State v. Daye

• Decision Date: 16 October 1974
• Docket Number: No. 7414SC604,7414SC604
• Citation: 23 N.C.App. 267,208 S.E.2d 891
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Matthew DAYE.

Page 891

208 S.E.2d 891

23 N.C.App. 267

STATE of North Carolina v. Matthew DAYE.

No. 7414SC604.

Court of Appeals of North Carolina.

Oct. 16, 1974.

Atty. Gen. James H. Carson, Jr., by Asst. Atty. Gen. Norman L. Sloan, Raleigh, for the State.

Loflin, Anderson & Loflin, by Ann F. Loflin, Durham, for the defendant.

BROCK, Chief Judge.

Defendant contends that the trial court committed error when it failed to grant defendant's motion for nonsuit at the conclusion of all the evidence due to fatal variance between the allegations of the indictment and the proof offered at trial. The indictment, as it appears in the record on appeal, charges:

'That Matthew Daye late of the County of Durham on the 9th day of July 1973 with force and arms, at and in the County aforesaid, did unlawfully, wilfully and feloniously utter as true to Central Carolina Bank and Trust Company, Durham, North Carolina a forged check drawn on the Wachovia Bank & Trust Company, NA, an incorporated Bank of North Carolina in the amount of $102.27 payable to one Vernon Respass, Jr., and dated July 4, 1973. The defendant acted for the sake of gain and to defraud Central Carolina Bank and Trust Company, Wellons Village, Durham, North Carolina and Vernon Respass, Jr., and with the knowledge that the instrument which was capable of offecting fraud was forged, against the form of the statute in such case made and provided and against the peace and dignity of the State.'

It is apparent that the bill of indictment charges the defendant with the crime of uttering a forged check. Yet the evidence tends to show that the drawer, the drawee, the payee, the date, and the amount are perfectly valid. The evidence offered at trial tended to show that the defendant uttered the check with the Forged endorsement of Vernon Respass, the payee. This is an act wholly different from the act of uttering a forged paper. The first sentence of G.S. § 14--120 makes it illegal to utter a forged paper; the second sentence of G.S. § 14--120 makes it illegal to utter an instrument with a forged endorsement. The offenses are separate and distinct felonies.

'Where there is a fatal variance, it may be taken advantage of by motion for judgment as of nonsuit. State v. Hicks, 233 N.C. 31, 62 S.E.2d 497; State v. Kimball, 261 N.C. 582, 135 S.E.2d 568; State v. Cooper, 275 N.C. 283, 286, 167 S.E.2d 266. It is a rule of universal observance in the administration of 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 the proof must correspond. State v. White, 3 N.C.App. 31, 164 S.E.2d 36; State v. Watson, 272 N.C. 526, 158 S.E.2d 334.' State v. Muskelly, 6 N.C.App. 174, 176, 169 S.E.2d 530, 532. The trial court should have granted the defendant's motion for nonsuit.

Although the defendant's first contention is dispositive of his case on appeal, we believe that the defendant's second contention has merit and warrants consideration. The defendant contends that the indictment, as framed, is insufficient in that it neither sets out the check as an attachment nor describes the check in full and sufficient detail.

An indictment must allege all the essential elements of the offense with sufficient certainty so as to (1) identify the offense, (2) protect the accused from being twice put in jeopardy for the same offense, (3) enable the accused to prepare for trial, and (4) support judgment upon conviction or plea. State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897, cert. denied, In re Whichard, 403 U.S. 940, 91 S.Ct. 2258, 29 L.Ed.2d 719. Generally an indictment for a statutory offense is sufficient if the indictment is framed, either literally or substantially, in the words of the statute. Where the words of the statute are insufficient to apprise the accused of the charge against him, the indictment must be supplemented so that there can be no doubt about the specific offense charged. State v. Hord, 264 N.C. 149, 141...