{
  "id": 1955414,
  "name": "STATE v. JOSEPH LAMB",
  "name_abbreviation": "State v. Lamb",
  "decision_date": "1871-06",
  "docket_number": "",
  "first_page": "419",
  "last_page": "423",
  "citations": [
    {
      "type": "official",
      "cite": "65 N.C. 419"
    }
  ],
  "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": [],
  "analysis": {
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  "last_updated": "2023-07-14T18:41:56.423501+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. JOSEPH LAMB."
    ],
    "opinions": [
      {
        "text": "Dick, J.\nThe question presented on the motion in arrest of judgment, is whether the forged paper writing set forth in haec verba in the indictment, and described as an \u201c order for the delivery of goods \u201d comes within the meaning of our statute. Rev. Code, ch. 34, sec. 59.\nThe same language is used in the statute, 7 Geo. 2, and has frequently received judicial construction in England.\n\u201c A forged order on a tradesman in the name of a customer, requesting that the goods mentioned in it, might be delivered to the bearer, is not within the statute, 7 Geo. 2, if the customer has no interest in the goods mentioned.\u201d Williams\u2019 case, 1 Leac, 114; Clinch\u2019s case, Ib. 540.\nTo constitute an \u201c order for the delivery of goods,\u201d within the meaning of the statute, there must be apparently a drawer; that he must appear to have a disposing power over the goods: that there must be a person drawn upon, who is under obligation to obey; and there must appear a person to whom the delivery is to be made. 1 Bish. C. L. 343. Newton\u2019s case, 2 Moody, 89. To remedy the defects in the statute, 7 Geo. 2, pointed out in numerous decisions, other statutes were passed to cover as far as possible, all cases of forgery which might arise-in commercial or business transactions. The words \u201c undertaking,\u201d \u201c warrant,\u201d \u201c authority,\u201d and \u201c request,\u201d contained in statute 11 Geo. 4, and 1 William 4, are not in our statute and we need not refer to the construction given to these words by various decisions in the English Courts. In the case before us the forged paper writing, does not come within the statutory meaning of an \u201c order for the delivery of goods,\u201d as construed and defined by the Courts in England, and we see no sufficient reason for departing from the rules which they have established. The paper in question is a request for the delivery of goods, and would come within the provisions of the English statutes against forgery, but it is not embraced in our statute.\nHis Honor erred therefore in pronouncing judgment against the defendant, for a felony under the statute. The Attorney-General insisted in his argument in this Court, that the defendant was guilty of the crime of forgery at common law, and as he was convicted, judgment ought to be pronounced against him for this offence.\nAfter careful consideration, we are of opinion that such, a position is correct in law.\nIn Wood\u2019s case, Strange, 747, it was held that forging an order for the delivery of goods, was a misdemeanor at common, law; and Mr. East considers this case to have settled the rule; that the counterfeiting of any writing with a fraudulent intent, whereby another may be prejudiced, is forgery at common law. 2 East. P. C. 861.\nIn our case the forged paper is set out fully in the indictment, \u00e1nd we can see that it is such a forgery as is punishable at common law, and judgment may be pronounced, although the prisoner was indicted under the statute, for the conclusion against the statute may be rejected as surplusage. State v. Walker, N. C. Term Rep. 229, 1 Bish. C. Pr. 349.\nThe objection made by the defendant\u2019s counsel, that there is a misdescription o\u00ed the paper set out in the indictment, cannot be sustained. Under some o\u00ed the old decisions of the Courts, this objection would be fatal, \u2014 but the principle is now well established, that where the instrument is fully set out in the indictment, a technical designation of its character, may be dispensed with; and in such, a misnomer of the instrument may be rejected as surplusage. Wharton C. L. sec. 1467, and note.\nThere was error in the judgment of the Court below, and this opinion must be certified, to the end that his Honor may pronounce judgment according fo law.\nPer Curiam. Reversed.",
        "type": "majority",
        "author": "Dick, J."
