State v. Law

Stacy, C. J.

Tbe question for decision is wbetber there is a fatal variance between tbe indictment and tbe proof.

Stare decisis would seem to require an affirmative answer.

Conceding that tbe automobile in question, even if originally tbe property of one of tbe defendants, was tbe subject of larceny while in tbe custody of tbe officer who bad seized it under authority of law, still it does not follow that its ownership was properly laid in tbe City of Winston-Salem. Tbe City bad no property right in it, special or otherwise. Only tbe officer who seized tbe property was authorized to bold it, take and approve bond for its return “to tbe custody of said officer,” and to bold it subject to tbe orders of tbe court. G. S., 18-6. A conviction under tbe present bill would not perforce protect tbe defendants against another prosecution with tbe right to tbe property laid in tbe seizing officer or in tbe custody of tbe law.

S. v. Bell, 65 N. C., 313 . Tbe City of Winston-Salem, no doubt, owns a number of automobiles, such as would fit tbe description in tbe bill, but none of these was stolen. “Tbe object of an indictment is to inform tbe prisoner with what be is charged, as well to enable him to make bis defense as to protect him from another prosecution for tbe same criminal act.”

S. v. Carlson, 171 N. C., 818 , 89 S. E., 30 .

Usually a fatal variance results, in larceny cakes, where title to tbe property is laid in one person and tbe proof shows it to be in another.

S. v. Jenkins, 78 N. C., 478 . “In all cases tbe charge must be proved as laid.”

S. v. Bell, supra.

Tbe question of variance may be raised by demurrer to tbe evidence or by motion to nonsuit. “It is based on tbe assertion, not that there is no proof of a crime having been committed, but that there is none which tends to prove that tbe particular offense charged in tbe bill has been committed. In other words, tbe proof does not fit tbe allegation, and, therefore, leaves tbe latter without any evidence to sustain it. It challenges tbe right of tbe State to a verdict upon its own showing, and asks that tbe court, without submitting tbe case to tbe jury, decide, as matter of law, that tbe State has failed in its proof”

—Walker, J., in S. v. Gibson, 169 N. C., 318 , 85 S. E., 7 . To like effect are tbe decisions in S. v. *105 Weinstein, 224 N. C., 645 , 31 S. E. (2d), 920 ;

S. v. Jackson, 218 N. C., 373 , 11 S. E. (2d), 149 ;

S. v. Harris, 195 N. C., 306 , 141 S. E., 883 ;

S. v. Harbert, 185 N. C., 760 , 118 S. E., 6; S. v. Nunley, 224 N. C., 96 , 29 S. E. (2d), 17 ;

S. v. Davis, 150 N. C., 851 , 64 S. E., 498 ;

S. v. Hill, 79 N. C., 656 .

The present conviction will be set aside, the demurrer to the evidence sustained, and the solicitor allowed to send another bill, if so minded.

Reversed.