{ "id": 8561290, "name": "STATE OF NORTH CAROLINA v. DOUGLAS McALLISTER", "name_abbreviation": "State v. McAllister", "decision_date": "1975-05-06", "docket_number": "No. 62", "first_page": "178", "last_page": "191", "citations": [ { "type": "official", "cite": "287 N.C. 178" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 3, "year": 1966, "opinion_index": -1, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "208 S.E. 2d 890", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": -1 }, { "cite": "23 N.C. App. 359", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550301 ], "year": 1974, "opinion_index": -1, "case_paths": [ "/nc-app/23/0359-01" ] }, { "cite": "107 N.C. 826", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "20 S.E. 537", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1894, "opinion_index": 0 }, { "cite": "115 N.C. 757", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653002 ], "year": 1894, "opinion_index": 0, "case_paths": [ "/nc/115/0757-01" ] }, { "cite": "104 N.C. 887", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652623 ], "opinion_index": 0, "case_paths": [ "/nc/104/0887-01" ] }, { "cite": "130 S.E. 10", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "190 N.C. 322", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601582 ], "opinion_index": 0, "case_paths": [ "/nc/190/0322-01" ] }, { "cite": "145 S.E. 691", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "196 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626872 ], "opinion_index": 0, "case_paths": [ "/nc/196/0357-01" ] }, { "cite": "155 S.E. 866", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "199 N.C. 771", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615392 ], "opinion_index": 0, "case_paths": [ "/nc/199/0771-01" ] }, { "cite": "42 S.E. 2d 686", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "227 N.C. 475", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626157 ], "opinion_index": 0, "case_paths": [ "/nc/227/0475-01" ] }, { "cite": "45 S.E. 2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "228 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626823 ], "opinion_index": 0, "case_paths": [ "/nc/228/0446-01" ] }, { "cite": "108 S.E. 2d 858", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "opinion_index": 0 }, { "cite": "250 N.C. 514", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624666 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/nc/250/0514-01" ] }, { "cite": "158 S.E. 2d 15", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "272 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572279 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/272/0227-01" ] }, { "cite": "77 S.E. 2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "238 N.C. 325", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8607564 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/238/0325-01" ] }, { "cite": "90 S.E. 2d 390", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "243 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624072 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/nc/243/0277-01" ] }, { "cite": "192 S.E. 2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 240", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564162 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0240-01" ] }, { "cite": "140 S.E. 2d 305", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "263 N.C. 730", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572769 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/263/0730-01" ] }, { "cite": "147 S.E. 2d 548", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "267 N.C. 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558414 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/267/0090-01" ] }, { "cite": "184 S.E. 2d 274", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 527", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571013 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0527-01" ] }, { "cite": "117 S.E. 170", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1923, "opinion_index": 0 }, { "cite": "185 N.C. 727", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657809 ], "year": 1923, "opinion_index": 0, "case_paths": [ "/nc/185/0727-01" ] }, { "cite": "151 S.E. 2d 56", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "268 N.C. 522", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563476 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/268/0522-01" ] }, { "cite": "159 S.E. 2d 22", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "272 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574217 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/272/0651-01" ] }, { "cite": "124 S.E. 2d 146", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1962, "opinion_index": 0 }, { "cite": "256 N.C. 445", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573134 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/256/0445-01" ] }, { "cite": "139 S.E. 2d 736", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "263 N.C. 533", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571759 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/263/0533-01" ] }, { "cite": "171 S.E. 2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560350 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0123-01" ] }, { "cite": "95 S.E. 2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "245 N.C. 344", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610972 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/245/0344-01" ] }, { "cite": "113 S.E. 2d 15", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "252 N.C. 121", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619196 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/252/0121-01" ] }, { "cite": "116 S.E. 2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "253 N.C. 