State v. Bennett , 280 N.C. 167 ( 1971 )

185 S.E.2d 147 (1971) 280 N.C. 167

STATE of North Carolina
v.
Phillip Lance BENNETT.

No. 117.

Supreme Court of North Carolina.

December 15, 1971.

Atty. Gen. Robert Morgan, Associate Atty. Walter E. Ricks, III, Raleigh, for the State.

Harold P. Laing, Wilmington, for defendant appellant.

SHARP, Justice.

Defendant brings forward five assignments of error. Only the fifth merits discussion. It raises the question whether the second count in the bill of indictment states facts sufficient to charge defendant with the commission of a crime. Specifically, the inquiry is: In a count charging the sale of narcotics must the indictment allege the name of the purchaser?

The rule is stated in State v. Bissette, 250 N.C. 514, 517-18, 108 S.E.2d 858, 861: "Where 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.)

In 1913, by N.C.Sess.Laws, Ch. 44, § 6, the General Assembly provided that in indictments charging the unlawful sale of intoxicating liquors it should not be necessary to allege a sale to a particular person. This enactment, duplicated in N.C.Sess.Laws, Ch. 1, § 16 (1923) was later codified as G.S. § 18-17. (Effective October 1, 1971, G.S. § 18-17 was repealed by N.C.Sess.Laws, Ch. 872, § 3 (1971).) Prior to the 1913 Act this Court had consistently held that in an indictment for selling spirituous liquors it was necessary to aver that the sale was made to some particular person or persons, or to some person or persons unknown. State v. Blythe, 18 N.C. 199; State v. Faucett, 20 N.C. 239; State v. Stamey, 71 N.C. 202; State v. Pickens, 79 N.C. 652; State v. Tisdale, 145 N.C. 422, 58 S.E. 998; State v. Dowdy, 145 N.C. 432, 58 S.E. 1002. See also State v. Stokes, 274 N.C. 409, 163 S.E.2d 770; State v. McKoy, 265 N.C. 380, 144 S.E.2d 46.

G.S. § 90-88 (1965), the statute under which defendant stands indicted, makes it unlawful, inter alia, for any person to possess or sell any narcotic, except as authorized by the Uniform Narcotic Drug Act of 1935, G.S. §§ 90-86 to -113.7. The Act contains no modification of the common-law requirement that the name of the person, to whom the accused allegedly sold narcotics unlawfully, be stated in the indictment when it is known. Therefore, the second count in the indictment upon which defendant was tried fails to state facts sufficient to sustain his conviction. His motion to quash should have been allowed, and the judgment pronounced thereon must be arrested. We note that the Uniform Narcotic Drug Act of 1935 was rewritten as the North Carolina Controlled Substances Act by N.C.Gen.Sess.Laws, Ch. 919 (1971), to become effective 1 January 1972.

As to the first count, which charges defendant with the unlawful possession of narcotics, time and place are not essential elements of the offense. The jurisdiction of the court was established by the averment that the crime occurred in New Hanover County. "[A]fter jurisdiction was established, the place of the crime became immaterial. The indictment charged the offense in a plain, intelligible and explicit manner, and contained averments sufficient to enable the court to proceed to judgment and thus bar a subsequent prosecution for the same offense." State v. Rogers, 273 N.C. 208, 211, 159 S.E.2d 525, 528. In defendant's conviction upon the charge of possession of narcotics we find no error, and the judgment on that count is affirmed.

As to the second count of the bill charging the unlawful sale of narcotics, the judgment based thereon is arrested.

The decision of the Court of Appeals is

Affirmed in part; reversed in part.