State v. Killian , 14 N.C. App. 446 ( 1972 )

HEDRICK, Judge.

The defendant assigns as error the Court’s denial of his timely motion for judgment as of nonsuit. Although the evidence in this case reveals a rather bizarre situation, we think it sufficient to require the submission of the case to the jury and to support the verdict.

The defendant contends:

“. . . (T)he Court erred in denying defendant’s motion in arrest of judgment as pronounced in this case because of a material variance in the bill of indictment and the proof of ownership of property alleged stolen.”

In State v. Cotten, 2 N.C. App. 305, 163 S.E. 2d 100 (1968), it is said:

“The fact that an indictment charges a defendant with larceny of property from a specified person and the evidence discloses that such person is not the owner but is in lawful possession at the time of the offense, does not render the indictment invalid. There is no fatal variance, since the unlawful taking from the person in lawful custody and control of the property is sufficient to support the charge of larceny. State v. Smith, 266 N.C. 747, 147 S.E. 2d 165.”

This assignment of error is not sustained.

We hold the defendant had a fair trial free from prejudicial error.

Judge Vaughn concurs. Judge Brock dissents.