State v. . Franklin

167 S.E. 569, 204 N.C. 157, 1933 N.C. LEXIS 348

• Court: Supreme Court of North Carolina
• Decided: February 8, 1933
• Status: Published

Opinion

Stacy, O. J.

It is not charged in the bill of indictment that the check described therein was “delivered to another . . . for the payment of money or its equivalent, knowing at the time . . . that the maker or drawer thereof has not sufficient funds on deposit in or credit with such bank or depository with which to pay the same upon presentation.” Chapter 62, Public Laws, 1927; S. v. Yarboro, 194 N. C., 498, 140 S. E., 216; S. v. Baker, 199 N. C., 578, 155 S. E., 249.

Nor does it appear that the cheek mentioned in the indictment is the same as the one given to the witness, Max Daniels. Apparently the charge relates to one transaction, while the proof concerns another. S. v. Corpening, 191 N. C., 751, 133 S. E., 14.

Where there is a fatal variance between the indictment and the proof, it is proper to sustain the demurrer to the evidence, or to dismiss the action as in case of nonsuit. C. S., 4643; S. v. Harris, 195 N. C., 306, 141 S. E., 883; S. v. Harbert, 185 N. C., 760, 118 S. E., 6; S. v. Gibson, 170 N. C., 697, 86 S. E., 774.

The point debated on brief as to whether the evidence brings the case within the principle announced in S. v. Crawford, 198 N. C., 522, 152 S. E., 504, is not presented by the record. S. v. Corpening, supra.

Reversed.