State v. Hinton

PARKER, Judge.

In Case No. 71CR40341 we find no error. There was ample evidence of the assault charged in the indictment to require submission of the case to the jury, and the sentence imposed was supported by the verdict which found defendant guilty of the lesser included offense described in G.S. 14-32 (b). However, the sentence imposed in Case No. 71CR40341 should be credited with the time defendant spent in confinement awaiting trial as a result of the charge against him in that case. G.S. 15-176.2.

In Case No. 71CR40342 the indictment charged defendant with the armed robbery of Elizabeth Putman Blake. All of the evidence in the record discloses, and the State’s brief concedes, that it was only upon Honoré Parker Holmes that a demand for money was made. There was no evidence from which the jury could find that defendant took or attempted to take any property from Mrs. Blake. Rather, all of the evidence tends to support the conclusion that Mrs. Blake stepped into a robbery already in progress and that defendant shot her, not in an attempt to rob her, but because she sprayed gas in his face. Because of the fatal variance between the indictment and the proof, defendant’s motion for nonsuit in Case No. 71CR40342 should have been allowed. State v. Bell, 270 N.C. 25 , 153 S.E. 2d 741 .

The result is:

In Case No. 71CR40341 the judgment and commitment are modified in that the sentence imposed must be credited with the *256 time defendant spent in confinement awaiting trial as a result of the charge against him in that case, and accordingly the judgment in that case is so

Modified and affirmed.

In Case No. 71CR40342 the judgment is

Reversed.

Chief Judge Mallard and Judge Morris concur.