      }
    ],
    "attorneys": [
      "Attorney General, for the State.",
      "Bnsbee efe Busbee, for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE v. JOSEPH LAMB.\n'ITo constitute an \u201c order for the delivery of gopds,\u201d within the meaning of Rev. Code, chap. 34, sec. 59, a forgery, there must appear to be a drawer, a -person drawn upon, who is under obligation to obey, and there must appear-to be a person to whom the goods are to be delivered.\n\u00a1If the paper writing set forth in the indictment as a forgery does not contain these requisites, there cannot be a conviction for forgery under such statute.\n\u2018The writing set forth in the indictment is such an instrument as will con-stitute at common law a forgery, hence, the conclusion \u201cagainst the \u25a0form of the statute \u201d may be rejected as surplusage, and under the conviction in this case the defendant may be punished for a misdemeanor, as at common: law.\nIndictment for. forgery-tried before Pool, J., at Spring Term, 1871, of Perquimans Superior Court.\nThe indictment contained two Counts, the first of which is vonjy.materialto.he stated,..and is as folio \u00a1vs, to wit:\n\u201c STATE OE NORTH CAROLINA,\n\u201c Perquimans County,\n\u201c Superior Court, Fall Term, 1871.\n\u201cThe Jurors for the State upon their oath present that Joseph Lamb, of color, late of said county, at and in said county, with force and arms on the 20th day of September, A. D. 1870, falsely and fraudulently did forge and counterfeit, and cause and procure to be forged and counterfeited, a certain order for the delivery o\u00ed goods, purporting to be made and signed by one James H. Hyatt, and addressed to Baxter & Adelsdorf, of Norfolk, Ya., the .tenor of which said forged and counterfeited order for the delivery of goods is as follows, that is to say:\n\u2018Woodvillb, N. C., Sept. 20, 1870.\n\u2018 Messrs. Baxter d\u00e9 Adelsdorf, Norfolk, Va.,\n\u201c Cents : \u2014 Please send me one bbl. of molasses, one-half bbl. of sugar, 2 boxes soap, 2 bbls. of crackers, 1 keg powder, 1 jar snuff. Please put them as cheap as possible, and send them by steamer to E. City, and oblige,\n\u2018 Yery respectfully,\n\u2018JAMES H. HYATT.\u2019\n\u201c With intent to defraud the said J ames H. Hyatt to his great damage, contrary to the form and statute in such cases made and provided, and against the peace and dignity of the State.\u201d\nThe jury found the defendant guilty upon said count, and not guilty upon the second count, whereupon the defendant moved in arrest of judgment, which motion was overruled. Judgment and appeal.\nAttorney General, for the State.\nBnsbee efe Busbee, for defendant.\nI. This indictment is defective,\n1. Because the forged paper writing set out, is not \u201can order for the delivery of goods,\u201d and the indictment is therefore self-contradictory and defective.\n2. That there is no allegation that the person whose name is signed to the order, had or assumed to have any right to order the delivery of goods. Clinch\u2019s case, 2 Russ on Cr. 473; 3 Chitty Or. Law 1033.\n3. Because it is not alleged that the persons to whom the order was directed, were, or were supposed to be, in possession of the goods, or any part of them named in the order. 3 Russ on Cr. 474.\n4. Because the intent to injure is corruptly laid, the injury being necessarily inflicted, (if the rest of the indictment was good) upon the persons from whom the goods were ordered.\nII. The indictment cannot be maintained at common law, because,\n1. If the forged paper is described as an \u201c order for the delivery of goods,\u201d and is not, the indictment is contradictory and defective at common law as well as by statute. Eost. 119.\n2. But the offence is not indictable at common law; a promissory note is not such a paper as can be forged, and much less an order for the delivery of goods, or a request for goods. 3 Ch. Cr. Law 1022."
  },
  "file_name": "0419-01",
  "first_page_order": 429,
  "last_page_order": 433
}