State v. Ingram , 20 N.C. App. 464 ( 1974 )

201 S.E.2d 532 (1974) 20 N.C. App. 464

STATE of North Carolina
v.
Curtis Moses INGRAM.

No. 7321SC753.

Court of Appeals of North Carolina.

January 9, 1974.

Atty. Gen. Robert Morgan by James E. Magner, Jr., Asst. Atty. Gen., Raleigh, for the State.

G. Ray Motsinger, Winston-Salem, for defendant appellant.

VAUGHN, Judge.

Defendant contends that his motion for dismissal should have been granted since there was a variance between the allegations in the indictment and the State's evidence at trial. The indictment upon which defendant was tried specified "[t]hat Curtis Moses Ingram . . . did unlawfully, willfully and feloniously distribute a controlled substance to Clarence Gooche. . . [and that] the defendant distributed the said substance by selling and transferring the same to Clarence Gooche for the price of approximately $300.00.. . ." The State's evidence tends to prove that defendant sold the heroin to Hiawatha Hairston.

The purpose of an indictment is to give defendant sufficient notice of the charge against him, to enable him to prepare his defense, and to raise the bar of double jeopardy in the event he is again brought to trial for the same offenses. State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897; State v. Dorsett, 272 N.C. 227, 158 S.E.2d 15; State v. Bissette, 250 N.C. 514, 108 S.E.2d 858. An indictment not meeting these standards will not support a conviction. Our Supreme Court has held that since the now superseded Uniform Narcotic Drug Act of 1935 did not expressly eliminate the common law requirement that an indictment specify the name of the person to whom a defendant allegedly sold narcotics, an indictment which does not include the purchaser's name, if known, failed to state sufficient facts to sustain a conviction. State v. Bennett, 280 N.C. 167, 185 S.E.2d 147. The Court reaffirmed the general rule that "``[w]here a sale is prohibited, it is necessary, for a conviction, to allege in the bill of indictment the name of the person to whom the sale was made or that his name is unknown, unless some statute eliminates that requirement. The proof, must, of course, conform to the allegations and establish a sale to the named person or that the purchaser was in fact unknown.' (Emphasis added.)" State v. Bennett, supra, quoting State v. Bissette, supra. The North Carolina Controlled Substances Act under which defendant was charged does not expressly eliminate the requirement that the name of a known purchaser be alleged in the indictment. In any event, where the bill of indictment alleges a sale to one person and the proof tends to show only a sale to a different person, the variance is fatal.

The conviction must be set aside. The State is at liberty to secure another bill of indictment if so advised.

Reversed.

BRITT and PARKER, JJ., concur.