State v. Morehead
State v. Morehead
Opinion of the Court
Defendant’s first assignment of error is to the failure of the court to allow his motion to dismiss the indictments on the counts of uttering forged checks on the ground that each indictment fails to allege that defendant uttered the check with the intent to defraud another. He contends this essential element is missing
As the four indictments are substantially identical, we excerpt and examine the challenged part of one as being dispositive of the issue. A copy of the front and back of each check in the amount of $175.58 was attached to the indictment. All checks were dated 16 October 1980 and drawn on the account of Eastside Grocery at First Citizens Bank & Trust Company. The sample indictment follows:
“. . . [W]ittingly and unlawfully and feloniously did utter and publish as true a certain false, forged and counterfeited bank check, to which said bank check had been falsely forged the name of Faith Cooper as Payee, and the name of Lee V. Moore, Jr., as Maker to said bank check so that said bank check appeared to be genuine, and which said forged bank check is as follows that is to say: As per copy of check, marked Exhibit A, attached hereto and made a part hereof as though fully set out herein, with intent to defraud _he_, the said Robert Elimu Morehead at the time _he_ so uttered and published the said false, forged and counterfeited bank check then and there well knowing the same to be false, forged and counterfeited against the form of the statute in such case made and provided, and against the peace and dignity of the State.”
In State v. Hill, supra, at 249-50, 229 S.E. 2d at 811, the indictment reads:
“ . . [W]ittingly unlawfully and feloniously did utter and publish as true a certain false, forged, and counterfeit check, which said false, forged and counterfeit check is as follows: A check drawn upon the account of Craven Steel Company, Inc., Route #11, Box 430, Greensboro, North Carolina, dated October 29, 1974, check #2394 payable to the order of Billy G. Hill in the amount of $123.33, and drawn upon The Northwestern Bank, Greensboro, North Carolina, upon which the signature of Betty Bush had been forged with the intent to defraud, he the said Billy Gray Hill, at the time he so uttered and published the said false, forged, and counterfeit check, then and there well knowing the same to be false, forged and counterfeit.’ ”
The second assignment of error challenges the correctness of the jury instruction concerning aiding and abetting. Defendant contends he was not present when a codefendant passed the checks and that it was error for the trial court to fail to instruct the jury that they must find that he was actually or constructively present when the checks were passed.
The group planning of the offense took place in the defendant’s apartment. The checks were forged by others in the apartment with the defendant’s knowledge, and preparation for cashing the checks began there. Aikens, Leath, Phillips and the defendant left the apartment and traveled by automobile to four business establishments. Aikens went alone into each business. While Aikens was cashing each check, the others remained outside in the automobile, with defendant in the back seat. The auto was parked close to each establishment: J. C. Penney’s, directly in front; Food Town, within 25 feet; Northgate Inn, within 35-40 feet;
When the group left the house, the checks had not been signed. After all were in the automobile, the checks were given to Aikens from someone in the back seat. During the time, and before going to Northgate Inn, the defendant suggested that “we try motels and hotels, because he said if you rent a room for more than one day, they will always cash the check.” When this suggestion was made, Leath had been dropped off, and only Aikens, Phillips and defendant were in the car.
After full comparison and examination of the defendant’s request for special instructions on aiding and abetting and of that portion of the charge on this same subject, we find this assignment of error to be without merit and that it would serve no purpose to quote from the requested instruction and from the charge. While the trial judge did not use the exact language as phrased by defendant, the judge correctly covered the substantive law and applied it to the evidence in his charge. State v. Sledge, 297 N.C. 227, 234-35, 254 S.E. 2d 579, 584-85 (1979). Although defendant’s brief says: “The crime of an aiding and abetting (principle in the second degree) is a lesser included offense of the principal felony and a defendant may be convicted as such in an indictment charging the principal offense,” (emphasis added), we point out that “aiding and abetting” is not a separate crime, is not a lesser offense, and does not require a separate issue. Where one aids and abets another, he is guilty as a principal. State v. Holloway and State v. Jones, 7 N.C. App. 147, 171 S.E. 2d 475 (1970). The subject of the presence of defendant and his participation with Aikens in the crime in the role of one aiding and abetting was amply covered by the trial judge. Where supported by the evidence, the defendant’s requested instructions were given.
