State v. Watson , 272 N.C. 526 ( 1968 )

158 S.E.2d 334 (1968) 272 N.C. 526

STATE of North Carolina
v.
Leroy WATSON.

No. 830.

Supreme Court of North Carolina.

January 12, 1968.

Atty. Gen. T. W. Bruton and Staff Atty. A. Vanore, Raleigh, for the State.

Haywood, Denny & Miller by, James H. Johnson, III, Durham, for defendant.

PER CURIAM.

The defendant's motion for judgment as of nonsuit, made at the conclusion of the State's evidence and renewed at the conclusion of all the evidence, should have been granted. The indictment charged that the defendant forced open "a safe of R. C. H. Harriss." The State's evidence shows that the cabinet forced open on the occasion in question was the property of Harriss-Conners Chevrolet, Inc. This was a fatal variance between the offense charged in the indictment and the proof. State v. Brown, 263 N.C. 786, 140 S.E.2d 413; State v. Stinson, 263 N.C. 283, 139 S.E.2d 558. "It is a rule of universal observance in the administration of criminal law that a defendant must be convicted, if convicted at all, of the particular offense charged in the bill of indictment. The allegation and proof must correspond." State v. Jackson, 218 N.C. 373, 11 S.E.2d 149, 131 A.L.R. 143. "In indictments for injuries to property it is necessary to lay the property truly, and a variance in that respect is fatal." State v. Mason, 35 N.C. 341.

Since the judgment below must be reversed because of the above mentioned variance between the indictment and the proof, it is unnecessary for us to consider, and we do not express any opinion upon, the defendant's further contention that the file cabinet shown to have been broken open was not a "safe" within the meaning of G.S. § 14-89.1.

The solicitor may, if so advised, present another bill of indictment correctly alleging the ownership of the container which he contends was forced open in violation of the above statute.

Reversed.