236 S.E.2d 299 (N.C.App. 1977), 779SC62, State v. Ellis

Docket Nº:779SC62.
Citation:236 S.E.2d 299, 33 N.C.App. 667
Party Name:STATE of North Carolina v. Bruce E. ELLIS.
Case Date:July 20, 1977
Court:Court of Appeals of North Carolina

Page 299

236 S.E.2d 299 (N.C.App. 1977)

33 N.C.App. 667

STATE of North Carolina


Bruce E. ELLIS.

No. 779SC62.

Court of Appeals of North Carolina.

July 20, 1977

Page 300

[Copyrighted Material Omitted]

Page 301

Atty. Gen. Rufus L. Edmisten by Associate Atty. Joan H. Byers, Raleigh, for the State.

Rogers & Senter by Bobby W. Rogers, Henderson, for defendant.

BROCK, Chief Judge.

Defendant first assigns error to the trial court's denial of his motion for directed verdict at the close of State's evidence. As ground for his motion defendant argued a fatal variance between the indictment and proof. The indictment placed ownership of the embezzled funds in the "Provident Finance Company." Evidence educed at trial placed ownership of the funds in the "Provident Finance Company of Henderson, Inc." Defendant contends the difference in names constitutes a fatal variance. We disagree.

[33 N.C.App. 669] In an indictment for embezzlement it is necessary to allege ownership of the property in a person, corporation, or other legal entity able to own property. Where the property belongs to a corporation: ". . . the name of the corporation should be given, and the fact that it is a corporation stated, unless the name itself imports a corporation." State v. Thornton, 251 N.C. 658, 662, 111 S.E.2d 901, 903 (1960). General Statute, Chap. 55, Business Corporations Act, Art. 3, Formation, Name and Registered Office, Section 55-12, Corporate name, states: "The corporate name shall contain the wording 'corporation,' 'incorporated,' 'limited' or 'company' or an abbreviation of one of such words." The words "Provident Finance Company" clearly import a corporation; therefore, as to placing ownership in a corporate entity, the indictment is sufficient.

The issue then is whether the variance between "Provident Financing Company" and "Provident Finance Company of Henderson, Inc." is so material as to be fatal. We hold that it is not. The defendant was adequately informed of the corporation which was the accuser and victim. A variance will not be deemed fatal where there is no controversy as to who in fact was the true owner of the property. State v. Wyatt, 254 N.C. 220, 118 S.E.2d 420 (1961).

Defendant next assigns as error the admission of testimony of State's witness Allen. Allen testified concerning a loan transaction in which he made final payment on his account and received a paid-in-full

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receipt from defendant. Allen's payment was not applied to his loan account. Defendant argues that the State should be restricted to proof of the transactions set out in the indictment and that since the dates of the transactions testified to by Allen were not included in those listed in the indictment, admission of the testimony was error. Defendant's argument is without merit.

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