State v. Stallings, 179
| Decision Date | 25 May 1966 |
| Docket Number | No. 179,179 |
| Citation | 148 S.E.2d 252,267 N.C. 405 |
| Parties | STATE, v. Jackie E. STALLINGS. |
| Court | North Carolina Supreme Court |
Atty. Gen. T. W. Bruton and Asst. Atty. Gen. James F. Bullock, for the State.
Dwight L. Cranford, Roanoke Rapids, for defendant appellant.
Defendant assigns as error the denial of his motion for judgment as of nonsuit. There was ample evidence to support a finding that defendant was an escapee from Caledonia Prison. Discussion is limited to defendant's contention that the evidence fails to support the allegations of the indictment relating to the crime for which defendant was serving a sentence at the time of the alleged escape.
The indictment, as the court explained to the jury, is based on the following portion of G.S. § 148--45: 'Any prisoner serving a sentence imposed upon conviction of a felony who escapes or attempts to escape from the State prison system shall for the first such offense be guilty of a felony * * *.' No question is presented as to the sufficiency of the indictment.
In State v. Jordan, 247 N.C. 253, 100 S.E.2d 497, the indictment charged that the defendant 'did unlawfully, wilfully and feloniously escape and attempt to escape from the State Prison System, said prisoner having been previously convicted of escape,' etc. The opinion states:
The present indictment charges that defendant escaped from lawful custody while 'serving a sentence for the crime of robbery with force, which is a felony under the laws of the State of North Carolina, imposed at the April Criminal 1959 Term Superior Court, Wake County,' etc. We are of the opinion, and so hold, that an indictment charging a defendant with escape from lawful custody while serving a sentence imposed by judgment pronounced in the superior court of a named county for a felony is sufficient without naming the particular felony for which defendant was imprisoned. The reference to 'the crime of robbery with force' is surplusage. 'Allegations, without which an indictment or information for escape, or a related offense, is adequate, are deemed to be surplusage.' 30A C.J.S. Escape § 25(6). The material averment is that defendant was serving a sentence imposed by judgment pronounced in the Superior Court of Wake County for a felony. Neither allegation nor proof that defendant's imprisonment was for 'the crime of robbery with force' was prerequisite to conviction. To establish the alleged crime, it was necessary to prove that defendant escaped when serving a sentence imposed by the Superior Court of Wake County for A felony.
To establish defendant's alleged escape was from lawful custody, the State offered evidence that defendant was in the custody of M. L. Stallings, Superintendent of State Prison Camp No. 400, under authority of commitment No. 3468 entitled 'State v. Jack Stallings.' The portion thereof admitted in evidence recites that 'the above named defendant' was brought to trial at the April 1959 Criminal Term of the Superior Court of Wake County, that he was convicted and that judgment was pronounced. In lieu of omitted portions, the following appears: '(The type of offense and...
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State v. Williams
...as surplusage even if the state and the trial judge mistakenly believe the matter to be an essential element. See State v. Stallings, 267 N.C. 405, 148 S.E.2d 252 (1966). The language in Midyette instead refers to those situations in which the state elects to prosecute on a legal theory whi......
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...... (quoting State v. Stallings, 267 N.C. 405, 407, 148 S.E.2d 252, 253 (1966)). An indictment for obtaining property by false pretenses need not allege the name ......
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State v. Pickens
...averment in an indictment is not necessary in charging the offense, it will be " 'deemed to be surplusage.' " State v. Stallings, 267 N.C. 405, 407, 148 S.E.2d 252, 253 (1966) (quoting 30A C.J.S. Escape § 25(6), at 900 (1965)). In this case, the essential element of discharging a firearm wa......
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State v. Moore
...Any allegations in a bill of indictment over and above that which is held sufficient may be treated as surplusage. State v. Stallings, 267 N.C. 405, 148 S.E.2d 252. In State v. Haynes, supra, this Court '. . . The indictment in this case neither alleged the killing was done after premeditat......