.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Reid v. WARDEN, CENT. PRISON, RALEIGH, NC
708 F. Supp. 730 (W.D. North Carolina, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
312 S.E.2d 676, 67 N.C. App. 110, 1984 N.C. App. LEXIS 2997, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-walston-ncctapp-1984.