Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

North Carolina v. Smith

Filed: October 16, 1979.

STATE OF NORTH CAROLINA
v.
ESTHER NAOMI SMITH



Appeal by defendant from Ferrell, Judge. Judgment entered 14 December 1978 in Superior Court, Caldwell County. Heard in the Court of Appeals 19 September 1979.

Arnold, Judge. Judges Webb and Wells concur.

Arnold

Defendant first argues that the charges against her should have been dismissed because there was a fatal variance between the allegation of ownership of the property in the arrest warrant and the proof of ownership at trial. This argument is without merit. The warrant in this case charged defendant with stealing the property of "K-Mart Stores, Inc., Lenoir, N.C." Peggy Hammond, an employee of the store, testified that the name of the store is "K-Mart, Inc." or "K-Mart Corporation." Defendant's witness H. F. Kirk, manager of the Lenoir K-Mart, testified that the correct corporate name is "K-Mart Corporation." The cases cited by defendant are clearly distinguishable. In State v. Vawter, 33 N.C. App. 131, 234 S.E.2d 438, cert. denied 293 N.C. 257, 237 S.E.2d 539 (1977), this court found a fatal variance where the indictment charged that the property stolen belonged to "E. L. Kiser (sic) & Company, Inc." but the evidence showed the property belonged to "the Kiger family," with no evidence of corporate ownership. In State v. McKoy, 265 N.C. 380, 144 S.E.2d 46 (1965), the bill of indictment completely failed to allege the ownership of the property stolen. No fatal variance appears in the case sub judice.

Defendant also argues that the case should have been dismissed because the indictment did not sufficiently identify the goods stolen. The warrant alleged the theft of "4 L.P. Stereo Record Albums," with no reference to the names of the albums, their producers, etc. The strongest support for defendant's argument appears to be State v. Nugent, 243 N.C. 100, 89 S.E.2d 781 (1955), where the court held that "meat" was an insufficient description of the goods stolen, and that defendant had a constitutional right to have the indictment state the kind of meat. It appears from that case that a description such as "pork" or "bacon" would have been acceptable. In the present case, we find that the

description "4 L.P. Stereo Record Albums" is analogous to "pork" or "bacon." Where, as here, the issue is not which of a number of stolen records defendant may have taken, but whether she stole any at all, we find that the description in the warrant is sufficiently specific to allow defendant to prepare her defense and to plead a conviction or acquittal as a bar to subsequent prosecution. See id.

Moreover, we find no error in the charge to the jury. The trial court's summary of what the jury must find in order to return a verdict of guilty did not amount to stating the contentions of the State, and thus did not require that the court state defendant's contentions. See State v. Abernathy, 295 N.C. 147, 244 S.E.2d 373 (1978). Nor do we find that the trial court committed the error of charging that the jury must convict both defendants if it found one guilty. See State v. Tomblin, 276 N.C. 273, 171 S.E.2d 901 (1970). As in State v. Tomblin, id. the court here made clear that the guilt or innocence of each defendant must be considered separately, and, as we instructed in State v. Lockamy, 31 N.C. App. 713, 716, 230 S.E.2d 565, 568 (1976), the judge gave "a separate final mandate as to each defendant."

It is undisputed that defendant was eighteen years old at the time of her trial. G.S. 148-49.14 provides that "when a person under 21 years of age is convicted of an offense punishable by imprisonment . . . the court may sentence such person to the custody of the Secretary of Correction for treatment and supervision as a committed youthful offender . . . . If the court shall find that a person under 21 years of age should not obtain the benefit of release under G.S. 148-49.15, it shall make such 'no benefit' finding on the record." This court has held that the trial court must make a finding showing clearly that he considered the "committed youthful offender" option and determined that the defendant would not benefit from it. Matter of Tuttle, 36 N.C. App. 222, 243 S.E.2d 434 (1978); State v. Mitchell, 24 N.C. App. 484, 211 S.E.2d 645 (1975). No such finding appears in the record before us. Accordingly, defendant's sentence is vacated and the case is remanded for resentencing. See State v. Mitchell, id.

Remanded for resentencing.

Disposition

Remanded for resentencing.

19791016

© 1998 VersusLaw ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.