State v. . Nunley

29 S.E.2d 17, 224 N.C. 96, 1944 N.C. LEXIS 281

• Court: Supreme Court of North Carolina
• Decided: March 1, 1944
• Status: Published

Opinion

ScheNCK, J.

Tbe bill of indictment charges tbe larceny of “One Hundred Twenty Four Dollars in money, and valuable papers of tbe value of Two Hundred Dollars of tbe goods, chattels and moneys of one John Nunley.” Tbe evidence of tbe State tending to show larceny or an attempt to commit larceny, if there was such evidence, relates to two suitcases or tbe baggage of John Nunley. His Honor in bis charge refers to tbe baggage, bags or property of tbe prosecuting witness, never to bis money or valuable papers.

In truth, there appears in tbe State’s brief tbe following: “It becomes apparent from tbe evidence and from tbe charge of tbe judge that tbe case was tried upon tbe theory that tbe defendant attempted to steal two suitcases.”

Tbe allegation being that tbe defendant committed larceny of money and valuable papers of John Nunley, and tbe evidence tending to show, at most, an attempt to commit larceny of two suitcases or baggage of John Nunley, there was a fatal variance between tbe allegata and thé probata, of which defect tbe defendant could take advantage under bis exception to tbe disallowance of bis motion for judgment as of nonsuit. S. v. Harbert, 185 N. C., 760, 118 S. E., 6; S. v. Grace, 196 N. C., 280, 145 S. E., 399, and cases there cited.

Reversed.