State v. Currie , 47 N.C. App. 446 ( 1980 )

267 S.E.2d 390 (1980)

STATE of North Carolina
v.
Wayland D. CURRIE.

No. 804SC31.

Court of Appeals of North Carolina.

July 1, 1980.

Atty. Gen. Rufus L. Edmisten, by Associate Atty. Gen. Grayson G. Kelley, Raleigh, for the State.

Ralph G. Jorgensen, Tabor City, for defendant-appellant.

ROBERT M. MARTIN, Judge.

Defendant contends the court erred in failing to require the State to prove that defendant had possession of the stolen trailer in Duplin County on 21 January 1979 as charged in the indictment. Defendant argues that a nonsuit should have been granted on the ground that there was no proof that defendant possessed the stolen trailer in Duplin County on 21 January 1979 and that defendant was not connected with the trailer until 18 February 1979 in Columbus County and 19 February 1979 in Robeson County.

A fatal variance between the indictment and the proof is properly raised by motion for judgment of nonsuit. State v. Cooper, 275 N.C. 283, 167 S.E.2d 266 (1969). As to the variance in the time of the offense, where time is not of the essence of the offense charged and the statute of limitations is not involved, a discrepancy between the date in the indictment and the date shown by the State's evidence is ordinarily not fatal. G.S. 15-155; G.S. 15A-924(a)(4); State v. Locklear, 33 N.C.App. 647, 236 S.E.2d 376, cert. denied, 293 N.C. 363, 237 S.E.2d 851 (1977); 7 Strong's N.C. Index 3d, Indictment and Warrant § 17.3 (1977).

[T]he time named in a bill of indictment is not usually an essential ingredient of the crime charged, and the State may prove that it was in fact committed on some other date. (Citations omitted). But this salutary rule, preventing a defendant who does not rely on time as a defense from using a discrepancy between the time named in the bill and the time shown by the evidence for the State, cannot be used to ensnare a defendant and thereby deprive him of an opportunity to adequately present his defense.

State v. Whittemore, 255 N.C. 583, 592, 122 S.E.2d 396, 403 (1961).

In the present case, defendant presented an alibi defense relating to 21 January 1979, the date charged in the indictment. Defendant also presented an alibi defense relating to 18 February 1979, the date shown by the State's evidence on which defendant was in possession of the trailer. Therefore, as in Locklear, supra, it is evident defendant did not rely on the date charged in the indictment. The variation in the State's evidence neither deprived defendant of his right adequately to present his defense nor ensnared defendant in any way. Under these circumstances, the variance between the date in the indictment and that shown by the evidence is not prejudicial.

Similarly, we find no merit in defendant's contention that he was entitled to dismissal because the indictment charged that the possession occurred in Duplin County but the proof indicated possession, if any, occurred in Columbus County. The court takes judicial notice that the intersection of Highways 87 and 74 is in Columbus County. "Where an indictment alleges the particular place where an act took place, and such allegation is not descriptive of the offense, and is not required to be proved as laid in order to show the court's jurisdiction. . . a variance which does not mislead accused or expose him to double jeopardy is not material." State v. Martin, 270 N.C. 286, 288, 154 S.E.2d 96, 98 (1967), quoting 42 C.J.S. Indictments and Informations § 256. In the present case, the allegation in the indictment as to place was not descriptive of the offense of felonious possession of stolen property. The bill of indictment contained a specific description of the stolen property which was identified with sufficient particularity as to enable defendant to prepare his defense. Defendant as shown above was not misled by the allegation of possession in Duplin County.

Moreover, in order to sustain a conviction it is not necessary for the State to prove that the crime occurred in the county where the indictment was drawn. State v. Ray, 209 N.C. 772, 184 S.E.2d 836 (1936). We are not unmindful of G.S. 15A-924(a)(3) which requires a criminal pleading to contain a statement of cross reference in each count indicating that the offense charged therein was committed in a designated county. We, however, believe that in a criminal pleading, the statement of the county where the charged offense occurred is essentially one of venue. G.S. 15A-135 provides: "Allegations of venue in any criminal pleading become conclusive in the absence of a timely motion to dismiss for improper venue under G.S. 15A-952." The question of venue was not timely raised by defendant's motion to dismiss made at the close of the State's evidence and the allegations of venue became conclusive under G.S. 15A-135. State v. Morrow, 31 N.C.App. 654, 230 S.E.2d 568 (1976). Thus, if the offense of possession had not been committed in Duplin County, defendant waived his objection by not making a timely motion to dismiss for improper venue.

Defendant further contends that the court erred in failing to instruct the jury that in order to convict the defendant of felonious possession of stolen property under the indictment the possession had to be in Duplin County on 21 January 1979. No such instruction was required as to Duplin County. As above noted the allegation of venue contained in the indictment became conclusive. State v. Morrow, supra. The judge's charge on the elements of felonious possession of stolen goods followed that in N.C.P.I.—Crim. 216.47 and correctly set forth the elements of that offense. In his final mandate, however, the judge went on to instruct the jury as follows:

So, I charge that if you find from the evidence and beyond a reasonable doubt that the 1977 Evans Low Boy trailer was stolen . . . and that on or about January 21, 1979, Wayland D. Currie, the defendant, possessed this Low Boy trailer. . . it would be your duty to return a verdict of guilty of felonious possession of stolen goods.

While not required to charge on the date of the offense, in so doing, the court submitted the question of defendant's guilt on the date charged in the bill of indictment rather than the date as shown by the evidence. State v. Overcash, 182 N.C. 889, 109 S.E.2d 626 (1921). The evidence conclusively shows that if the defendant possessed the property it was on 18 February 1979. There is no evidence defendant possessed the trailer on or about 21 January 1979. This instruction permitted the jury to disregard the evidence that the offense occurred on 18 February 1979, which was the only evidence of when any offense occurred, and convict defendant of possession on 21 January 1979, about which there was no evidence. It deprived defendant of the benefit of his alibi because it allowed jurors to convict even if they believed defendant's alibi for the date on which the State's evidence show possession occurred. State v. Poindexter, 21 N.C.App. 720, 205 S.E.2d 145 (1974).

It is not necessary for us to consider defendant's first assignment of error as it may not occur on a new trial.

New trial.

ARNOLD and WELLS, JJ., concur.