State v. Hicks

62 S.E.2d 497 (1950)

233 N.C. 31

STATE v. HICKS et al.

No. 505.

Supreme Court of North Carolina.

December 13, 1950.

*499 Harry McMullan, Atty. Gen., and Ralph Moody, Asst. Atty. Gen., for the State.

Ralph V. Kidd and J. C. Sedberry, Charlotte, for defendant, Sterling L. Hicks.

DENNY, Justice.

The appellant assigns as error the failure of the trial judge to sustain his demurrer to the evidence and allow his motion for judgment as of nonsuit interposed at the close of the State's evidence, and renewed at the close of all the evidence. This assignment of error is bottomed on the contention that there is a fatal variance between the charge in the bill of indictment upon which the appellant stands convicted and in the proof submitted to the jury.

The only evidence offered by the State, tending to establish a conspiracy to maliciously damage property, was the testimony of the defendant Lovell, who entered a plea of guilty and was used as a witness for the State. Lovell testified that he was employed by Hicks for a consideration of $250.00 to blow up the transformer. There is no evidence of an agreement to damage the real property of the Jefferson Standard Broadcasting Company. The transformer, or power mat, which serves the Broadcasting Company, according to the State's evidence, is not the property of the Jefferson Standard Broadcasting Company, but, on the contrary, is the property of the Duke Power Company.

In the case of State v. Mason, 35 N.C. 341, Ruffin, C. J., in speaking for the Court, said: "In indictments for injuries to property it is necessary to lay the property truly, and a variance in that respect is fatal. "State v. Hill, 79 N.C. 656; State v. Sherrill, 81 N.C. 550.

In the last cited case the defendant and others were indicted for trespass upon the premises of one Harris, whereas the evidence revealed that the trespass was upon the premises of one Lewis. This was held to be a fatal variance.

There is a fatal variance between the indictment and the proof on this record. The indictment charges the defendants with conspiring to maliciously commit damage and injury to and upon the real property of the Jefferson Standard Broadcasting Company. The proof is to the effect that they conspired to maliciously commit damage and injury to the property of the Duke Power Company. State v. Nunley, 224 N.C. 96, 29 S.E.2d 17; State v. Corpening, 191 N.C. 751, 133 S.E. 14; State v. Harbert, 185 N.C. 760, 118 S.E. 6; State v. Gibson, 169 N.C. 318, 85 S.E. 7; State v. Davis, 150 N.C. 851, 64 S.E. 498.

The question of variance in a criminal action may be raised by motion for judgment as of nonsuit, or by demurrer to the evidence. State v. Law, 227 N.C. 103, 40 S.E.2d 699; State v. Grace, 196 N.C. 280, 145 S.E. 399; State v. Harris, 195 N.C. 306, 141 S.E. 883; State v. Harbert, supra; State v. Gibson, supra.

The motion for judgment as of nonsuit should have been allowed with leave to the Solicitor to secure another bill of indictment, if so advised. State v. Law, supra; State v. Jackson, 218 N.C. 373, 11 S.E.2d 149, 131 A.L.R. 143; State v. Gibson, supra.

Reversed.