{ "id": 798757, "name": "STATE OF NORTH CAROLINA v. COYE HAVEN KIRKPATRICK", "name_abbreviation": "State v. Kirkpatrick", "decision_date": "1996-05-10", "docket_number": "No. 447PA95", "first_page": "285", "last_page": "289", "citations": [ { "type": "official", "cite": "343 N.C. 285" } ], "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": "462 S.E.2d 557", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": -1 }, { "cite": "120 N.C. App. 405", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916035 ], "year": 1995, "opinion_index": -1, "case_paths": [ "/nc-app/120/0405-01" ] }, { "cite": "272 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574217 ], "opinion_index": -1, "case_paths": [ "/nc/272/0651-01" ] }, { "cite": "90 S.E.2d 550", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1955, "pin_cites": [ { "page": "551-52" } ], "opinion_index": 0 }, { "cite": "243 N.C. 262", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623677 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/nc/243/0262-01" ] }, { "cite": "185 S.E.2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "680" } ], "opinion_index": 0 }, { "cite": "280 N.C. 273", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571097 ], "year": 1972, "pin_cites": [ { "page": "276" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0273-01" ] }, { "cite": "159 S.E.2d 22", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1968, "pin_cites": [ { "page": "26" } ], "opinion_index": 0 }, { "cite": "272 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574217 ], "opinion_index": 0, "case_paths": [ "/nc/272/0651-01" ] } ], "analysis": { "cardinality": 471, "char_count": 9885, "ocr_confidence": 0.751, "pagerank": { "raw": 4.856319230494445e-08, "percentile": 0.30446060754893434 }, "sha256": "2d19d5d9baa62f81279dc9580e470d8bb7fc92d5258ab97fb4938c6d67b4f078", "simhash": "1:6fe168c3072726f8", "word_count": 1634 }, "last_updated": "2023-07-14T22:14:44.802104+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. COYE HAVEN KIRKPATRICK" ], "opinions": [ { "text": "MITCHELL, Chief Justice.\nDefendant, Coye Haven Kirkpatrick, was convicted of uttering a check with a forged endorsement and was given an enhanced sentence pursuant to our habitual felon statute, see N.C.G.S. \u00a7 14-7.6 (1993), of a term of imprisonment of forty-six years. The Court of Appeals acting ex mero motu concluded that there was a material variance between the allegation and the verdict and judgment, reasoning that defendant was convicted of the substantive crime of uttering an instrument bearing a forged signature but was only indicted for the attempt to commit that crime. As a result, the Court of Appeals vacated the verdict and judgment against defendant without reaching the assignments of error presented by defendant. We allowed the State\u2019s petition for discretionary review on 7 December 1995, and now reverse and remand.\nEvidence presented at trial tended to show that on 7 November 1993, defendant attempted to cash a check for $24.05, payable to Sherri Mann, at a convenience store in Burlington. The check was endorsed on the back. The clerk at the convenience store knew Mann and called her to see whether she had authorized anyone to cash the check. Mann told the clerk that she had not. The clerk then called the police, who arrested defendant upon their arrival. The clerk did not cash the check, but did turn it over to the police.\nOn 29 November 1993, defendant was charged in an indictment bearing the caption \u201cUttering check forged endorsement\u201d and alleging a violation of N.C.G.S. \u00a7 14-120. The indictment alleged that\nthe defendant named unlawfully, willfully and feloniously did attempt to utter, publish, pass and deliver as true to Jimmy Clayton D/B/A Car Shop #2 ... a check of Folks of North Carolina, Inc., in the amount of $24.05 . . . payable to Sherri C. Mann and dated 10/25/93, which contained a forged and falsely made endorsement of Sherri C. Mann. The defendant knew at the time that the endorsement was falsely made and forged and acted for the sake of gain and with the intent TO [sic] injure and defraud.\nThe jury returned a guilty verdict for the offense of uttering a check bearing a forged endorsement.