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622810 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/253/0130-01" ] }, { "cite": "144 S.E. 2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "265 N.C. 452", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575677 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/265/0452-01" ] }, { "cite": "89 S.E. 2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "242 N.C. 574", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619195 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/nc/242/0574-01" ] }, { "cite": "169 S.E. 2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559188 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0550-01" ] }, { "cite": "185 S.E. 2d 874", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572031 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0366-01" ] }, { "cite": "213 S.E. 2d 255", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "286 N.C. 698", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570153 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/286/0698-01" ] }, { "cite": "185 S.E. 2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "181" } ], "opinion_index": 0 }, { "cite": "279 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571959 ], "year": 1971, "pin_cites": [ { "page": "675" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0663-01" ] }, { "cite": "170 S.E. 2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "276 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559907 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/276/0001-01" ] }, { "cite": "185 S.E. 2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570781 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0181-01" ] }, { "cite": "201 S.E. 2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "284 N.C. 427", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562720 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/284/0427-01" ] }, { "cite": "203 S.E. 2d 781", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562772 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0181-01" ] }, { "cite": "161 S.E. 2d 581", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "274 N.C. 84", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559426 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/274/0084-01" ] }, { "cite": "188 S.E. 2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "339" } ], "opinion_index": 0 }, { "cite": "281 N.C. 261", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574773 ], "year": 1972, "pin_cites": [ { "page": "264-65" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0261-01" ] }, { "cite": "187 S.E. 2d 98", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 700", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573421 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0700-01" ] }, { "cite": "123 S.E. 2d 483", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "256 N.C. 244", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572182 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/256/0244-01" ] }, { "cite": "51 N.C.L. Rev. 621", "category": "journals:journal", "reporter": "N.C. L. Rev.", "year": 1973, "opinion_index": 0 }, { "cite": "30 L.Ed. 400", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1971, "opinion_index": 0 }, { "cite": "404 U.S. 226", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6171947 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/us/404/0226-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] } ], "analysis": { "cardinality": 1147, "char_count": 31801, "ocr_confidence": 0.594, "pagerank": { "raw": 7.908569084861441e-07, "percentile": 0.9729681151294921 }, "sha256": "d55cffbfd7cd5cd4d88276146657495869d46a62a7cdce9061d4238a9edb6186", "simhash": "1:09278c2ee4573d6e", "word_count": 5441 }, "last_updated": "2023-07-14T16:20:34.133436+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. DOUGLAS McALLISTER" ], "opinions": [ { "text": "MOORE, Justice.\nDefendant brings forward nine assignments of error which we will treat separately.\nDefendant first contends that the court erred in refusing to grant his motion for a free transcript of a separate trial of defendant on similar charges in which nonsuit was entered. In support of this contention, defendant relies on Britt v. North Carolina, 404 U.S. 226, 30 L.Ed. 400, 92 S.Ct. 431 (1971). In Britt, the Supreme Court of the United States reaffirmed its previous holding that a transcript of prior proceedings must be given to an indigent defendant if the court determines the transcript is needed for an effective defense. That Court stated that in making this determination, the trial court should consider the value of the transcript to the defendant in connection with the trial for which it is sought and the availability of alternative devices that would fulfill the same function as a transcript. In applying those rules to the facts in Britt, the Supreme Court held that Britt\u2019s attorney could have obtained the information needed by simply making a request to the court reporter. The Court therefore held that under the facts in Britt, there was no showing of need and the denial of a free transcript was not prejudicial error.