State v. Rush

197 S.E.2d 891 (1973) 19 N.C. App. 109

STATE of North Carolina
v.
John Garfield RUSH, Jr.

No. 7320SC536.

Court of Appeals of North Carolina.

July 25, 1973.

Atty. Gen. Robert Morgan by Associate Atty. Henry E. Poole, Raleigh, for the State.

Coble, Morton & Grigg by Ernest H. Morton, Jr., Albemarle, for defendant-appellant.

CAMPBELL, Judge.

The defendant was charged in the bill of indictment with a statutory offense. G.S. § 90-95(a)(1) makes it unlawful "[t]o manufacture, distribute or dispense or possess with intent to distribute a controlled substance listed in any schedule of this Article." The offense charged in the bill of indictment was the unlawful distribution of a controlled substance and it specifically set forth the person to whom the unlawful distribution was made. The instructions of the judge to the jury related to, and the verdict of the jury found the defendant guilty of, the offense of possession with intent to distribute a controlled substance. This was not the offense with which the defendant was charged in the bill of indictment. The two offenses, (1) the distribution, and (2) the possession with intent to distribute, are separate offenses. State v. Cameron, 283 N.C. 191, 195 S.E.2d 481 (1973).

The defendant has not been found guilty of the offense with which he was charged, and he was found guilty of an offense for which he was not charged. It therefore follows that the judgment imposed was incorrect.

Judgment arrested.

BRITT and BALEY, JJ., concur.