State v. Searcy , 37 N.C. App. 68 ( 1978 )

ARNOLD, Judge.

Both defendants argue that their motions for nonsuit should have been allowed. Defendant Teague argues that he was a mere passenger in the Mustang; that there was no evidence of how he entered the Mustang or of his relationship to the driver or the owner; and that there was no evidence that he had control over either the vehicle or the gun. We agree with defendant Teague that there was no evidence that he was acting in concert or that he was particeps criminis. In the case of State v. Ledford, 24 N.C. App. 542, 211 S.E. 2d 532 (1975), the fact that contraband was found under the hood of the car is not a significant difference to distinguish it from the case at bar. Here, as in Ledford, defendant Teague was shown only to be a passenger of the vehicle in which contraband was found. There being no other evidence linking Teague to the contraband, defendant Teague’s motion for nonsuit should have been allowed.

Defendant Searcy’s motion, however, was properly denied. In State v. Glaze, 24 N.C. App. 60, 210 S.E. 2d 124 (1974), this Court held that the State could overcome a motion for nonsuit by presenting evidence placing the accused within such proximity to the contraband as to justify the jury’s conclusion that the contraband was in the accused’s possession. In Glaze, the Court found that defendant, as driver of the vehicle, had control of its contents, a fact sufficient to give rise to a rebuttable inference of knowledge and possession sufficient to take the case to the jury. As to defendant Searcy, the driver in the present case, the Glaze case is apposite, and his motion for nonsuit was properly denied.

Defendant Searcy also assigns as error the trial court’s denial of his motion to set aside the verdicts and to arrest judgment. He argues that the bill of indictment upon which he was tried charges two separate offenses and that it is too uncertain to identify the offense under G.S. 14-55 with which he was charged. We agree.

G.S. 14-55 makes three separate offenses felonies:

“If any person shall be found armed with any dangerous or offensive weapon, with the intent to break or enter a dwelling, or other building whatsoever, and to commit any felony or larceny therein; or shall be found having in his possession, without lawful excuse, any picklock, key, bit, or other implement of housebreaking; or shall be found in any such building, with intent to commit any felony or larceny therein, such person shall be guilty of a felony . . . .”

The indictment, which has already been quoted, contains a mixture of the first two offenses defined by G.S. 14-55. We find that it is not sufficiently clear to allow defendant to understand the offense with which he was charged. Our reversal of the trial court’s ruling on the arrest of judgment motion does not, however, preclude defendant’s retrial for offenses charged under a proper bill of indictment.

As to defendant Teague, reversed.

As to defendant Searcy, judgment arrested.

Judges BRITT and ERWIN concur.