State v. Holley

239 S.E.2d 853 (1978)

STATE of North Carolina v. Ernest Lee HOLLEY.

No. 771SC345.

Court of Appeals of North Carolina.

January 17, 1978.

*854 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Elisha H. Bunting, Jr., Raleigh, for the State.

John C. Morehead, Edenton, for defendant-appellant.

PARKER, Judge.

In Case No. 76CR1854 defendant contends that there was insufficient evidence to support the jury's finding that he intended to kill when he shot Moore with the shotgun. There is no merit in this contention. An intent to kill "may be inferred from the nature of the assault, the manner in which it is made, the conduct of the parties, and other relevant circumstances." State v. Revels, 227 N.C. 34, 36, 40 S.E.2d 474, 475 (1946). It must frequently be proved by circumstantial evidence, State v. Jones, 18 N.C.App. 531, 197 S.E.2d 268 (1973), and "is ordinarily shown by proof of facts from which an intent to kill may be reasonably inferred." State v. Thacker, 281 N.C. 447, 455, 189 S.E.2d 145, 150 (1972).

*855 In this case the evidence shows that defendant deliberately shot Moore at close range with a twelve-gauge shotgun. It is well known that a twelve-gauge shotgun fired at close range is a deadly weapon. The jury could reasonably infer that defendant intended the normal and natural result of his deliberate act. Indeed, it is difficult to see how any other inference is reasonably possible from the evidence in this case. Defendant's assignment of error in Case No. 76CR1854 is overruled.

In Case No. 76CR1879 defendant contends that there was a fatal variance between the indictment and the proof with respect to the ownership of the shotgun. The indictment charged defendant with the crime of larceny, after breaking and entering into the dwelling of Lillie Mae Beasley, of "an Ivor Johnson, Single Barrell (sic), 12 Gauge Shot Gun the personal property of Johnny K. Leary and in the possession of Lillie Mae Beasley." Lillie Mae Beasley testified for the State regarding the ownership of the shotgun and her possessory interest in it. She referred to the shotgun as "my gun," but testified that it actually belonged to her father. She did not testify what her father's name was, and the State's evidence fails to disclose the identity of Johnny K. Leary or his connection with the gun. She did testify that she kept the shotgun in her bedroom for protection.

It is, of course, well settled "that the indictment in a larceny case must allege a person who has a property interest in the property stolen and that the State must prove that that person has ownership, meaning title to the property or some special property interest." State v. Greene, 289 N.C. 578, 584, 223 S.E.2d 365, 369 (1976). In this regard, the property may be laid "either in him who has the general property or in him who has a special property." State v. Jenkins, 78 N.C. 478, 479 (1878), or in both. State v. Greene, supra. In the present case the indictment did allege both the general owner, Johnny K. Leary, and the special owner, Lillie Mae Beasley, but the State's proof showed only the special ownership interest of Lillie Mae Beasley. We hold this to be sufficient and find no fatal variance. The State's allegation and proof as to the special ownership interest was entirely consistent, and the additional allegation in the indictment as to the general owner may be treated as surplusage. Even had the indictment incorrectly alleged that Lillie Mae Beasley was the general owner while the State's evidence showed only her special property interest (that she had lawful custody and possession of the gun for a particular purpose, i. e., to furnish her protection), there would have been no fatal variance. State v. Smith, 266 N.C. 747, 147 S.E.2d 165 (1966); State v. Law, 228 N.C. 443, 45 S.E.2d 374 (1947); State v. Hauser, 183 N.C. 769, 111 S.E. 349 (1922); State v. Allen, 103 N.C. 433, 9 S.E. 626 (1889); State v. Robinette, 33 N.C.App. 42, 234 S.E.2d 28 (1977); State v. Carr, 21 N.C.App. 470, 204 S.E.2d 892 (1974); State v. Cotten, 2 N.C.App. 305, 163 S.E.2d 100 (1968). Still less should a variance be found here, where the indictment correctly alleged and the State's evidence showed her special property interest. The purpose of the requirement that the indictment in a larceny case must allege the ownership of the stolen property is to "(1) inform defendant of the elements of the alleged crime, (2) enable him to determine whether the allegations constitute an indictable offense, (3) enable him to prepare for trial, and (4) enable him to plead the verdict in bar of subsequent prosecution for the same offense." State v. Greene, supra, 289 N.C. at 586, 223 S.E.2d at 370. All of these purposes were adequately served in the present case by the allegations in the indictment as to the special possessory interest of Lillie Mae Beasley and by the State's evidence which fully supported those allegations.

State v. Eppley, 282 N.C. 249, 192 S.E.2d 441 (1972), cited and relied on by defendant, is not here controlling. In that case the indictment charged the larceny of a shotgun, the property of James Ernest Carriker, while the State's evidence showed that the *856 gun belonged to Carriker's father. In finding a fatal variance, our Supreme Court pointed out that in that case "nothing in the evidence shows that this witness [James Ernest Carriker] was a bailee of the shotgun or had any other property interest therein." 282 N.C. at 259, 192 S.E.2d at 448. Here, not only did the State's evidence show that Lillie Mae Beasley was keeping the gun for her protection, but the indictment specifically alleged her possession of the gun. Moreover, in the present case, unlike the situation in State v. Eppley, supra, there was no positive showing of any variance between the allegation in the indictment as to ultimate ownership and the State's proof in that regard. Nothing in the evidence showed that Johnny K. Leary was not Lillie Mae Beasley's father. (Indeed, the record as a whole strongly suggests that he was. Deputy Sheriff Perry, who swore to the warrant, testified without objection before the jury that Lillie Mae Beasley told him in her father's presence that the gun belonged to her father and that her father then told Perry the name and type of the gun. It is reasonable to suppose that at the same time he also told Perry that his name was Johnny K. Leary, or that Perry already knew this to be the case, because Perry, in swearing to the warrant, described the shotgun by make and type as Lillie Mae Beasley's father had told him and at the same time swore that ultimate ownership was in Johnny K. Leary.)

We find no fatal variance between the State's allegation and proof as to Lillie Mae Beasley's possessory interest in the shotgun.

No Error.

MARTIN and ARNOLD, JJ., concur.