\nAs in Britt, the facts in the present case are important in determining the need of defendant\u2019s counsel for the transcript in preparing his defense. The most important fact is that in the present case the transcript requested was not of a prior proceeding in these cases, but was that of a trial in an entirely separate and distinct case. As in Britt, counsel for defendant in this case also represented him in the separate trial for which he sought to obtain a transcript. Furthermore, there is no indication in the record that defendant\u2019s counsel made any effort to obtain the information which he desired through other methods or that he attempted to procure such information by personally contacting the court reporter as suggested in Britt. Inasmuch as the transcript requested was one of a separate and distinct proceeding rather than a prior proceeding in the present case, and defendant\u2019s attorney did not take \u2022 advantage of any other formal or informal alternative methods for discovering the information sought, we hold that under Britt the denial of his motion was not prejudical error. See 51 N.C.L. Rev. 621 (1973).\nThree cases against defendant for forgery and uttering were called for trial. The State moved to consolidate these cases. Defendant moved to sever and the court allowed consolidation of two of the cases over defendant\u2019s objection. Defendant assigns this as error.\nThe two checks here involved were both dated September 6, 1973 and made payable to defendant in his assumed name, James D. Jones or James Jones. Both were drawn on the checking account of Frederick A. Crowell in the Union National Bank on numbered checks given to Mr. Crowell by the bank when he opened his account, and both were deposited by defendant in his account .with Central Carolina Bank in the name of James D. Jones, after he endorsed the checks as James Jones. Under these facts, this assignment obviously has no merit. \u201c . . . When a defendant is charged with crimes of the same class and the offenses are not so separate in time or place and not so distinct in circumstances as to render a consolidation unjust and prejudicial, consolidation is authorized in the discretion of the court by G.S. 15-152. State v. White, 256 N.C. 244, 123 S.E. 2d 483 (1962) ; State v. Johnson, 280 N.C. 700, 187 S.E. 2d 98 (1972).\u201d State v. Anderson, 281 N.C. 261, 264-65, 188 S.E. 2d 336, 339 (1972). (G.S. 15-152 was repealed effective 1 July 1975 by Session Laws of 1973, Chapter 1286, Section 26.)\nDefendant next contends that the trial court erred in 'permitting, over defendant\u2019s objection, the State\u2019s witness Detective Parham to testify regarding an out-of-court statement made by defendant to Detective Parham concerning the charges in these two cases.\nBy this assignment, defendant asserts that the warning given by the Durham police regarding his constitutional right to remain silent was insufficient due to the fact that the warning was not given in accordance with Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694, 86 S.Ct. 1602 (1966), and G.S. 7A-451.\nIn State v. Wright, 274 N.C. 84, 161 S.E. 2d 581 (1968), this Court reviewed the exact warning and waiver of counsel given by Detective Parham to defendant in the present case. We there held, after quoting in the opinion the warning given to defendant and the waiver signed by him, that these were sufficient under Miranda. We then overruled the defendant\u2019s objection to the introduction of defendant\u2019s inculpatory statements made by him to the officer of the Durham Police Department.\nAfter voir dire hearing, the court in the present cases made findings of fact based on competent evidence, and concluded that there was no offer of hope, reward, or inducement to the defendant to make a statement; that there was no threat or show of violence to persuade or induce the defendant to make a statement; that the statement made to Detective Parham was made voluntarily, knowingly, and understandingly at a time when defendant was in full understanding of his rights; and that he purposely, freely, knowingly, and voluntarily waived each of those rights. Such conclusions, when supported by competent evidence, are conclusive on appeal. State v. Thompson, 285 N.C. 181, 203 S.E. 2d 781 (1974) ; State v. Crews, 284 N.C. 427, 201 S.E. 2d 840 (1974) ; State v. Frazier, 280 N.C. 181, 185 S.E. 2d 652 (1972) ; State v. Hill, 276 N.C. 1, 170 S.E. 2d 885 (1969). This assignment is overruled.\nBy his next assignment of error defendant contends that the trial court erred in permitting the solicitor, over defendant\u2019s objection, to question him concerning his use of heroin.\nOn cross-examination, defendant testified without objection : \u201cI started going under the name of James Jones approximately in 1969 or 1970. It was because someone was after me. I got the James Jones identification in New York. The medical card is for my medical treatment. When you are on welfare you can take that to any doctor to receive medical treatment.