State v. Hanford

• Decision Date: 25 October 1972
• Docket Number: No. 7215SC701,7215SC701
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Thomas Michael HANFORD. STATE of North Carolina v. Jeffrey MARTINDALE.

Page 910

191 S.E.2d 910

16 N.C.App. 353

STATE of North Carolina v. Thomas Michael HANFORD.

STATE of North Carolina v. Jeffrey MARTINDALE.

No. 7215SC701.

Court of Appeals of North Carolina.

Oct. 25, 1972 Certiorari Denied by Supreme Court Dec. 13, 1972.

Atty. Gen., Robert Morgan, by C. Diederich Heidgerd, Associate Atty. Gen., for the State.

W. R. Dalton, Jr., Burlington, for defendant appellant Hanford.

John D. Xanthos, Burlington, for defendant appellant Martindale.

VAUGHN, Judge.

We first respond to the arguments directed to the sufficiency of the bill of indictment and possible variance between the offense charged, the evidence and the judgment. The indictment, in material part, charges that defendants '. . . on the 29th day of November 1971 . . . did unlawfully, wilfully, feloniously and maliciously conspire, confederate and agree with (persons named) to damage occupied real property by the use of an explosive device, to wit: the dwelling and residence of O. F. Hoggard while said dwelling was being occupied by Detective O. F. Hoggard, Mrs. O. F. Hoggard and their three (3) children, against the form of the statute. . . .'

Conspiracy to commit a felony is a felony. Conviction of a felony for which no specific punishment is provided is punishable by fine, by imprisonment for a term not exceeding 10 years or by both in the discretion of the court. G.S. § 14--2. Among other things, however, G.S. § 14--50 provides specific punishment when one 'conspires with another wilfully and maliciously to damage any real or personal property of any kind or nature belonging to another by the use of any explosive or incendiary device or material.' The specific punishment provided for such conspiracy is imprisonment for not more than 15 years, without regard to whether the subject property is occupied. The statute does not require that the owner of the property be named in the indictment but only that it be property belonging to one other than defendant. In State v. Conrad, 275 N.C. 342, 168 S.E.2d 39, the court discussed the differences between G.S. § 14--49 and G.S. § 14--49.1 and states if the property was occupied at the time of the explosion, the indictment should describe the property and name the occupant and also list any other property also injured. This was directed to be done so that if proof of occupancy failed, the jury could consider the lesser included offense of malicious injury to unoccupied property under G.S. § 14--49. In the present case, however, defendants are charged with conspiracy under G.S. § 14--50(b) and not with the actual wilful and malicious injury to the real property in question. We hold that the indictment properly charges the offense punishable under G.S. § 14--50. There is no variance between the indictment and the evidence and judgment was properly entered on the verdict.

Several weeks prior to trial, an order was entered disposing of a number of pretrial motions made by defendants. The following was included in the order (to which no objection was made or exception taken prior to the preparation of the case on appeal): '4. Upon the statement of the Solicitor that the State relies upon the theory of the case as disclosed in the preliminary hearing, and it appearing that counsel for each defendant has been furnished a transcript of the preliminary hearing.' Moreover, defendants did not a bill of particulars is...