State v. Corpening

• Decision Date: 12 May 1926
• Docket Number: 482.
• Citation: 133 S.E. 14,191 N.C. 751
• Parties: STATE v. CORPENING.
• Court: North Carolina Supreme Court

133 S.E. 14

191 N.C. 751

STATE v. CORPENING.

No. 482.

Supreme Court of North Carolina

May 12, 1926

Appeal from Superior Court, Caldwell County; Shaw, Judge.

Marvin Corpening was prosecuted for drawing and delivering to another a worthless check, in violation of Pub. Laws 1925, c 14. From a judgment for defendant, the State appeals. No error.

Where there is fatal variance, state cannot amend indictment to fit proof, without defendant's consent.

Criminal prosecution tried upon an indictment charging the defendant with drawing and delivering to another a worthless check in violation of chapter 14, Public Laws 1925.

It is charged in the bill of indictment, inter alia, that the defendant, Marvin Corpening, did, on the 10th day of August 1925, unlawfully and willfully issue and deliver to the Lenoir U-Drive-It Company a worthless check, drawn on the Bank of Lenoir, for the amount of $15, and then and there secured and obtained from the said Lenoir U-Drive-It Company the sum of $15 in money, the goods and chattels of the said Lenoir U-Drive-It Company.

It was shown on the hearing, and the special verdict establishes inter alia, that the defendant, Marvin Corpening, did, on the 20th day of August, 1925, hire an automobile from the Lenoir U-Drive-It Company, and, in settlement for the hire of said automobile, the defendant issued and delivered to the Lenoir U-Drive-It Company a worthless check, drawn on the Bank of Lenoir, in the sum of $15, etc.

Upon the facts found and declared by the jury, a special verdict of not guilty was rendered under appropriate instructions from the court; and, from the judgment entered thereon, the state appeals, assigning error C. S. 4649.

D. G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

STACY C.J.

The primary purpose of this appeal is to test the constitutionality of chapter 14, Public Laws 1925, known as the Worthless Check Act of 1925. But the record will not permit a determination of the question sought to be presented. The courts never anticipate a question of constitutional law in advance of the necessity of deciding it. State v. Edwards, 190 N.C. 322, 130 S.E. 10; Person v. Doughton, 186 N.C. 725, 120 S.E. 481.

There is a fatal variance between the indictment and the proof. The charge is that the defendant issued and delivered to the Lenoir U-Drive-It Company, on August 10, 1925, a worthless check in the amount of $15, and obtained therefor the sum of its equivalent in money. The proof is that the defendant issued and delivered to the Lenoir U-Drive-It Company on August 20, 1925, a worthless check in the amount of $15 to pay for the hire of an automobile. The charge relates to one transaction; the proof to another. State v. Harbert, 185 N.C. 760, 118 S.E. 6.

In every criminal prosecution, the defendant has a constitutional right to be informed of the accusation against him; and it is a rule of universal observance in the administration of the criminal law that a defendant must be convicted, if convicted at all, of the particular offense charged in the bill of indictment.

"The allegations and proof must correspond. It would be contrary to all rules of procedure and violative of his constitutional right to charge him with the commission of one crime and convict him of another and very different one. He is entitled to be informed of the accusation against him and to be tried accordingly." Walker, J., in State v. Wilkerson, 164 N.C. 444, 79 S.E. 893.

In State v. Davis, 150 N.C. 851, 64 S.E. 498, the defendant was charged with obtaining a clay-bank mare by means of a false pretense as to the qualities of a "sorrel horse," and the proof was that he obtained the clay-bank mare in exchange for a bay "saddle horse."...