\nThe version of N.C.G.S. \u00a7 14-120 in effect at the time of the crime provided that the offense of \u201cUttering forged paper or instrument containing a forged endorsement\u201d is committed when\nany person, directly or indirectly, whether for the sake of gain or with intent to defraud or injure any other person, shall utter or publish any such false, forged or counterfeited instrument as is mentioned in G.S. 14-119 [defining forgery], or shall pass or deliver, or attempt to pass or deliver, any of them to another person (knowing the same to be falsely forged or counterfeited) . . . [or when] any person, directly or indirectly, whether for the sake of gain or with intent to defraud or injure any other person, shall falsely make, forge or counterfeit any endorsement on any instrument described in the preceding section, whether such instrument be genuine or false, or shall knowingly utter or publish any such instrument containing a false, forged or counterfeited endorsement or, knowing the same to be falsely endorsed, shall pass or deliver or attempt to pass or deliver any such instrument containing a forged endorsement to another person ....\nN.C.G.S. \u00a7 14-120 (1993) (emphasis added). In State v. Greenlee, 272 N.C. 651, 159 S.E.2d 22 (1968), this Court upheld the conviction of a defendant charged under this statute, noting that uttering \u201cconsists in offering to another the forged instrument with the knowledge of the falsity and with intent to defraud,\u201d id. at 657, 159 S.E.2d at 26, and that \u201c \u2018the mere offer of the false instrument with fraudulent intent constitutes an uttering or publishing, the essence of the offense being, as in the case of forgery, the fraudulent intent regardless of its successful .consummation,\u2019 \u201d id. (quoting 23 Am. Jur. Forgery \u00a7 5, at 677 (1939)).\nBoth the plain language of N.C.G.S. \u00a7 14-120 and the clear precedent established by this Court\u2019s interpretation of that statute in Greenlee mandate the conclusion that uttering is accomplished either when an individual passes or delivers a forged instrument or attempts to pass or deliver a forged instrument. While the Court of Appeals determined that the indictment in this case was for the offense of \u201cattempted uttering,\u201d N.C.G.S. \u00a7 14-120 provides only for the offense of uttering, which was committed by the \u201cmere offer\u201d of the forged check in this case.\nWe find further support in other authorities for our conclusion that the crime of \u201cuttering\u201d includes an attempt to offer a forged instrument. Black\u2019s Law Dictionary defines \u201cutter\u201d as\n[t]o put or send (as a forged check) into circulation; to publish or put forth; to offer. To utter and publish an instrument, as a counterfeit note, is to declare or assert, directly or indirectly, by words or action that it is good, uttering it is a declaration that it is good, with an intention or offer to pass it. To utter, as used in a statute against forgery and counterfeiting, means to offer, whether accepted or not, a forged instrument, with the representation, by words or actions, that the same is genuine.\nBlack\u2019s Law Dictionary 1547 (6th ed. 1990) (emphasis added). Uttering is defined in Corpus Juris Secundum as \u201cthe offering of a forged instrument, knowing it to be such, with a representation that it is genuine, and with an intent to defraud. It is not essential that . . . the instrument be accepted as genuine . ...\u201d 37 C.J.S. Forgery \u00a7 37, at 57 (1943) (emphasis added). Finally, Wharton\u2019s Criminal Law informs us that \u201c[a] forged instrument is uttered when it is offered to another as genuine, without regard to whether it is so accepted.\u2019\u2019 4 Charles E. Torcia, Wharton\u2019s Criminal Law \u00a7 515, at 153 (14th ed. 1981) (emphasis added and footnote omitted).\nWith respect to the allegation in defendant\u2019s indictment stating that defendant \u201cunlawfully, willfully and feloniously did attempt to utter, publish, pass and deliver\u201d the check, the word \u201cutter\u201d was mere surplusage that did not alter the crime charged. \u201cAllegations beyond the essential elements of the crime sought to be charged are irrelevant and may be treated as surplusage.