Defendant’s reliance upon State v. Glaze, 37 N.C. App. 155, 245 S.E. 2d 575 (1978), is not well founded. While Glaze relied upon State v. Lyles, 19 N.C. App. 632, 635, 199 S.E. 2d 699, 701, cert. denied, 284 N.C. 426, 200 S.E. 2d 662 (1973), for the proposition that “[i]n order to determine whether a defendant is present, the court must determine whether ‘he is near enough to render assistance if need be and to encourage the actual perpetration of the felony,’ ” the reported facts of Glaze differ substantially from
The fourth assignment of error alleges that the trial court erred in denying defendant’s motion to dismiss for lack of a speedy trial, G.S. 15A-701 et seq. We disagree.
While the date of offenses was 16 October 1980, the defendant was never arrested until 15 October 1981. Jury trial began 17 March 1982. One Hundred Fifty-three (153) days elapsed.
Counsel does not contest the exclusion of 25 January 1982 through 22 February 1982 because he obtained a continuance to prepare for trial. This is 28 days.
On 16 October 1981, the day after his arrest, defendant obtained court-appointed counsel, a public defender. On 4 January 1982, defendant, by letter to Superior Court Judge Charles Kivett, requested that the public defender be discharged for reasons stated. On 5 January 1982 Judge Kivett ordered a hearing on the defendant’s request, which was heard by Judge W. Douglas Albright on 8 January 1982. At that hearing the public defender joined in the motion of the district attorney to continue the trial of these cases retroactive from 16 October 1981 until 25 January 1982. The defendant had urged the public defender to get the cases tried as soon as possible. Finding a conflict of interest between counsel and defendant, Judge Albright discharged the public defender, appointed new counsel, and signed an order continuing the trial from 16 October 1981 through 25 January 1982. The time of 4 days from defendant’s request for discharge of his attorney of 4 January 1982 through 8 January 1982, the date of the order, is clearly excludable. State v. Rogers, 49 N.C.
We now turn to defendant’s third assignment of error. He argues that it was error for the trial court to fail to dismiss the action where the indictments had previously been dismissed with leave by the State and were subsequently reinstated without further action by the grand jury and without adhering to the requirements of G.S. 15A-932.
The facts are that defendant was indicted on 5 January 1981. The defendant could not be found, and on 27 April 1981 the State took a voluntary dismissal with leave. Defendant was not arrested until 15 October 1981. On 4 January 1982 the indictments were reinstated.
We think defendant’s argument is amply answered in State v. Reekes, 59 N.C. App. 672, 297 S.E. 2d 763 (1982). In Reekes the voluntary dismissal with leave was taken on 1 June 1981 for defendant’s failure to appear. His arrest was on 29 August 1981. The reinstatement did not occur until 14 December 1981 when the case was placed on the calendar. The Reekes court stated: “Once the prosecutor entered a dismissal with leave for nonappearance of the defendant pursuant to G.S. 15A-932, G.S. 15A-701(b)(11) controlled and the speedy trial clock did not resume running against the State until the proceedings were reinstituted against the defendant on 14 December 1981.” Id. at 676, 297 S.E. 2d at 766. The time of reinstatement was also found to be “reasonable.”
The final assignment of error alleges that the trial court erred in denying the motion to suppress evidence. In the suppression hearing the facts disclosed that a search warrant was issued to search for items taken in a breaking and entering offense at the Eastside Grocery. During the search a manual typewriter and a piece of paper with defendant’s name on it in plain view were
We hold that the defendant has had a fair trial free from prejudicial error.
No error.
. We share the following sagacity from the State’s brief:
“As for defendant’s argument concerning the number of sentences, words, commas and colons in the indictments as proof of vagueness, it is respectfully submitted that exclusive of description, the usual fee simple warranty deed is prepared as a single sentence containing in excess of 230 words, 18 commas, 4 semi-colons and 2 colons. That deed is historically cited as a model of clarity and expression.”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.