State v. Washington
Decision Date | 17 November 1981 |
Docket Number | No. 815SC549,815SC549 |
Citation | 54 N.C.App. 683,284 S.E.2d 330 |
Parties | STATE of North Carolina v. Beatrice WASHINGTON. |
Court | North Carolina Court of Appeals |
Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. R. Darrell Hancock, Raleigh, for the State.
Billy H. Mason, Wilmington, for defendant-appellant.
Defendant appeals the denial of the motion for nonsuit. State v. Cooper, 275 N.C. 283, 286-87, 167 S.E.2d 266, 268 (1969). At issue is whether the offense charged conforms with the evidence presented. We hold that it does not.
The governing statute is G.S. 148-45. G.S. 148-45(b) provides that any convicted felon in the custody of the North Carolina Department of Correction who escapes from the State Prison System, "shall for the first offense, except as provided in subsection (g) of this section, be guilty of a felony...." G.S. 148-45(g) states the following:
In the present cause, the indictment and charge followed the language of G.S. 148-45(b). The evidence, however, supports a finding of a violation, if any, of G.S. 148-45(g)(1).
The Supreme Court was faced with a similar situation in State v. Kimball, 261 N.C. 582, 135 S.E.2d 568 (1964). The statute involved there was a forerunner of the present G.S. 148-45. G.S. 148-45(a) made it unlawful for any prisoner serving a sentence in the State Prison System to escape. It provided the same varying penalties for misdemeanants and felons as does the current G.S. 148-45(a) and (b). G.S. 148-45(b), added in 1963, stated almost verbatim the current (g)(1) provision regarding inmates on work-release:
In Kimball, Judge Sharp (later Chief Justice) wrote the following:
261 N.C. at 584, 135 S.E.2d at 570. The Court then stated that upon...
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...was a fatal variance between the indictment and the evidence presented at trial. The State acknowledges that State v. Washington, 54 N.C.App. 683, 685, 284 S.E.2d 330, 331 (1981), reversed an escape conviction when the indictment tracked the statutory language of N.C. Gen. Stat. § 148-45(b)......
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