\u201d The solicitor then, over defendant\u2019s objection, asked defendant concerning his use of heroin. Defendant answered that he wasn\u2019t using heroin at the time of his return to North Carolina in July 1973, and that he never considered himself as having a habit.\nAs stated in State v. Williams, 279 N.C. 663, 675, 185 S.E. 2d 174, 181 (1971) : \u201cIt is permissible, for purposes of impeachment, to cross-examine a witness, including the defendant in a criminal case, by asking disparaging questions concerning collateral matters relating to his criminal and degrading conduct. [Citations omitted.] . ...\u201d In this case the questions related to matters within the knowledge of the witness, not to accusations of any kind made by others, and were competent for the purpose of impeachment. See State v. Lowery, 286 N.C. 698, 213 S.E. 2d 255 (1975) ; State v. Gainey, 280 N.C. 366, 185 S.E. 2d 874 (1972); State v. Ross, 275 N.C. 550, 169 S.E. 2d 875 (1969). This assignment is overruled.\nThe trial court, after reviewing some of the evidence, instructed the jury: \u201c . . . I have not recapitulated all of the evidence in this case. I now instruct you that your verdict should be based on your own recollection of all of the testimony and not just the testimony recapitulated by the court.\u201d Defendant contends that by the quoted sentence the trial court is telling the jury that the court\u2019s recollection of the testimony is correct. Although the defendant does not set out what the trial court should have charged, it is noted that prior to the instruction complained of the court also told the jury, \u201c. . . it is your duty to recall all of the evidence as best you can as it relates to each of these cases . . . , \u201d and \u201c . . . [y]our verdict is to be based on your own recollection of the testimony and evidence in each of these cases, not what the District Attorney may have argued to you as the evidence, or the attorney for the defendant, or even the Court, but your verdict should be based on your own recollection of the evidence and testimony in each of these cases.\u201d\nIn State v. Tyson, 242 N.C. 574, 89 S.E. 2d 138 (1955), we approved a similar statement by the trial judge. We hold that this instruction did not constitute expression of opinion but was in strict compliance with G.S. 1-180.\nDefendant further contends, however, that the trial court in recapitulating the evidence misstated the evidence of Eugene Lindsey as to the amount of credits in defendant\u2019s bank account and incorrectly stated a part of Detective Parham\u2019s testimony. Defendant did not at the time request the court to correct those alleged errors.\nGenerally, an inadvertence in recapitulating the evidence must be called to the trial court\u2019s attention in time for correction and a slight inaccuracy in stating the evidence will not be held reversible error when the matter is not called to the court\u2019s attention in apt time to afford opportunity for correction. As stated in State v. Cornelius, 265 N.C. 452, 144 S.E. 2d 203 (1965) : \u201cWe have repeatedly held that an inadvertence ... in recapitulating the evidence must be called to the attention of the court in time for correction. After verdict, the objection comes too late. S. v. Case, 253 N.C. 130, 116 S.E. 2d 429; S. v. Holder, 252 N.C. 121, 113 S.E. 2d 15; S. v. Adams, 245 N.C. 344, 95 S.E. 2d 902.\u201d See also 3 Strong, N. C. Index 2d, Criminal Law \u00a7 113 (1967). In any event, the alleged errors were inconsequential and in no way prejudicial to defendant. This assignment is overruled.\nFor his next assignment of error, defendant alleges \u201c . . . the court erred in charging the jury on the elements of the crime of forgery alleged in the first count of each of the indictments in these two cases, in that such charge . . . was neither sufficient in law nor complete.\u201d This assignment of error does not comply with the requirement that where an assignment is based on failure to charge it is necessary to set out the appellant\u2019s contention as to what the court should have charged. State v. Crews, supra; State v. Kirby, 276 N.C. 123, 171 S.E. 2d 416 (1970) ; State v. Wilson, 263 N.C. 533, 139 S.E. 2d 736 (1965). Notwithstanding, since a long prison sentence is involved, we have elected to discuss.defendant\u2019s contention.\nThe trial court charged:\n\u201cI now instruct you, members of the jury, for you to find the defendant guilty of forgery in each of these cases the State must prove three things beyond a reasonable doubt. I have given you the definition of the term reasonable doubt.\n\u25a0 \u201cFirst, that the defendant falsely made this check; that is that he wrote this check, endorsed this check in the name of Robert Blake; that is that he actually wrote the name Robert Blake on the check and endorsed the check which was made out to James D. Jones; and second, that at the time the defendant made these checks he intended to defraud and third, that the checks appeared to be genuine.