Summary
In State v. Gherkin, 29 N.C. 206, the defendant, who was co-maker of a note, was charged with falsely signing the name of a witness.
Summary of this case from State v. BrownOpinion
(June Term, 1847.)
Falsely putting a witness's name to a bond which is not required to have a subscribing witness does not vitiate the bond and is not forgery.
APPEAL from WASHINGTON Spring Term, 1847; Caldwell, J.
Forgery. The indictment contained two counts, but on the second the solicitor for the State entered a nolle prosequi.
The first count was as follows:
"WASHINGTON COUNTY, to wit:
"The jurors for the State upon their oath present, that heretofore, to wit, on 22 February, 1841, Sally Allen and James Gherkin signed and sealed their bond obligatory, payable to Joseph B. Griffin, (207) which said bond obligatory is in the words and figures following, that is to say:
$28. On or before 1 January, 1843, we promise to pay Joseph B. Griffin, or order, $28, with interest from date, it being due for value received in hand, this 28 February, 1841. Witness, SALLY ALLEN. [SEAL] JAMES GHERKIN. [SEAL]
"And the jurors aforesaid, upon their oath aforesaid, do further present, that the said James Gherkin, with force and arms in the said county, before the delivery of the said bond obligatory to the said Joseph B. Griffin, to wit, on the day and year aforesaid, did of his own head and imagination and by false conspiracy and fraud, feloniously, knowingly, and falsely make and forge, and did wittingly, knowingly, and falsely assent to the forging and making the name of one George Stubbs as a subscribing witness to the said bond obligatory so payable to the said Joseph B. Griffin, which said bond obligatory was afterwards, to wit, on the day and year aforesaid, delivered to the said Joseph B. Griffin with intent to defraud the said Joseph B. Griffin, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State."
The defendant's counsel moved to quash the bill of indictment because the offense therein charged is not indictable. Judgment of the court that the same be quashed, whereupon the solicitor appealed to the Supreme Court.
Attorney-General for the State.
(209) Heath for defendant.
A subscribing witness is not material to the due making of a bond. The putting of the name of Stubbs to the instrument as a subscribing witness did not vitiate the bond, after it was subsequently delivered by the obligors to the obligee. The bond could have been established (if denied by the obligors) by proof of their handwriting. Blackwell v. Lane, 20 N.C. 245. It was not an alteration in a material part of a true document by which the obligee was or could be defrauded of the money mentioned in the face of the bond. We think the judgment was right.
PER CURIAM. Affirmed.
(210)