State v. Luff

Brogden, J.

The defendant contended that the fund of $5,000 deposited to the credit of the corporation belonged to his son, Henry Luff, who had a mortgage upon the property, and that he had a power of attorney from his son authorizing him to contract for and in his behalf.

The record discloses that the defendant consulted Mr. U. L. Spence, an eminent attorney, to ascertain the advice of said attorney as to the ownership of the insurance money or as to who would be entitled to the proceeds thereof. It appeared that the first $5,000 of a certain mortgage indebtedness held by Eachael Levey had been duly assigned to Henry Luff by a paper-writing which was duly recorded. The defendant was advised by his attorney that under the circumstances he was of the opinion that Luff was entitled to the balance of said insurance money after the payment of $1,200 to Anna Luff who held a prior encumbrance securing said sum.

The State objected to the testimony of the attorney, and the evidence was excluded.

The exception of the defendant to the ruling of the court is valid. The excluded evidence was competent upon the question of fraudulent intent *602 wbicb is an essential element or ingredient of tbe offense of forgery.

S. v. Shaw, 92 N. C., 768 ;

S. v. Cross, 101 N. C., 770 , 7 S. E., 715 ;

S. v. Wolf, 122 N. C., 1079 , 29 S. E., 841 .

. The record is voluminous, and there are other exceptions warranting serious consideration, but as the defendant is entitled to a new trial, 'we deem it unnecessary to discuss them.

New trial.