State v. Daye

Court of Appeals of North Carolina

State v. Daye

262 S.E.2d 704, 45 N.C. App. 316, 1980 N.C. App. LEXIS 2623

CourtCourt of Appeals of North Carolina

DecidedFebruary 19, 1980

DocketNo. 7910SC798

StatusPublished

Cited by1 cases

This text of 262 S.E.2d 704 (State v. Daye) 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. Daye, 262 S.E.2d 704, 45 N.C. App. 316, 1980 N.C. App. LEXIS 2623 (N.C. Ct. App. 1980).

Pincite

Opinion

WEBB, Judge.

Defendant contends there was a fatal variance between the indictment and the proof at trial in that the evidence did not refer to “J. Riggings” as a corporation. We note that this is not a case in which there was proof that title to the stolen property was in someone other than the owner alleged in the indictment. If the proof had shown J. Riggings was an individual, the case should have been dismissed. State v. Vawter, 33 N.C. App. 131, 234 S.E. 2d 438 (1977). In the case sub judice, the indictment alleged that J. Riggings, Inc. owned the two suits. The proof was that they were owned by “J. Riggings, a man’s retailing establishment,” “J. Riggings store” and “J. Riggings.” The question posed by this appeal is whether this proof is so at variance with the indictment that the case should be dismissed. We hold that it is not. The evidence was that the suits were owned by the entity named [318]*318in the indictment. We hold that it was not a fatal variance that no one testified J. Riggings was a corporation. See State v. Whitley, 208 N.C. 661, 182 S.E. 338 (1935).

The defendant also assigns error to a comment by the court during the trial. The State objected to the way defendant answered a question. The following comment was made:

“COURT: Sustained. Just answer the question asked and we’ll get along better.”

We hold the defendant suffered no prejudicial error by this statement.

No error.

Judges Parker and Arnold concur.

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WEBB, Judge.

Defendant contends there was a fatal variance between the indictment and the proof at trial in that the evidence did not refer to “J. Riggings” as a corporation. We note that this is not a case in which there was proof that title to the stolen property was in someone other than the owner alleged in the indictment. If the proof had shown J. Riggings was an individual, the case should have been dismissed. State v. Vawter, 33 N.C. App. 131, 234 S.E. 2d 438 (1977). In the case sub judice, the indictment alleged that J. Riggings, Inc. owned the two suits. The proof was that they were owned by “J. Riggings, a man’s retailing establishment,” “J. Riggings store” and “J. Riggings.” The question posed by this appeal is whether this proof is so at variance with the indictment that the case should be dismissed. We hold that it is not. The evidence was that the suits were owned by the entity named [318]*318in the indictment. We hold that it was not a fatal variance that no one testified J. Riggings was a corporation. See State v. Whitley, 208 N.C. 661, 182 S.E. 338 (1935).

The defendant also assigns error to a comment by the court during the trial. The State objected to the way defendant answered a question. The following comment was made:

“COURT: Sustained. Just answer the question asked and we’ll get along better.”

We hold the defendant suffered no prejudicial error by this statement.

No error.

Judges Parker and Arnold concur.

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Bluebook (online)

262 S.E.2d 704, 45 N.C. App. 316, 1980 N.C. App. LEXIS 2623, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-daye-ncctapp-1980.

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