State v. McDowell ( 1968 )

161 S.E.2d 769 (1968) 1 N.C. App. 361

STATE of North Carolina
v.
Junior McDOWELL et al.

No. 68SC57.

Court of Appeals of North Carolina.

June 12, 1968.

T. W. Bruton, Atty. Gen., by Millard R. Rich, Jr., Asst. Atty. Gen., for the State.

William H. Steed, Thomasville, for defendant appellant Junior McDowell.

Barnes & Grimes, by Beamer Barnes, Lexington, for defendant appellant Jack Roger Harrison.

BROCK, Judge.

At the outset we note with favor that in the bills of indictment the solicitor used an identifying address for the premises in question. State v. Sellers, 273 N.C. 641, 161 S.E.2d 15; State v. Burgess, 1 N.C. App. 142, 160 S.E.2d 105.

The defendants contend there was a fatal variance between the proof and the charges in the bills of indictment. A fatal variance between the indictment and the proof is properly raised by a motion for judgment as of nonsuit. 2 Strong, N.C. Index 2d, Criminal Law, § 107, p. 660. The defendants assert that they were charged with the second offense described in G.S. § 14-54, and that the State's evidence tended to prove guilt of the first offense described in G.S. § 14-54. The statute reads as follows:

"If any person, with intent to commit a felony or other infamous crime therein, shall break or enter either the dwelling house of another otherwise than by a burglarious breaking; or any storehouse, shop, warehouse, bankinghouse, countinghouse or other building where any merchandise, chattel, money, valuable security or other personal property shall be; or any uninhabited house, he shall be guilty of a felony * * *."

The State contends that the use of the words "or other building" contained in the second portion of the statute makes that portion sufficiently broad to include a dwelling house. However, we note that, upon another assignment of error in this case, the State contends it was not required to offer evidence of "any merchandise, chattel, money, valuable security or other personal property" in the building as provided in the second portion of the statute because the State proved that it was a "dwelling." These two arguments seem to us to lend credence to defendants' arguments that the first and second portions of the statute describe two separate and distinct offenses.

In State v. Mumford, 227 N.C. 132, 41 S.E.2d 201, Justice Barnhill, later Chief Justice, traced the origin of G.S. § 14-54 and points out the various amendments thereto. In 1883 the statute was amended so as to include, in all material respects, the first portion as it now appears. In State v. Mumford, Justice Barnhill stated: "Thus from the beginning, in respect to a dwelling, it is the entering otherwise than by a burglarious breaking, with intent to commit a felony, that constitutes the offense condemned by the Act." It seems clear that the portion of the statute dealing with a dwelling house is distinct from the portion dealing with any storehouse, shop, etc., where any merchandise, etc., shall be; and that both are distinct from the portion dealing with any uninhabited house.

We construe G.S. § 14-54 to condemn three separate felonies as follows: (1) If any person, with intent to commit a felony or other infamous crime therein, shall break or enter the dwelling house of another otherwise than by a burglarious breaking, he shall be guilty of a felony, State v. Slade, 264 N.C. 70, 140 S.E.2d 723; (2) If any person, with intent to commit a felony or other infamous crime therein, shall break or enter any storehouse, shop, warehouse, bankinghouse, countinghouse or other building where any merchandise, chattel, money, valuable security or other personal property shall be, he shall be guilty of a felony; (3) If any person, with intent to commit a felony or other infamous crime therein, shall break or enter any uninhabited house, he shall be guilty of a felony.

The State further urges that the defendants were not misled in the preparation of their defense because there is no evidence to show there were any other structures at the address given in the bills of indictment. Of course, the fact that the evidence does not disclose there were other structures does not exclude the possibility that there in fact were others. But, be that as it may, the State must charge the offense it intends to prove; it is upon the offense charged that a defendant must predicate his plea of former jeopardy. It is the settled rule that the evidence in a criminal case must correspond with the allegations of the indictment which are essential and material to charge the offense. This rule is based upon the requirements that the accused shall be definitely informed as to the charges against him, and that he may be protected against another prosecution for the same offense. 27 Am.Jur., Indictments and Informations, § 177, p. 722.

If these convictions were allowed to stand upon these bills of indictment, the defendants could not successfully plead former jeopardy if later charged in bills of indictment with the offense of breaking or entering the dwelling house of Joel and Juanita Loflin, as provided in the first portion of G.S. § 14-54. The defendants' motions for judgments as of nonsuit upon the grounds of a fatal variance between the offenses charged and the proof should have been allowed.

This disposition makes unnecessary a discussion of the remaining assignments of error.

The State, if it elects, may try the defendants upon bills of indictment properly charging the defendants with the offense as condemned by the first portion of G.S. § 14-54.

Reversed.

MALLARD, C. J., and PARKER, J., concur.