State v. Liddell

250 S.E.2d 77 (1979)

39 N.C. App. 373

STATE of North Carolina v. Samuel Conner LIDDELL.

No. 7824SC679.

Court of Appeals of North Carolina.

January 2, 1979.

*78 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Kaye R. Webb, Raleigh, for the State.

William B. Cocke, Jr., Newland, for defendant-appellant.

ARNOLD, Judge.

The defendant contends that it was error for the two cases against him to be consolidated for trial. As he failed to renew his objection to the joinder at the close of all the evidence as G.S. 15A-927(a)(2) requires, we do not consider this contention.

Defendant also alleges a fatal variance between the second count of each indictment and the proof, which he says entitles him to a judgment as of nonsuit. The indictments charged the defendant with stealing "the property of Lees-McRae College under the custody of Steve Cummings." The evidence was, however, that the cigarettes and money taken in the first theft belonged to Mackey Vending Company and the money taken in the second theft belonged to ARA Food Services.

It is not always necessary that the indictment allege the actual owner. It is generally stated as the rule that no fatal variance exists when the indictment names an owner of the stolen property and the evidence discloses that that person, though not the owner, was in lawful possession of the property at the time of the offense. *79 State v. Holley, 35 N.C.App. 64, 239 S.E.2d 853 (1978); State v. Killian, 14 N.C.App. 446, 188 S.E.2d 529, rev'd on other grounds 282 N.C. 138, 191 S.E.2d 699 (1972). Clearly Lees-McRae College was in lawful possession of the cigarettes, money and hamburger patties at the time they were stolen. It is sometimes said also that more than mere lawful possession is required; that the person holding the property must have a special property interest in it, as by being a bailee, State v. Jenkins, 78 N.C. 478 (1877), or a custodian, State v. Robinette, 33 N.C. App. 42, 234 S.E.2d 28 (1977). Lees-McRae's custody of the property fits within the definition of a bailee. See 8 C.J.S. Bailments § 1. We find that there was no fatal variance between the indictment and the proof.

We note that the purposes of requiring an indictment to allege the ownership of the stolen property have been served here. The requirements are intended 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, 289 N.C. 578, 586, 223 S.E.2d 365, 370 (1976). We do not see how these purposes could have been better served had the indictments alleged ownership in Mackey Vending Company, and ARA Food Services.

No error.

HEDRICK and VAUGHN, JJ., concur.