Appeal by defendant from Freeman, Judge. Judgment entered 22 January 1981 in Superior Court, Stanly County. Heard in the Court of Appeals 11 November 1981.
Webb, Judge. Judges Wells and Hill concur.
The defendant has brought forward 18 assignments of error. He first argues that it was error not to dismiss the case or otherwise impose sanctions upon the State for the failure of the State to comply with the defendant's motion for discovery. The defendant made a request for voluntary discovery pursuant to G.S. 15A-902 on 10 November 1980. He then filed a motion for discovery pursuant to G.S. 15A-903 on 2 December 1980. This motion was not heard until the case was called for trial. When the case was called for trial the court heard the motion in the absence of the jury panel and before a plea was taken. At that time the State furnished the defendant with certain items for which the motion for discovery had been made. The defendant's attorney then announced: "Your Honor, I think that they have more or less complied at this time with our requests." The defendant's attorney stated further that he presumed the agent who analyzed the substance would testify and he did not anticipate wanting to make an examination of the substance "unless we find later that there is some great discrepancy . . . But we would like to sort of leave that open in case that something happens that this particular officer is not here to testify who ran the results of these tests." The defendant's attorney stated that for the record he made a motion to dismiss or in the alternative a motion to continue on the ground the State had not complied with the motion for discovery. These motions were denied.
After the trial had commenced the State called T. H. McSwain, a chemist for the State Bureau of Investigation, to testify as to the results of the analysis of the substance in the package. A voir dire hearing was held out of the presence of the
jury. Mr. McSwain testified that at the time he examined the substance it was not of the consistency that it was in the courtroom. He testified when he examined it, it was crumbly but was more or less like a wad of gum in the courtroom. The defendant renewed his motion to dismiss or to continue the case on the ground the State had not complied with the motion for discovery. The court denied the defendant's motion.
We hold that the court did not abuse its discretion under G.S. 15A-910 in denying the defendant's motion. Before the trial began the court heard the motion for discovery and after the State had furnished certain items to the defendant he indicated he was satisfied. It is true that his attorney stated that if there were some "great discrepancy" in the substance, he might want to have it examined. We believe the court was within its discretion in denying the renewal of the motion when it was found during the trial that the substance had changed its consistency from the time Mr. McSwain examined it and the time it was offered in evidence. The defendant's first assignment of error is overruled.
In his second assignment of error the defendant challenges the sufficiency of the indictment. The indictment charges that the defendant aided and abetted the sale and delivery of cocaine to M. D. Robertson. It does not name the person who was allegedly aided and abetted in the sale. The defendant argues this constitutes a fatal defect in the indictment. He cites several cases from the federal courts and from the courts of other states in support of this argument. G.S. 15A-924 provides in part:
"(a) A criminal pleading must contain:
(5) A plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant's commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation. . . ."
We hold that the failure to name the party whom the defendant aided and abetted did not violate G.S. 15A-924 by failing to assert a fact supporting an element of the offense. We believe the indictment
asserted facts supporting every element of the criminal offense and the defendant's commission of it so that the defendant should have clearly been apprised of the conduct which was the subject of the accusation. This would conform to the requirements of G.S. 15A-924 without naming the party whom the defendant was alleged to have aided and abetted. See ...