State v. Muskelly
| Decision Date | 17 September 1969 |
| Docket Number | No. 6919SC379,6919SC379 |
| Citation | 6 N.C.App. 174,169 S.E.2d 530 |
| Parties | STATE of North Carolina v. Robert Lee MUSKELLY and Reuben Allen, Jr. |
| Court | North Carolina Court of Appeals |
Atty. Gen. Robert Morgan, by Staff Attorney Carlos W. Murray, Jr., for the State.
Johnson, Davis & Horton, by Clarence E. Horton, Jr., Concord, for defendant appellant Muskelly.
M. B. Sherrin, Jr., Concord, for defendant appellant Allen.
Defendants contend that their motions for judgment as of nonsuit as to Case Numbers 12--428 and 12--432, the alleged assault upon Pless, should have been granted. The pertinent parts of these indictments read:
'* * * (D)id, unlawfully, wilfully and feloniously assault one Arthur Nell Pless with a certain deadly weapon, to wit: a pistol with * * * upon said Arthur Nell Pless to wit: by shooting him with said pistol * * *.'
The defendants' contention is based upon an alleged fatal variance between the allegations of the indictment and proof offered to the trial. The evidence at the trial revealed that although shots were fired by the defendants, Pless was not struck by a bullet but was in fact beaten about the head with a pistol.
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.
What then were the defendants in the present case charged with? The words of the indictment are clear, 'feloniously assault * * * with a certain deadly weapon, to wit: a pistol.' In the words of this Court in State v. White, Supra, the offenses were 'accurately charged.' All that is required in a warrant or bill of indictment is that it be sufficient in form to express the charge against the defendant in a plain, intelligible and explicit manner, and to enable the court to proceed to judgment and thus bar another prosecution for the same offense. State v. Anderson, 259 N.C. 499, 130 S.E.2d 857; 4 Strong, N.C.Index 2d, Indictment and Warrant, § 9, pp. 347, 348.
In this case, the gist of the offense charged against these defendants is the assault with a deadly weapon with intent to kill resulting in serious bodily injury but not resulting in death. If when stripped of nonessential words, the indictment or warrant is sufficient to charge the offense, it is sufficient to survive a motion to quash. State v. Camel, 230 N.C. 426, 53 S.E.2d 313. The use of superfluous words in a bill of indictment should be disregarded. The bill is complete without evidentiary matters descriptive of the manner and means by which the offense was committed. A verdict of guilty, or not guilty, is only as to the offense charged, not of surplus or evidential matters alleged. State v. Wynne, 151 N.C. 644, 65 S.E. 459. In State v. Stallings, 267 N.C. 405, 148 S.E.2d 252, it was held that if an averment in an indictment or warrant is not necessary in charging the offense, it may be treated as surplusage. Thus, in that case where the defendant was being tried for escape from legal custody, words in the indictment referring to the felony for which the defendant was serving time were regarded as surplusage. Justice Bobbitt stated that the indictment is sufficient if it alleges that the defendant 'was serving time for a felony' without naming the particular felony.
Therefore, the words that these defendants allege created a fatal variance, 'to wit: by shooting him with said pistol,' were nonessential words in properly charging them with the offense and are thereby to be regarded as surplusage.
The trial court therefore properly denied the defendants' motion for judgment as of nonsuit, and the trial proceeded upon valid indictments.
Further assignments of error by the defendants are directed at alleged errors in the instructions to the jury. Defendants assign as prejudicial and erroneous the following instruction relating to intent to kill:
'And, so, intent to kill is the intent which exists in the mind of a person at the time he commits the assault, or criminal act, intentionally without justification or excuse, to kill his victim, or to inflict great bodily harm.'
Defendants contend that under this instruction the jury would be allowed to find the defendants...
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State v. Rhome
...of the particular offense charged in the bill of indictment. The allegations and the proof must correspond." State v. Muskelly, 6 N.C.App. 174, 176, 169 S.E.2d 530, 532 (1969) (citations The challenged portions of the indictment in question read as follows: [T]he defendant named above unlaw......
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In re R.P.M.
...the sufficiency of the indictment." Id. (citing State v. Taylor, 280 N.C. 273, 185 S.E.2d 677, 680 (1972)); see State v. Muskelly, 6 N.C.App. 174, 176, 169 S.E.2d 530, 532 (1969). Moreover, a "defendant . . . [has] the right to be charged by a lucid prosecutive statement which factually par......
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State v. Hinton
...and the proof must correspond." State v. Rhome, 120 N.C.App. 278, 298, 462 S.E.2d 656, 670 (1995) (quoting State v. Muskelly, 6 N.C.App. 174, 176, 169 S.E.2d 530, 532 (1969)). We conclude that the trial court did not err by denying defendant's motion for jury instructions on the offense of ......
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State v. Pelham
...and involve an essential element. State v. Pickens, 346 N.C. 628, 488 S.E.2d 162 (1997). In the case of State v. Muskelly, 6 N.C.App. 174, 177, 169 S.E.2d 530, 532 (1969), this Court held that the phrase "to wit: by shooting him with said pistol" was surplusage and should be disregarded. Th......