State v. . Corpening

133 S.E. 14, 191 N.C. 751, 1926 N.C. LEXIS 170

• Court: Supreme Court of North Carolina
• Decided: May 12, 1926
• Status: Published

Opinion

Stacy, C. J.

Tbe primary purpose of this appeal is to test tbe constitutionality of chapter 14, Public Laws 1925, known as tbe Worthless Check Act of 1925. But tbe record will not permit a determination of tbe question -sought to be presented. S. v. Edwards, 190 N. C., 322. Tbe courts never anticipate a question of constitutional law in advance of tbe necessity of deciding it. Person v. Doughton, 186 N. C., p. 725.

There is a fatal variance between tbe indictment and tbe proof. Tbe charge is that tbe defendant issued and delivered to tbe Lenoir U-Drive-It Company on 10 August, 1925, a worthless check in tbe amount of $15.00 and obtained therefor tbe sum of its equivalent in money. Tbe proof is that tbe defendant issued and delivered to tbe Lenoir U-Drive-It Company on 20 August, 1925, a worthless check in tbe amount of $15.00 to pay-for tbe hire of an automobile. Tbe charge relates to one transaction, tbe proof to another. S. v. Harbert, 185 N. C., 760.

In every criminal prosecution tbe defendant has a constitutional right to be informed of tbe accusation against him; and it is a rule of universal observance in tbe administration of tbe criminal law that a defendant must be convicted, if convicted at all, of tbe particular offense charged in tbe bill of indictment. “Tbe allegation and proof must correspond. It would be contrary to all rules of procedure, and violative of bis constitutional right to charge him with tbe commission of one crime and convict him of another and very different one. He is entitled to be informed of tbe accusation against him and to be .tried accordingly.” — Walker, J., in S. v. Wilkerson, 164 N. C., 444.

In S. v. Davis, 150 N. C., 851, tbe defendant was charged with obtaining a clay-bank mare by means of a false pretense as to the qualities of a “sorrel horse,” and the proof was that he obtained the clay-bank mare in exchange for a bay “saddle horse.” This was held to be a material variance, Holce, J., saying that “under the authorities there would seem to be a clear case of variance between the allegation and the proof, and the jury should have been so instructed.” The charge related to one trade, the proof to another. Again, it was held to be a fatal variance in S. v. Hill, 79 N. C., 656, “where the defendant was charged with injuring a cow, and the proof was that the animal injured was an ox.” See, also, S. v. Snipes, 185 N. C., 743; S. v. Gibson, 169 N. C., 318; S. v. McWhirter, 141 N. C., 809; S. v. Lewis, 93 N. C., 581; S. v. Miller, ibid., 511; S. v. Ray, 92 N. C., 810; S. v. Sloan, 67 N. C., 357; S. v. Corbitt, 46 N. C., 264.

Where there is a fatal variance, or a total failure of proof, the State is not permitted to amend the indictment so as to make the allegation fit the proof, at least not without the consent of the defendant. The State is supposed to know its evidence before the indictment is drawn, and it must abide by its terms and prove the charge as laid in the bill, or else fail in the prosecution. S. v. Gibson, supra. Proof without allegation is as unavailing as allegation without proof. S. v. Hawley, 186 N. C., p. 438.

The court was clearly correct in directing a verdict of not guilty on the facts found by the jury. S. v. Walker, 32 N. C., 234.

No error.