#### STATE v. A. W. GEORGE.

(Filed 19 November, 1924.)

Banks and Banking — Officers—False Entries — Criminal Law — Evidence— Questions for Jury — Statutes.

Upon a trial of an officer of a bank for willfully and fraudulently making a false entry on its books, etc. (chapter 4, section 83, Public Laws 1921), evidence is sufficient to sustain a verdict of conviction which tends to show that the officer charged therewith made out a certificate of deposit for about $2,000, and the stub was made out in his own handwriting, leaving a blank for the amount, which was filled out by another, in pencil, for $20, and that the officer and a subordinate were in exclusive control of the bank at the time, permitting a reasonable inference that he was aware of the false entry on the stub of the amount of the certificate.

Appeal by defendant from Lyon, J., at April Term, 1924, of Subry.

Criminal prosecution, tried upon an indictment charging the defendant, an officer of tbe Farmers and Merchants Bank of Elkin, with willfully and feloniously making a false entry in the books of said bank, with intent to defraud or injure the corporation and to deceive its officers and agents or other persons, in violation of chapter 4, section 83, Public Laws 1921.

From an adverse verdict, and judgment pronounced thereon, the defendant appeals, assigning errors.

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

J. H. Folger for defendant.

Stacy, J.

The indictment contains but a single count, and this relates to certificate of deposit No. 1781, for $2,060, issued 10 April, 1921, and the stub of said certificate of deposit, showing only $20. The alleged false entry consists - in the erroneous amount of “$20” appearing on the stub, whereas in truth and in fact the certificate of deposit was for $2,060, and the same amount should have been shown on the stub.

Defendant concedes that there is ample evidence on the record to show other false entries made by him during the years 1919 and 1920, and the competency of this evidence is not questioned, as it was offered and admitted only as tending to establish the necessary element of intent, but he stressfully contends there is no sufficient evidence in the case to show that the alleged false entry of $20, as charged in the bill of indictment, was made by him or entered on the stub in question with his *612knowledge and consent or at Ms direction. Exception is taken to tbe court's refusal to instruct tbe jury to tbis effect in response to a prayer of tbe defendant.

Tbe State concedes that tbe amount shown on tbe stub is not in tbe bandwriting of tbe defendant; but it is established that tbe defendant made out tbe certificate of deposit, No. 1781, and filled in tbe stub, in ink, except tbe $20 on tbe stub, which is written in pencil. It is in evidence that tbe defendant was president and cashier of tbe bank at tbis time; that tbe books and records were under bis control; that Mr. Bodenheimer, assistant cashier, was away on account of sickness, and that tbe defendant and Miss Marjorie Chatham, who held tbe position of bookkeeper, were tbe only persons in tbe bank who knew or could have known tbe correct amount to be entered on tbe stub, and there is no evidence that Miss Chatham bad any personal knowledge of tbe transaction. From these facts and circumstances tbe State contends that if tbe entry in question was not made-by tbe defendant, it must have been entered on tbe stub with bis knowledge and consent and at bis direction. He alone of those in tbe bank could have furnished the information. Upon tbis disputed question of fact, tbe jury, under a clear and pointed charge, directed to tbe issue, found that tbe entry was false and that it was entered on tbe stub in question with tbe knowledge and consent of tbe defendant or at bis direction, and that it was done with a felonious intent on tbe part of tbe defendant to defraud or injure tbe bank and to deceive its officers and agents or other persons.

Tbe trial resulted in a conviction of tbe defendant. We are unable to see any error in tbe particulars assigned. Tbe prayer for a directed verdict of acquittal on tbe evidence was properly refused.

Tbis position is not at variance with tbe rule, universally observed in tbe administration of tbe criminal law, that a defendant must be convicted, if convicted at all, of tbe particular offense charged in tbe bill of indictment. S. v. Wilkerson, 164 N. C., 444. It has been repeated so often as to become an axiom that “proof without allegation is as unavailing as allegation without proof.” S. v. Snipes, 185 N. C., 743; S. v. McWhirter, 141 N. C., 809; Dixon v. Davis, 184 N. C., p. 209; Green v. Biggs, 167 N. C., p. 422; McCoy v. R. R., 142 N. C., p. 387. But here tbe defendant has been convicted of tbe particular offense charged in tbe bill of indictment. Tbe evidence, it is true, may not be as direct and positive as it would have been on other counts, bad tbe State seen fit to incorporate them in tbe bill, but there is ample evidence on tbe record to afford a permissible inference of all tbe elements of tbe crime as charged and to support tbe verdict.

Tbe remaining exceptions are untenable. Tbe validity of tbe trial must be sustained.

No error.