State v. Thornburg, 28 N.C. 79, 6 Ired. 79 (1845)

Dec. 1845 · Supreme Court of North Carolina

28 N.C. 79, 6 Ired. 79

THE STATE vs. DANIEL THORNBURG.

Falsely, wittingly and corruptly rubbing out, erasing or obliterating a release or acquittance on the back of a note or bond, or elsewhere, does not, according to the law of North Carolina, amount to the crime of Forgery.

Appeal from the Superior Court of Law of Lincoln Comity, at the'E'all Term, 1845, his honor Judge Pearson presiding.

The defendant was tried upon an indictment for Forgery. Upon the first count in the indictment, he was acquitted. The second count was in the following words,, to-wit: “ And the Jurors, &e. further present, that the said Daniel Thornburg, on the day and year aforesaid, with force and arms, in the- County aforesaid, did purchase of one Henry Wright, and did then and there have in his possession, a certain bond for the payment of money, which said bond is as follows, to-wit: “ $Í8. Against the 25th of December next I promise to pay Henry Wright eighteen dollars for value received of him. June 2d, 1843. C. Lineberger.” On which said bond, at the time the same came into the possession of the said Daniel Thornburg, as aforesaid, to-wit: on the said 10th day of February, tliere was duly entered an acquittance for the sum of eleven dollars. And that the said Daniel Thorn-burg, then and there, wittingly and falsely did commit forgery, by falsely, wittingly and corruptly rubbing out, erasing and obliterating the said acquittance for eleven dollars, with intent to defraud one Caleb Lineberger, against the form of the statute, &c.”

The defendant was convicted upon this count; but on motion, tbe Court arrested the judgment, and from that decision, the Solicitor for the State appealed to the Supreme Court.

Attorney General, for the State.

Guión and Miller, for the defendant.

Daniel, J.

The defendant was convicted on the second count in the indictment. He then made a motion in arrest of judgment; and the motion was sustained. The Solicitor for the State appealed. Forgery is a false making — making mato animo — of a written instrument, for the purpose of fraud and deceit — the word “ making” being considered as including every alteration of, or addition'to, a true instrument. 2 Russell on Crimes, 317. 2 East. P. C. 852, 965. 2 Leach, 785. The charge against the defendant in the second count, is, for falsely, wittingly and corruptly rubbing put, erasing and obliterating an acquittance for eleven dollars, which acquittance had been endorsed on the bond mentioned in the indictment, with an intent to defraud one Caleb Line-berger, the obligor, against the form óf the statute, <fcc. We have no statute, making the act of erasing, rubbing-out, and obliterating an acquittance, forgery. And the intentional destruction of an acquittance^in whatever way, cannot be either a making a written instrument, or the alteration of, or addition to, a truly written instrument, so as to bring the act within the definition of forgery. The judgment was therefore correct, and it must be affirmed.

Per Curiam. Ordered to be certified accordingly.