State v. Harris

• Citation: 141 S.E. 883,195 N.C. 306
• Decision Date: 14 March 1928
• Docket Number: 160.
• Parties: STATE v. HARRIS.
• Court: North Carolina Supreme Court

141 S.E. 883

195 N.C. 306

STATE v. HARRIS.

No. 160.

Supreme Court of North Carolina

March 14, 1928

Appeal from Superior Court, Greene County; Harris, Judge.

Robert Harris was convicted of larceny, and he appeals. Reversed.

Criminal prosecution tried upon an indictment charging the defendant and another with larceny; verdict, guilty; judgment, imprisonment in the state prison for a term of not less then 18 months nor more than 4 years. Defendant appeals, assigning errors.

Where evidence showed tobacco, if stolen, belonged to party other than alleged owners named in indictment, there was fatal variance.

R. H. Taylor and George M. Lindsay, both of Snow Hill, for appellant.

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

STACY, C.J.

The bill of indictment charges the defendant and another with the larceny of "700 pounds of leaf tobacco, of the value of over $20, of good chattels and moneys of one Berry Haywood, Lucinda Speight, and Mrs. Minnie Herring." All the evidence adduced on the hearing tends to show that the tobacco, if stolen, was the property of Berry Speight. There is a fatal variance between the indictment and the proof; the charge relates to one offense, the proof to another. State v. Harbert, 185 N.C. 760, 118 S.E. 6; State v. Gibson, 170 N.C. 697, 86 S.E. 774.

The verdict will be set aside, the action dismissed as to the appealing defendant, and the solicitor allowed to send another bill, if so advised.

Reversed.