Appeal by defendant from Reid, Judge. Judgment entered 7 January 1981 in Superior Court, Washington County. Heard in the Court of Appeals 5 May 1982.
Wells, Judge. Judges Webb and Whichard concur.
In his appeal, defendant assigns error to the trial court's denial of his motion to dismiss at the close of the State's evidence. We do not reach defendant's assignment of error because we find the indictment on which defendant was tried to be fatally defective. The indictment is as follows, in pertinent part:
The jurors for the State upon their oath present that on or about the 7th day of September, 1980, in Washington County Robert Hanson unlawfully and wilfully did feloniously be and become an accessory before the fact to the felony of Attempting to Provide Drugs to an Inmate, G.S. 14-258.1, that was committed by Michelle Montague against the State of North Carolina on September 7, 1980, in that the defendant did counsel, procure, command and aid Michelle Montague to commit that felony, in violation of the following law: G.S. 14-5, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State. (Emphasis added.)
The statute which Michelle Montague is alleged to have violated, G.S. 14-258.1, is as follows:
§ 14-258.1. Furnishing poison, controlled substances, deadly weapons, cartridges, ammunition or alcoholic beverages to inmates of charitable, mental or penal institutions or local confinement facilities.
(a) If any person shall give or sell to any inmate of any charitable, mental or penal institution, or local confinement facility, or if any person shall combine, confederate, conspire, aid, abet, solicit, urge, investigate, counsel, advise, encourage, attempt to procure, or procure another or others to give or sell to any inmate of any charitable, mental or penal institution, or local confinement facility, . . . any controlled substances included in Schedules I through VI contained in Article 5 of Chapter 90 of the General Statutes except under the general supervision of a practitioner, . . . he shall be guilty of a felony . . .
The indictment does not allege a violation of G.S. 14-258.1 by Michelle Montague. Under the wording of the statute, attempting
to provide controlled substances to an inmate is not a proscribed activity. The allegation that defendant was an accessory before the fact to an attempt to deliver a controlled substance does not allege facts sufficient to constitute a violation of G.S. 14-5.*fn2 In order to state a violation of G.S. 14-5, the indictment must allege an underlying felony.
The judgment entered against defendant in this case must be and is