State v. Poindexter

205 S.E.2d 145 (1974)

21 N.C. App. 720

STATE of North Carolina v. Woody POINDEXTER.

No. 7413SC304.

Court of Appeals of North Carolina.

June 5, 1974.

*146 Atty. Gen. Robert Morgan, by Asst. Atty. Gen. James B. Richmond, Raleigh, for the State.

Prevatte & Prevatte, by James R. Prevatte, Jr., and Richard S. Owens, III, Southport, for defendant appellant.

BALEY, Judge.

Defendant contends that the court erred in its instructions to the jury with respect to the date of the commission of the offense and deprived him of the effect of his alibi evidence. This contention is well founded and entitles him to a new trial.

In this case the indictment charged defendant with selling marijuana to John Cooper on 17 January 1973. The evidence of the State tended to show that the sale occurred on Sunday afternoon (apparently 14 January 1973) and that 17 January 1973 was a Wednesday, the date the marijuana was found by the deputy. Ordinarily, a variance such as this concerning the date in the indictment and the proof of the crime is not material. "The time alleged in an indictment is not usually an essential ingredient of the offense charged, and the State ordinarily may prove that it was committed on some other date." State v. Wilson, 264 N.C. 373, 377, 141 S.E.2d 801, 804; accord, State v. Davis, 282 N.C. 107, 191 S.E.2d 664; State v. Trippe, 222 N.C. 600, 24 S.E.2d 340. In this case, both the *147 evidence for the State and the alibi evidence of the defendant related to the Sunday afternoon when the Super Bowl football game was played, not to Wednesday, January 17.

The court, however, instructed the jury:

"So, Members of the Jury, I charge you, if you find from the evidence beyond a reasonable doubt that on the 17th day of January, 1973, Woody Poindexter transferred or sold or handed to or gave to or sold to John Cooper marijuana, it would be your duty to return a verdict of guilty as charged."

This instruction permitted the jury to disregard the State's evidence that the offense occurred on Sunday, which was the only evidence of when any offense occurred, and convict defendant for a transaction on Wednesday, January 17, about which there was no evidence. It deprived defendant of the benefit of his alibi because it allowed the jurors to convict even if they believed the alibi witnesses. See State v. Whittemore, 255 N.C. 583, 122 S.E.2d 396.

Since this case is to be returned for a new trial, it might not be amiss to point out that the offense charged in the bill of indictment is distribution of a controlled substance by a person over twenty-one to a person under twenty-one. While the age of the defendant is a collateral matter, wholly independent of his guilt or innocence, it is relevant on the subject of punishment; and, unless admitted by defendant, it must be submitted for the determination of the jury. State v. Higgins, 266 N.C. 589, 146 S.E.2d 681; State v. Courtney, 248 N.C. 447, 103 S.E.2d 861; State v. Lefler, 202 N.C. 700, 163 S.E. 873.

New trial.

BROCK, C. J., and PARKER, J., concur.