Opinion
July Term, 1812.
From Edgecombe.
1. Indictment for forgery. The act of 1801, respecting forgery, took effect on 1 April, 1801. The indictment charged that the act was done "against the form of the act of the General Assembly in such case made and provided." Motion in arrest of judgment, "that the indictment did not charge that the crime was committed after 1 April, 1801," overruled.
2. The instrument forged was a bond, purporting to be attested by one A. B. The indictment charged that the defendant "wittingly and willingly did forge and cause to be forged a certain paper-writing, purporting to be a bond, and to be signed by one C. D. with the name of him, the said C. D., and to be sealed with the seal of the said C. D.," but did not charge that the bond purported to be attested by one A. B. Motion to arrest the judgment on this account overruled, for nothing need be averred in the indictment, which is not necessary to constitute the offense charged. It is not necessary that there should be a subscribing witness to a bond; and if there be one, it is not his signature, but the signing, sealing and delivery by the obligor that constitute the instrument a bond.
THIS was an indictment for forgery under the act of 1802. It charged that "Wyatt Ballard, late of the county of Orange, planter, on 12 November, 1803, with force and arms, at (187) the county of Edgecombe, of his own wicked head and imagination, wittingly and falsely did forge and cause to be forged a certain paper-writing, purporting to be a bond, and to be signed by one Thomas Wiggins, with the name of him, the said Thomas Wiggins, and to be sealed with the seal of the said Thomas Wiggins, the tenor of which said false, forged and counterfeited paper-writing purporting to be a bond is as follows:
"On demand, 1 January, 1805, I promise to pay Wyatt Ballard, or his assigns, the full sum of $1,030, the same being for value received, as witness my hand and seal this 12 November, 1803.
THOMAS WIGGINS. (SEAL.)
"Teste: B. LEWIS.
"with intention to defraud the said Thomas Wiggins, against the form of the act of the General Assembly in such case made and provided and against the peace and dignity of the State." The defendant was found guilty, and it was moved that the judgment be arrested, (1) because it is not averred in the indictment that the offense was committed after the act was in force on which the indictment is founded; and (2) that it is not stated that the forged bond purported to be attested by the subscribing witness. The case was sent to this Court.
As to the first reason in arrest, the act was in force from and after 1 April, 1802, and the indictment charges that the offense was committed on 12 November, 1803, against the form of the act. If the offense was committed against the act, it must necessarily have been committed after the (188) act was in force; for if it were not, the defendant could not be guilty of the offense charged against him, and must have been acquitted. As to the second reason in arrest, nothing need be averred which is not necessary to constitute the offense charged in the indictment. It is not necessary there should be a subscribing witness to a bond, and although there be one, it is not his signature, but the signing and sealing by the obligor, that constitute the writing a bond. The indictment avers that the writing set forth purports to be signed and sealed by the obligor, which is all that is necessary to constitute the offense and bring it within the act. And although another averment might have been made with propriety, it does not follow that it ought to have been made. Let the reasons in arrest of judgment be overruled.
Cited: S. v. Newcomb, 126 N.C. 1107.