State v. Bozeman , 28 N.C. App. 404 ( 1976 )

MARTIN, Judge.

Defendant contends that the court erred in admitting Swann’s identification testimony. Before this testimony was admitted, a voir dire hearing was held to determine its admissibility. At this hearing, Swann testified concerning his opportunity to observe defendant and that after the robbery an employee of the Sheriff’s Department showed him a group of photographs and he identified one as a photograph of defendant. The court made extensive findings of fact based on competent evidence concerning Swann’s observation of defendant, and concluded that the in-court identification of the defendant by the witness Swann was of independent origin based solely on what he saw at the time of the crime and was admissible. Findings of fact by the trial judge and conclusions drawn therefrom on voir dire examination are binding on the appellate courts if supported by competent evidence. State v. Nelson, 23 N.C. App. 458, 209 S.E. 2d 355 (1974) ; State v. West, 17 N.C. App. 5, 193 S.E. 2d 381 (1972). Defendant’s objection to the admission of Swann’s in-court identification was properly overruled, and the evidence thereof was properly admitted.

Defendant assigns as error the failure of the trial judge to direct a verdict of not guilty because of insufficient evidence and a fatal variance between the evidence and the indictment.

The indictment charged defendant with taking “$183.00 in money; of the value of $183.00 dollars, from the presence, person, place of business, and residence of Harber Farmes Incorporated DBA Convenient Food Mart Masonboro Loop Rd. New Hanover County — Gladys Hanson and Dickie Kirkum Custodians.” The State offered no evidence that the property taken belonged to Harbor Farmes Incorporated and defendant contends that because of this he should have been granted a nonsuit for variance. This contention is without merit. “ . . . (I)t is not necessary that ownership of the property be laid in a particular person in order to allege and prove armed robbery. . . . An indictment for robbery will not fail if the description of the property is sufficient to show it to be the subject of robbery and negates the idea that the accused was taking his own property.” State v. Spillars, 280 N.C. 341, 185 S.E. 2d 881 (1972).

No error.

Judges Vaughn and Clark concur.