\n\u201cSo, I instruct you, members of the jury, if you find from the evidence beyond a reasonable doubt that on the 6th day of September, 1973, the defendant Douglas Leon McAllister wrote these checks, that is completed the writing as you observed on the checks, and that he signed the name or forged the name Robert Blake to these checks, intending at that time to defraud, and that the checks appeared to be genuine, it would be your duty to return a verdict of guilty as charged bearing in mind, members of the jury, that you are to treat each of these cases of forgery separately. However, if you do not so find or have a reasonable doubt as to one or more of these things it would be your duty to return a verdict of not guilty.\u201d\nDefendant first contends that the trial court erred when it stated in the charge that one element of forgery was to find that the defendant endorsed the checks. Defendant admitted: \u201cI signed the name James D. Jones on the back of those checks.\u201d So, that fact was not in dispute. In addition, in the same portion of the charge excepted to by defendant, the jury was instructed that in order to find defendant guilty the jury must find beyond a reasonable doubt that defendant actually wrote the name Robert Blake on the checks. We fail to see how the inclusion of an admitted fact could prejudice defendant.\nDefendant also contends that the trial court erred by failing to instruct the jury that the State had to prove that the defendant did not have the authority to sign the checks. Defendant bases this contention on State v. Phillips, 256 N.C. 445, 124 S.E. 2d 146 (1962). Phillips, however, is not applicable to the question raised by defendant. Phillips pertains to the sufficiency of evidence to go to the jury. There we stated: \u201cThe State makes no showing that the signing of the check was unauthorized and false. The court should have allowed the motion to nonsuit.\u201d To the contrary, in the present cases defendant in his brief admits that the State presented sufficient evidence from which the jury could find that neither the defendant nor Robert Blake had any authority from the owner of the checks to sign them. Thus, the facts in the present cases clearly distinguish them from Phillips.\nFurthermore, there is evidence that Blake was a fictitious person. As stated in Phillips: \u201cIf the name signed to a negotiable instrument, or other instrument requiring a signature, is fictitious, of necessity, the name must have been affixed by one without authority, and if a person signs a fictitious name to such instrument with the purpose and intent to defraud \u2014 the instrument being sufficent in form to import legal liability\u2014 an indictable forgery is committed. ...\u201d And the fact that a \u201c \u2018 . purported maker of such check had no account in the bank is admissible as tending to prove that such purported maker was a fictitious person.\u2019 [Citation omitted.] ... [I]t has been held that such testimony is prima facie evidence of the nonexistence of the maker. [Citation omitted.]\u201d Ibid.\nThe trial court here clearly charged the jury that in order to convict defendant of forgery the State must prove three things beyond a reasonable doubt: (1) That he falsely made the check, that is, that he actually wrote the name Robert Blake on the check; (2) that at the time he intended to defraud; and (3) that the check appeared to be genuine. The word \u201cfalsely\u201d as applied to the making of a check, in order to constitute forgery, implies that the check is not genuine, that in itself it is false. 36 Am. Jur. 2d, Forgery \u00a7 6 (1968).\nThe fact that the drawer of a check lacks authority is one characteristic which renders an instrument false, and an instruction including the requirement that there be a false making encompasses the requirement that the instrument be drawn by one who lacks authority. In State v. Phillips, supra, the Court discussed the requirement of \u201c . . . the falsity of the instrument, i.e., that it was executed without authority.\u201d (Emphasis added.)\nThe evidence in the cases at bar tends to show that Mr. Crowell lost some checks with his account number thereon, and that later two of these checks purportedly signed by Robert Blake, payable to James Jones, an alias used by defendant, and endorsed by defendant in the name of James Jones, were deposited in an account opened by defendant in the name of James Jones. Further, the evidence tends to show that neither Robert Blake nor defendant had authority to sign these checks and that Robert Blake possibly was a fictitious person. This evidence was sufficient to permit a jury to find (1) a false writing of the checks described in the first count of the bills of indictment; (2) an intent to defraud on the part of defendant who falsely made the checks; and (3) an apparent capability of the checks to defraud. These are the three essential elements necessary to constitute the crime of forgery. State v. Greenlee, 272 N.C. 651, 159 S.E. 2d 22 (1968) ; State v. Keller, 268 N.C. 522, 151 S.E. 2d 56 (1966) ; State v. Phillips, supra; State v. Dixon, 185 N.C. 727, 117 S.E. 170 (1923). Here the court correctly charged on all the essential elements of forgery.