State v. Bland , 34 N.C. App. 384 ( 1977 )

ARNOLD, Judge.

Defendant contends that the trial court erred by failing to grant defendant’s motion to dismiss at the close of the State’s evidence and at the close of all the evidence. He argues that there was a fatal variance between the indictments against defendant and the evidence adduced at his trial, and that jeopardy did not attach under either of the bills of indictment. Defendant’s contention is without merit.

The record shows that one indictment charged defendant with discharging a firearm into an occupied building and the second indictment charged him with discharging a firearm into an occupied 1969 Volkswagen. At the close of the State’s evidence, the Court dismissed the latter charge upon motion for judgment as of nonsuit. Where a judgment as of nonsuit is entered in a criminal prosecution on the ground that the evidence offered by the State is insufficient to warrant submission to the jury, the defendant has been subjected to jeopardy. State v. Vaughan and State v. Catena and State v. Smith, 268 N.C. 105, 150 S.E. 2d 31 (1966).

As to the first indictment, defendant argues that the State put on evidence showing that defendant discharged a firearm not into an occupied building as alleged in the indictment but into an occupied trailer. The indictment, however, specifically noted that the occupied building was located at 5313 Park Avenue, the address of the Reeves trailer in Wilmington. Under the facts, therefore, there was no fatal variance which would warrant dismissal.

Defendant also contends that the trial court incorrectly instructed the jury as to “acting in concert” and “aiding and abetting.” Defendant, however, points out, and in reviewing the instructions, we find, no error prejudicial to defendant.

Defendant’s final contention, that the court erred by failing to instruct as to lesser included offenses, namely assault with a deadly weapon and assault by pointing a gun, is also without merit. Since assault with a deadly weapon (G.S. 14-32) and assault by pointing a gun (G.S. 14-34) each involve the element of assault on a person, these two criminal offenses contain an element not essential to discharging a firearm into an occupied building and are not, therefore, lesser included offenses.

We have reviewed defendant’s other contentions, and find

No error.

Chief Judge BROCK and Judge PARKER concur.