State v. Brown
| Decision Date | 24 February 1965 |
| Docket Number | No. 83,83 |
| Citation | 140 S.E.2d 413,263 N.C. 786 |
| Parties | STATE, v. Joseph T. BROWN, alias Joe Thomas Fitch. |
| Court | North Carolina Supreme Court |
Atty. Gen. T. W. Bruton and Deputy Atty. Gen. Harry W. McGalliard for the State.
G. Edison, Hill, Asheville, for defendant appellant.
The record indicates defendant was tried and convicted at December 1963 Session on a bill of indictment (No. 63-1015) charging other criminal offenses and that judgment imposing a prison sentence was then pronounced.
The record contains an affidavit of defendant in which he states: 'That he is the defendant in the above numbered (Nos. 63-1015 and 60-1016) cases; that he was found guilty in all counts and from the imposition of the sentence in each count he gave notice of appeal to the Supreme Court in open court; that he was represented by Carl Loftin in Case No. 63-1015 but does not desire his services in connection with his appeal; that he was represented by Robert E. Riddle in Case No. 63-1016 but does not desire his services in connection with his appeal; that he wishes to appeal in Forma Pauperis and handle his own appeal in each case.'
In No. 63-1015, this Court, allowing the Attorney General's motion therefor, dismissed the appeal for failure to comply with Rule 17, Rules of Practice in the Supreme Court, 254 N.C. 783, 793.
In No. 63-1016, this Court, treating a communication from defendant as a petition for certiorari, ordered, inter alia, that the case be 'remanded to Buncombe County to the end that counsel be appointed to bring up defendant's appeal.' Thereafter, G. Edison Hill, Esquire, was appointed counsel to perfect defendant's appeal.
As indicated, the first and second counts in the bill of indictment relate to a building occupied by and to property of 'Stroup Sheet Metal Works, H. B. Stroup, Jr., owner.' The only evidence purporting to identify the occupant of the place of business and the ownership of the property is the testimony of Jack Arden. Mr. Arden testified: 'I am Secretary-Treasurer of the Stroup Sheet Metal Works, Inc.' It appears from this testimony that the occupant and owner is a corporation. The evidence contains no reference to 'H. B. Stroup, Jr.,' referred to in the indictment as owner of Stroup Sheet Metal Works. Thus, the record discloses a fatal variance between the indictment and the proof. State v. Stinson, 263 N.C. 283, 139 S.E.2d 558, and cases cited.
The record before us does not show defendant's trial counsel moved to dismiss as in case of...
To continue reading
Request your trial
-
State v. Campbell
...at 134, 676 S.E.2d at 589. As summarized in Gayton-Barbosa , we first consider "the Supreme Court's decision" in State v. Brown, 263 N.C. 786, 787-88, 140 S.E.2d 413, 413 (1965), wherethe Supreme Court granted relief on appeal as the result of a fatal variance relating to the ownership of a......
-
State v. Miller, 272--B
...into and entered was owned by 'Friedman's Jewelry, Incorporated,' with its home office located in Augusta, Georgia. In State v. Brown, 263 N.C. 786, 140 S.E.2d 413, the indictment charged defendant in the first count with feloniously breaking into and entering a certain building occupied by......
-
State v. Gayton-Barbosa
...felonious larceny conviction on the merits despite the absence of a contemporaneous objection at trial. In State v. Brown, 263 N.C. 786, 787-88, 140 S.E.2d 413, 413 (1965), the Supreme Court granted relief on appeal as the result of a fatal variance relating to the ownership of allegedly st......
-
State v. Eppley
...in the indictment to be the owner of it, the variance is fatal and a motion for judgment of nonsuit should be allowed. State v. Brown, 263 N.C. 786, 140 S.E.2d 413; State v. Law, 227 N.C. 103, 40 S.E.2d 699; State v. Weinstein, supra. Consequently, the motion of each defendant for judgment ......