\nWe also note that defendant did not seek to show by his evidence that he signed the check with the authority of Robert Blake, Frederick Crowell, or anyone else. Rather, defendant contended that he at no time signed the checks but merely took them from one Robert Blake, endorsed them, and deposited them in his account. It appears, therefore, that presence or absence of authority was not in dispute in this case. We fail to see how defendant could have been prejudiced by the instruction on forgery in this case. This assignment is overruled.\nDefendant by his next assignment of error contends that the following portion of the court\u2019s instruction to the jury is erroneous:\n\u201cSo, I charge you, members of the jury, if you find from the evidence and beyond a reasonable doubt that on the 6th day of September, 1978, the defendant Douglas Leon McAllister intending to defraud passed these checks which appeared to be genuine, but which he knew was [sic] falsely made, it would be your duty to return a verdict of guilty as charged in the bill of indictment, that is of uttering a forged check.\u201d\nDefendant specifically contends that this portion of the charge omitted the essential element that the instrument involved has to be a forgery. The court, however, in the excepted portion of the charge, specifically said that the defendant would be guilty if, intending to defraud, he passed these checks which appeared to be genuine, \u201cbut which he knew was [sic] falsely made.\u201d (Emphasis added.) In the preceding paragraph the court had explained in detail that uttering a forged check was the fraudulent offering to another of a check which defendant knew to be falsely made but which appeared to be genuine. Taken together, these instructions included all the essential elements of the offense. As we said in State v. Greenlee, supra: \u201cUttering a forged instrument consists in offering to another the forged instrument with the knowledge of the falsity of the writing and with intent to defraud. [Citation omitted.] . . . . \u201d See also G.S. 14-120.\nIn construing the charge contextually as we are required to do, we hold that the charge as a whole presented the law fairly and clearly to the jury. 3 Strong, N. C. Index 2d, Criminal Law \u00a7 168 (1967) ; State v. Alexander, 279 N.C. 527, 184 S.E. 2d 274 (1971) ; State v. Hall, 267 N.C. 90, 147 S.E. 2d 548 (1966) ; State v. Cook, 263 N.C. 730, 140 S.E. 2d 305 (1965). This assignment is overruled.\nFinally, defendant contends that the bills of indictment in these cases were fatally defective and that judgment should be arrested. Defendant contends that the bills charging forgery fail to set out the manner or method of the alleged forgery. These bills of indictment set out in exact words and figures the checks alleged to have been forged. In State v. Russell, 282 N.C. 240, 192 S.E. 2d 294 (1972), we approved an indictment for forgery couched in the same language. There we said:\n\u201cThe purpose of an indictment \u2018is (1) to give the defendant notice of the charge against him to the end that he may prepare his defense and to be in a position to plead former acquittal or former conviction in the event he is again brought to trial for the same offense; (2) to enable the court to know what judgment to pronounce in case of conviction.\u2019 State v. Burton, 243 N.C. 277, 90 S.E. 2d 390 (1955) ; State v. Greer, 238 N.C. 325, 77 S.E. 2d 917 (1953); State v. Dorsett and State v. Yow, 272 N.C. 227, 158 S.E. 2d 15 (1967).\n\u201cG.S. 15-153 was enacted many years ago to simplify forms of indictment. (Chapter VI, 1811 Laws of North Carolina.) This statute provides that every criminal indictment is sufficient in form for all intents and purposes if it expresses the charge in a plain, intelligible, and explicit manner, and that an indictment shall not be quashed by reason of any informality or refinement if in the bill sufficient matters appear to enable the court to proceed to judgment.\u201d\nOn the authority of State v. Russell, supra, we hold the first counts in the bills of indictment sufficiently charged the essential elements of the crime of forgery.\nDefendant, however, also contends that the counts which charge uttering forged checks are defective in that they do not specify to whom the checks were uttered. Again, this Court in State v. Russell, supra, approved a bill of indictment charging the uttering of the forged check in substantially the same words. The indictments in the present cases charged all the essential elements of the offense, that is, the offering of the forged instruments to another with the knowledge of the falsity of the checks and with intent to defraud. As we said in State v. Bis-sette, 250 N.C. 514, 108 S.E. 2d 858 (1959) :\n\u201cG.S. 15-151 . . . modifies the common law. It is not now necessary to name the injured party where prosecution is based on forgery or other fraud. It is, however, necessary to allege and prove the evil intent when fraud is the foundation for the prosecution. S. v. Phillips, 228 N.C. 446, 45 S.E. 2d 585; S. v. Davenport, 227 N.C. 475, 42 S.E. 2d 686; S. v. Horton, 199 N.C. 771, 155 S.E. 866; S. v. Reed, 196 N.C. 357, 145 S.E. 691; S. v. Edwards, 190 N.C. 322, 130 S.E. 10; S. v. Farmer, 104 N.C. 887.\u201d\nThe defendant in these cases made no motion for a bill of particulars. Speaking to the subject in State v. Shade, 115 N.C. 757, 20 S.E. 537 (1894), Avery, Justice, stated: \u201c . .. Where the defendant thinks that an indictment. . . fails to impart information sufficiently specific as to the nature of the charge, he may before trial move the court to order that a bill of particulars be filed, and the'court will not arrest the judgment after verdict where he attempts to reserve his fire until he takes'first the chance of acquittal. S. v. Brady, 107 N.C. 826. ...