State v. Bennett
| Decision Date | 15 December 1971 |
| Docket Number | No. 117,117 |
| Citation | 280 N.C. 167,185 S.E.2d 147 |
| Parties | STATE of North Carolina v. Phillip Lance BENNETT. |
| Court | North Carolina Supreme Court |
Atty. Gen. Robert Morgan, Associate Atty. Walter E. Ricks, III, Raleigh, for the State.
Harold P. Laing, Wilmington, for defendant appellant.
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: (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 (Effective October 1, 1971, G.S. § 18--17 was repealed by N.C.Sess.Laws, Ch. 872, § 3 (1971).)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 Durg 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...
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State v. Jones
...861. We have extended the Bissette rule to apply to a statute prohibiting the possession or sale of narcotics. State v. Bennett, 280 N.C. 167, 169, 185 S.E.2d 147, 149 (1971). Therefore, it is a logical extension to also apply the Bissette rule to the crime of trafficking in stolen identiti......
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State v. Wynn, No. COA09-1208 (N.C. App. 6/1/2010)
...failed to state sufficient facts to sustain a conviction." Ingram, 20 N.C. App. at 466, 201 S.E.2d at 534 (citing State v. Bennett, 280 N.C. 167, 185 S.E.2d 147 (1971)). Arresting judgment in the case, Bennett reaffirmed the general rule: "`Where a sale is prohibited, it is necessary, for a......
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State v. Pulliam, 8515SC404
...to whom the defendant allegedly sold or delivered. State v. Ingram, 20 N.C.App. 464, 201 S.E.2d 532 (1974), citing State v. Bennett, 280 N.C. 167, 185 S.E.2d 147 (1971). A defendant must be convicted, if at all, of the particular offense charged in the indictment. State v. Faircloth, 297 N.......
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State v. Wall
...sold or delivered, if that person is known. State v. Ingram, 20 N.C.App. 464, 466, 201 S.E.2d 532, 534 (1974), citing State v. Bennett, 280 N.C. 167, 185 S.E.2d 147 (1971). A defendant must be convicted, if at all, of the particular offense charged in the indictment. State v. Faircloth, 297......