\u201d State v. Taylor, 280 N.C. 273, 276, 185 S.E.2d 677, 680 (1972). In this case, the prosecutor used the word \u201cutter\u201d in a reiterative fashion along with \u201cpublish, pass and deliver\u201d to make out the charge of uttering. The indictment set out allegations sufficient to show that defendant\u2019s actions satisfied the elements of the crime at issue in this case without the surplus word \u201cutter.\u201d The use of \u201cutter\u201d in the context of the information set forth in the indictment did not alter the charge of uttering otherwise properly alleged in the indictment and therefore did not invalidate the indictment.\nWhile defendant contends that this Court\u2019s decision in State v. Hare, 243 N.C. 262, 90 S.E.2d 550 (1955), mandates the conclusion that the indictment in the present case was sufficient only to make out a charge of \u201cattempted uttering,\u201d we conclude that Hare is inapposite. In Hare, this Court concluded that N.C.G.S. \u00a7 14-87, North Carolina\u2019s robbery statute, includes the offenses of robbery with a dangerous weapon and attempted robbery with a dangerous weapon, and that an indictment alleging attempted robbery \u2014 a lesser included offense of robbery \u2014 is different from and would not support a conviction for robbery. Id. at 264-65, 90 S.E.2d at 551-52. While defendant argues that Hare governs in this case and that attempted uttering is a lesser included offense of uttering, we do not agree. Under N.C.G.S. \u00a7 14-120, the offering, whether successful or unsuccessful, of a forged instrument with the intent to defraud is uttering. As the indictment charged the defendant with uttering \u2014 the crime for which the jury found him guilty \u2014 the Court of Appeals erred in vacating the verdict and the judgment of the trial court.\nFor the foregoing reasons, we reverse the decision of the Court of Appeals and remand this case to that court so that it may address the assignments of error originally presented and argued by defendant on appeal.\nREVERSED AND REMANDED.", "type": "majority", "author": "MITCHELL, Chief Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by J. Mark Payne, Assistant Attorney General, for the State-appellant.", "Malcolm Ray Hunter, Jr., Appellate Defender, for defendantappellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. COYE HAVEN KIRKPATRICK\nNo. 447PA95\n(Filed 10 May 1996)\nForgery \u00a7 28 (NCI4th)\u2014 uttering a forged check \u2014 check passed but not cashed \u2014 no variance between allegation and verdict\nThere was not a material variance between an allegation and a verdict and judgment where defendant attempted to cash a check with an endorsement on the back; the clerk at the convenience store knew the person to whom the check was payable, called her and learned that she had not authorized anyone to cash the check; the clerk then called the police who arrested defendant upon their arrival; and the clerk turned the check over to the police without cashing it. Both the plain language of N.C.G.S. \u00a7 14-120 and the clear precedent established by State v. Greenlee, 272 N.C. 651, mandate the conclusion that uttering is accomplished either when an individual passes or delivers a forged instrument or attempts to pass or deliver a forged instrument. The use of \u201cutter\u201d in the context of the information set forth in the indictment did not alter the charge of uttering otherwise properly alleged in the indictment and therefore did not invalidate the indictment.\nAm Jur 2d, Forgery \u00a7\u00a7 20, 33, 34.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of a unanimous decision of the Court of Appeals, 120 N.C. App. 405, 462 S.E.2d 557 (1995), vacating a judgment entered by Allen (J.B., Jr.), J., on 21 April 1994 in Superior Court, Alamance County. Heard in the Supreme Court 9 April 1996.\nMichael F. Easley, Attorney General, by J. Mark Payne, Assistant Attorney General, for the State-appellant.\nMalcolm Ray Hunter, Jr., Appellate Defender, for defendantappellee." }, "file_name": "0285-01", "first_page_order": 333, "last_page_order": 337 }