\u201d Accord, State v. Russell, supra.\nWe hold that the bills of indictment in these cases properly charged the crimes of forgery and of uttering forged checks. This assignment is overruled.\nAll of defendant\u2019s assignments of error have been considered and all have been overruled. Hence, the decision of the Court of Appeals is affirmed.\nAffirmed.", "type": "majority", "author": "MOORE, Justice." } ], "attorneys": [ "Attorney General Rufus L. Edmisten and Associate Attorneys Wilton E. Ragland, Jr. and C. Diederich Heidgerd for the State.", "Thomas F. Loflin III for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DOUGLAS McALLISTER\nNo. 62\n(Filed 6 May 1975)\n1. Criminal Law \u00a7 40\u2014 free transcript of separate trial \u2014 denial proper\nDenial of defendant\u2019s motion for a free transcript of a separate trial of defendant on similar charges in which nonsuit was entered was not prejudicial error inasmuch as the transcript requested was one of a separate and distinct proceeding rather than a prior proceeding in the present case, and defendant\u2019s attorney did not take advantage of any other formal or informal alternative methods for discovering the information sought.\n2. Criminal Law \u00a7 92\u2014 two charges of forgery and uttering \u2014 consolidation proper\nThe trial court did not err in consolidating for trial two cases against defendant for forgery and uttering where the two checks involved were both dated September 6, 1973 and made payable to defendant in his assumed name, both were drawn on the checking account of a third person in the Union National Bank on numbered checks given to the third person when he opened his account, and both were deposited by defendant in his account with Central Carolina Bank in his assumed name.\n3. Criminal Law \u00a7 76\u2014 defendant\u2019s statement \u2014 voluntariness\nEvidence was sufficient to support the trial court\u2019s findings that officers made no offer of hope, reward, or inducement to the defendant to make a statement, there was no threat or show of violence to persuade or induce the defendant to make a statement, the statement was made voluntarily, knowingly, and understandingly at a time when defendant was in full understanding of his rights, and defendant purposely, freely, knowingly, and voluntarily waived each of those rights.\n4. Criminal Law \u00a7 86\u2014 defendant\u2019s use of heroin \u2014 cross-examination proper\nThe trial court properly allowed the solicitor to cross-examine defendant concerning his use of heroin since the questions related to matters within the knowledge of the witness, not to accusations of any kind made by others, and were competent for the purpose of impeachment.\n5. Criminal Law \u00a7 114\u2014 reliance by jurors on own recollection of evidence \u2014'instruction proper\nThe trial court\u2019s instruction that the jury must rely on its own recollection of the testimony and evidence and not just the testimony recapitulated by the court was in strict compliance with G.S. 1-180 and did not amount to an expression of opinion.\n6. Criminal Law \u00a7 168\u2014 error in instructions \u2014 necessity for calling to trial court\u2019s attention\nGenerally, an inadvertence in recapitulating the evidence must be called to the trial court\u2019s attention in time for correction and a slight inaccuracy in stating the evidence will not be held reversible error when the matter is not called to the court\u2019s attention in apt time to afford opportunity for correction.\n7. Criminal Law \u00a7 163\u2014 assignment of error to failure to charge \u2014 necessity for setting out proper charge\nWhere an assignment of error is based on failure to charge, it is necessary to set out the appellant\u2019s contention as to what the court should have charged.\n8. Forgery \u00a7 2\u2014 uttering forged check \u2014 authority to sign\nIn a prosecution for forgery and uttering forged checks, the trial court did not err in failing to instruct the jury that the State had to prove that defendant did not have the authority to sign the checks where there was evidence that Robert Blake, whose signature appeared on the checks, was a fictitious character, and if a name signed to a negotiable instrument is fictitious, of necessity, the name must have been affixed by one without authority.\n9. Forgery \u00a7 2\u2014 elements of crime \u2014 sufficiency of instructions\nThe trial court correctly charged on the three essential elements of forgery: (1) a false writing of the checks described in the indictments, (2) an intent to defraud on the part of defendant who falsely made the checks, and (3) an apparent capability of the checks to defraud.\n10. Forgery \u00a7 2\u2014 uttering forged check \u2014 words and figures of check in indictment \u2014 sufficiency\nBills of indictment charging forgery sufficiently set out the manner or method of the alleged forgery and the person to whom the checks were uttered where the bills set out in exact words and figures the checks alleged to have been forged.