State v. Jestes, 185 N.C. 735 (1923)

May 16, 1923 · Supreme Court of North Carolina
185 N.C. 735


(Filed 16 May, 1923.)

1. Appeal and Error — Evidence—Subsequent Admission.

Tbe admission of evidence upon tbe trial tbat bad formerly been excluded does not constitute reversible error for its prior exclusion.

2. Appeal and Error — Evidence—Questions and Answers — Record.

Tbe expected answers to questions excepted to must appear of record on appeal, in order tbat tbe court may pass upon tbe question of error in tbe exclusion of tbe questions.

3. Appeal and Error — Objections and Exceptions — Instructions—Contentions — W aiver — Record.

Exception to tbe judge’s statement to tbe jury of appellant’s contentions will not be considered on appeal when for tbe first time noted in bis assignments of error, for tben they are deemed as waived by bim.

4. Criminal Laws — Bills and Notes — Alteration—Forgery—Instructions —Presumptions—Evidence—Rebuttal.

Where there is evidence tbat tbe one in whose possession a promissory note bad been given, forged tbe payee’s name thereon and bad it discounted at tbe bank, and used tbe money thus obtained, an instruction tbat if tbe jury so found tbe facts beyond a reasonable doubt, it would raise a presumption of tbe defendant’s guilt in forging tbe name of tbe endorser and altering tbe note, which tbe defendant was required to rebut, is not erroneous. 8. v. Patterson, 129 N. C., 556, cited and applied.

Appeal by defendant from McElroy, Jat Fall Term, 1922, of Aveey.

Tbe following is a brief statement of tbe material facts: Tbe defendant sold a tract of land to bis brother, J. ~W. Jestes, for $1,200, and bought a tract from ~W. H. Byrd for $2,000. Defendant was to pay Byrd $1,000 cash, and was to secure tbe balance by a deed of trust on tbe land. Tbe defendant testified be paid this $1,000 as follows: $100 in cash to bind tbe trade, $600 received from bis brother, and a note for $300 dated 27 February, 1920, signed by bis brother, J. W. Jestes, Charlie Coffey, and J. L. Fox, and made payable to W. H. Byrd six months after date. Tbe $600 payment and tbe note were a part of tbe $1,200 due tbe defendant by J. W. Jestes. Tbe defendant contended tbat tbe note for $300 was sent by J. W. Jestes to W. H. Byrd without coming into tbe possession of tbe defendant. Tbe State contended J. W. Jestes gave tbe note to tbe defendant for delivery to Byrd, and tbat instead of delivering tbe note as directed, tbe defendant endorsed Byrd’s name on tbe note and signed bis own name under Byrd’s and bad tbe note discounted at tbe Bank of Banner Elk without Byrd’s knowledge or consent. i

*736The indictment contains two counts. The first charges the defendant with forging the name of Byrd as endorser, and the second with unlawfully altering the note. The defendant was convicted on both counts. Judgment was pronounced, and he appealed.

Attorney-General Manning and Assistant Attorney-General Nash for the State.

G. A. Love and Harrison Baird for defendant.

Adams, J.

A close investigation convinces us that there is no error in the record. The first five exceptions relate to the exclusion of evidence, but neither exception can be sustained. In several instances the excluded evidence was afterwards admitted, and in the others it does not definitely appear what the answers would have been. Dickerson v. Dail, 159 N. C., 541; In re Edens, 182 N. C., 398; Snyder v. Asheboro, ibid., 708.

The evidence for the State tended to show that the defendant had altered not only the note in question, but other papers as well, and to his Honor’s statement of the contentions in regard to these changes the defendant excepted. He did not object at the time, but afterwards incorporated the objection in his statement of case on appeal as one of the “errors assigned and to be assigned,” and thereby waived the exception. S. v. Little, 174 N. C., 800; S. v. Merrick, 172 N. C., 870; S. v. Johnson, ibid., 920; S. v. Foster, ibid., 960.

Exception was taken to the following paragraph in his Honor’s charge: “If you are satisfied beyond a reasonable doubt that the endorsement of W. H. Byrd on the $300 note was a forgery, and that the defendant had it in his possession and obtained money from the Bank of Banner Elk on it, then this raises a presumption of the guilt of the defendant, and unless he has rebutted it, you will return a verdict of guilty.”

The exception must be overruled. The instruction is almost of a literal quotation from the decision in S. v. Peterson, 129 N. C., 556, and is supported by S. v. Britt, 14 N. C., 122; S. v. Morgan, 19 N. C., 348; S. v. Lane, 80 N. C., 407.

No error.