State v. Benton

Court of Appeals of North Carolina

State v. Benton

178 S.E.2d 81, 10 N.C. App. 280, 1970 N.C. App. LEXIS 1256

CourtCourt of Appeals of North Carolina

DecidedDecember 30, 1970

DocketNo. 705SC469

StatusPublished

This text of 178 S.E.2d 81 (State v. Benton) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Benton, 178 S.E.2d 81, 10 N.C. App. 280, 1970 N.C. App. LEXIS 1256 (N.C. Ct. App. 1970).

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Opinion

PARKER, Judge.

Defendant assigns' as error the refusal of the court to grant his motion for a directed verdict at the close of all the evidence on the ground that the evidence was insufficient to carry the case to the jury. Defendant was tried on an indictment charging him with breaking and entering “the building located 2024 Wrightsyille Ave., Wilmington, N. C., known as the Eakins Grocery Store, William Eakins, owner/possessor.” All of the evidence, however, related to a store, the nature of which was not disclosed, located at 2040 Wrightsville Avenue in the City of Wilmington, owned and operated by William Adkins. Thus, the record discloses a fatal variance between the indictment and the proof. State v. Brown, 263 N.C. 786, 140 S.E. 2d 413. Defendant must be convicted, if convicted at all, of the particular offense or a lesser degree thereof charged in the bill of indictment. The allegation and proof must correspond. State v. Watson, 272 N.C. 526, 158, S.E. 2d 334.

In his brief on this appeal, appellant made no mention of the variance noted but contended his motion should have been allowed for that the evidence was insufficient to connect defendant with the breaking and entering and raised no more than a conjecture as to his guilt. “Even so, the question presented by defendant’s assignment of error is whether the evidence was sufficient rather than whether defendant’s particular contention is valid.” State v. Cooper, 275 N.C. 283, 167 S.E. 2d 266.

The solicitor may, if so advised, present another bill of indictment correctly alleging the premises which were broken and entered. State v. Watson, supra. For the fatal variance between the indictment and proof, the judgment in the present case is

Reversed.

Chief Judge Mallard and Judge Graham concur.

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PARKER, Judge.

Defendant assigns' as error the refusal of the court to grant his motion for a directed verdict at the close of all the evidence on the ground that the evidence was insufficient to carry the case to the jury. Defendant was tried on an indictment charging him with breaking and entering “the building located 2024 Wrightsyille Ave., Wilmington, N. C., known as the Eakins Grocery Store, William Eakins, owner/possessor.” All of the evidence, however, related to a store, the nature of which was not disclosed, located at 2040 Wrightsville Avenue in the City of Wilmington, owned and operated by William Adkins. Thus, the record discloses a fatal variance between the indictment and the proof. State v. Brown, 263 N.C. 786, 140 S.E. 2d 413. Defendant must be convicted, if convicted at all, of the particular offense or a lesser degree thereof charged in the bill of indictment. The allegation and proof must correspond. State v. Watson, 272 N.C. 526, 158, S.E. 2d 334.

In his brief on this appeal, appellant made no mention of the variance noted but contended his motion should have been allowed for that the evidence was insufficient to connect defendant with the breaking and entering and raised no more than a conjecture as to his guilt. “Even so, the question presented by defendant’s assignment of error is whether the evidence was sufficient rather than whether defendant’s particular contention is valid.” State v. Cooper, 275 N.C. 283, 167 S.E. 2d 266.

The solicitor may, if so advised, present another bill of indictment correctly alleging the premises which were broken and entered. State v. Watson, supra. For the fatal variance between the indictment and proof, the judgment in the present case is

Reversed.

Chief Judge Mallard and Judge Graham concur.

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Bluebook (online)

178 S.E.2d 81, 10 N.C. App. 280, 1970 N.C. App. LEXIS 1256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-benton-ncctapp-1970.

Opinion

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