State v. Hughes , 118 N.C. App. 573 ( 1995 )

455 S.E.2d 912 (1995) 118 N.C. App. 573

STATE of North Carolina,
v.
Sam C. HUGHES, Defendant.

No. 9429SC545.

Court of Appeals of North Carolina.

April 18, 1995.

Atty. Gen. Michael F. Easley by Asst. Atty. Gen. Emmett B. Haywood, for the State.

Roberts Stevens & Cogburn, P.A. by Max O. Cogburn, Asheville, for defendant-appellant.

EAGLES, Judge.

Defendant contends that the trial court erred in allowing the State to amend the bills of indictment and in denying defendant's motion to dismiss. After careful review of the record and briefs, we vacate the judgment.

I.

On 27 January 1992, defendant was indicted on three counts of embezzlement. G.S. 14-90. The bills of indictment charged that defendant embezzled gasoline "belonging to Mike Frost, President of Petroleum World, Incorporated, a North Carolina Corporation having it's [sic] principal place of business in Cliffside, North Carolina." The indictments further stated that defendant "was over 16 years of age and was the consignee of said Petroleum World, Incorporated, a North Carolina Corporation."

At the close of the State's evidence, defendant made a motion pursuant to G.S. 15A-1227 to dismiss for insufficiency of the evidence. Defendant argued that the indictments alleged that the gasoline belonged to Mike Frost. The State's evidence, however, tended to show that the gasoline was actually owned by Petroleum World, Incorporated, a corporation. After the State rested, defendant moved to dismiss based upon a fatal variance. Since the identity of the owner is an essential element of the charge of embezzlement, defendant argued that there was a fatal variance between the indictments as charged and the State's evidence as presented in court. Following an overnight recess, the State moved to amend the indictments by deleting the words "Mike Frost, President" from each of the indictments. The trial court allowed the State's motion to amend. Defendant contends that the trial court erred in allowing the State to amend the indictments. We agree.

An indictment is invalid if it does not allege all of the essential elements of the offense. State v. Johnson, 77 N.C.App. 583, 584, 335 S.E.2d 770, 771 (1985). An indictment for embezzlement must allege ownership of the property in a person, corporation or other legal entity able to own property. State v. Ellis, 33 N.C.App. 667, 669, 236 S.E.2d 299, 301 (1977). When proof of ownership at trial varies from the allegation of ownership in the indictment, the indictment is invalid. State v. Brown, 263 N.C. 786, 140 S.E.2d 413 (1965); State v. Stinson, 263 N.C. 283, 139 S.E.2d 558 (1965); State v. Vawter, 33 N.C.App. 131, 136, 234 S.E.2d 438, 441 (1977).

In State v. Brown, supra, defendant was charged in an indictment of breaking and entering a building occupied by "Stroup Sheet Metal Works, H.B. Stroup, Jr., owner," with intent to steal. The State's proof at trial, however, showed that the building was occupied by "Stroup Sheet Metal Works, Inc.," and there was no evidence that "H.B. Stroup, Jr.," was the owner of Stroup Sheet Metal Works. Our Supreme Court held that there was a fatal variance between the indictment and proof and vacated the judgment.

An indictment may not be amended. G.S. 15A-923(e). An "amendment" is defined to be "any change in the indictment which would substantially alter the charge set forth in the indictment." State v. Price, 310 N.C. 596, 598, 313 S.E.2d 556, 558 (1984) (quoting State v. Carrington, 35 N.C.App. 53, 58, 240 S.E.2d 475, 478 (1978)). Here, the trial court deleted the words, "Mike Frost, President" from the indictments to change ownership from Mike Frost, an individual to Petroleum World, Inc., a corporation. This is a substantial alteration of the indictment prohibited by G.S. 15A-923(e). Accordingly, we vacate the trial court's judgment.

Vacated.

WALKER and McGEE, JJ., concur.