State v. Oden

259 S.E.2d 795 (1979)

44 N.C. App. 61

STATE of North Carolina v. Dennis L. ODEN.

No. 792SC551.

Court of Appeals of North Carolina.

November 20, 1979.

*796 Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. John R. B. Matthis and Associate Atty. Gen. James C. Gulick, Raleigh, for the State.

Carter, Archie & Grimes by Sid Hassell, Jr., Washington, for defendant-appellant.

VAUGHN, Judge.

Defendant's first assignment of error is based on the denial of his motion for a continuance due to the unavailability of a defense witness. The assignment of error is without merit. The motion was made after the case was called for trial. Although the indictment had been pending for almost a year, defendant had not caused a subpoena to be issued for the alleged witness. Moreover, he did not advise the court of what he hoped to prove by the potential witness.

Defendant's second assignment of error is based upon a general objection to certain testimony by the State's first witness, police officer Danny Respass. Respass testified about what type of guns were reported and listed as stolen. In his brief, defendant contends the general objection should have been sustained on hearsay grounds, i. e. that the testimony of Officer Respass about the missing items depends upon the out-of-court assertion of Alligood that they were stolen and that the testimony was offered to prove that the named items were missing. The testimony was admissible to corroborate the testimony of Alligood. Since the testimony was competent for that purpose, it was not error to overrule defendant's general objection. See 1 Stansbury, N.C.Evidence §§ 50, 79 (Brandis rev.1973).

As his third assignment of error, defendant argues that the case should have been dismissed because of the variance between the date of the crime for which State's evidence was offered and the date of the crime as stated in the indictment. The bill of indictment alleged a felonious breaking and entering and larceny "on or about the 13th day of March 1978" while *797 the evidence tended to prove defendant committed the crimes on 22 March 1978. The variance does not void the judgment in this case. Time is not of essence in the offenses charged. A statute of limitations is not involved. Defendant has not demonstrated any harm in the variance of the dates. He was not deprived of an opportunity to present an alibi defense. Evidence was received giving defendant an alibi for both dates. There was no apparent reliance nor prejudicial error in this defect in dates. G.S. 15-155; State v. Locklear, 33 N.C.App. 647, 236 S.E.2d 376, cert. den., 293 N.C. 363, 237 S.E.2d 851 (1977).

We have examined defendant's other assignments of error and conclude that prejudicial error has not been shown.

No error.

ERWIN and HILL, JJ., concur.