\n11. Indictment and Warrant \u00a7 13\u2014 insufficiency of indictment \u2014 motion for bill of particulars proper\nWhere the defendant thinks that an indictment fails to impart information sufficiently specific as to the nature of the charge, he may before trial move the court to order that a bill of particulars be filed.\nOn certiorari to review the decision of the North Carolina Court of Appeals, reported in 23 N.C. App. 359, 208 S.E. 2d 890 (1974), which found no error in the trial before Brewer, /., at the April 8, 1974 Session of Durham Superior Court. We allowed certiorari on 30 December 1974.\nDefendant was tried and convicted of two counts of forgery and two counts of uttering a forged check, and received prison sentences on each count.\nEvidence for the State tends to show: Frederick A. Crowell patronized the Stallion Club in Durham on the night of 5 August 1973. He had with him eight or nine blank checks issued to him by the Union National Bank in Creedmoor where he had opened a checking account several days before. The checks were stamped with Crowell\u2019s account number but not with his name or address. He discovered the checks missing the next morning, 6 August. He was not sure where he had lost the checks but thought it must have been at the Stallion Club since he last remembered them as being in his coat while at the club. He immediately notified the bank of his loss.\nAt trial, Crowell identified two checks introduced in evidence by the State as being among those issued to him by Union National Bank and discovered missing on 6 August. The checks were written for the amounts of $249.60 and $350.00. Both were payable to one James D. Jones and were purportedly signed by one Robert Blake. Crowell at no time authorized anyone to sign the checks \u201cRobert Blake\u201d or to designate \u201cJames D. Jones\u201d as payee.\nOn 14 August 1973, Paula Zion, a secretary at the Forest Hills Branch of Central Carolina Bank, opened a checking account for one James D. Jones. James D. Jones and defendant are one and the same person, although defendant did not tell this to Paula Zion at that time.\nDefendant deposited the check for $249.60, dated 6 September 1973, to the account of James D. Jones at the Wellons Branch of Central Carolina Bank, and deposited the check for $350.00, also dated 6 Septemberr 1973, to the same account at the main office of Central Carolina Bank in downtown Durham. Both checks were drawn on the Union National Bank and were returned by that bank stamped \u201csignature not authorized and no such account.\u201d These checks, together with other abuses of this account, resulted in losses to Central Carolina Bank of $1,416.89.\nOn 21 September 1973, defendant was taken into custody by Detective A. L. Parham of the Durham Police Department. Defendant was read his rights under Miranda, v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694, 86 S.Ct. 1602 (1966), and signed a written waiver thereof. Defendant told Detective Parham he found the checks in question at a dance and deposited them in an account he had already opened at Central Carolina Bank in the name of James D. Jones. He stated that no one else was involved in these checks.\nEvidence for the defendant tends to show: Defendant occasionally used the name James Jones because, while living in New Jersey several years earlier, a \u201cloan shark\u201d company had threatened to kill him if he did not repay them, so he took the name \u201cJames Jones\u201d and moved to New York City. He later came to Durham and opened an account at Central Carolina Bank in August 1978 under the name of \u201cJames Jones.\u201d He took a job as salesman for the Kirby Vacuum Cleaner Company. The two checks in question were paid to him by one Robert Blake in partial payment for three vacuum cleaners which Blake planned to purchase from him. Defendant testified he does not know what happened to the contracts he made with Blake for the sale of the vacuum cleaners, does not know Blake\u2019s address, and did not ask Blake for his identification or social security number when negotiating the sale for the vacuum cleaners.\nDiane Perry, a niece of defendant, assisted him in some of the paper work involved in selling vacuum cleaners. She recalled seeing \u201caround two\u201d contracts for sale of vacuum cleaners to Robert Blake, although she did not know when in 1973 she saw them. After defendant was arrested, she saw James Odom going through defendant\u2019s briefcase, \u201ctaking papers out and leaving others in.\u201d\nJames A. Odom, who had been defendant\u2019s sales manager at the Durham branch of the Kirby Vacuum Cleaner Company, described defendant as a salesman with \u201cwonderful potential.\u201d He carefully searched the briefcase where defendant kept his sales contracts and his search thereof yielded no contracts bearing the name \u201cRobert Blake.\u201d\nCager Perry, defendant\u2019s nephew, is a musician in a musical group that sometimes plays at the Stallion Club. He has never seen his uncle there.\nOther facts pertinent to decision are set out in the opinion.\nAttorney General Rufus L. Edmisten and Associate Attorneys Wilton E. Ragland, Jr. and C. Diederich Heidgerd for the State.\nThomas F. Loflin III for defendant appellant." }, "file_name": "0178-01", "first_page_order": 206, "last_page_order": 219 }