{
  "id": 8553317,
  "name": "STATE OF NORTH CAROLINA v. CHARLES ROBERT BENTON",
  "name_abbreviation": "State v. Benton",
  "decision_date": "1970-12-30",
  "docket_number": "No. 705SC469",
  "first_page": "280",
  "last_page": "281",
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      "cite": "10 N.C. App. 280"
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "167 S.E. 2d 266",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
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    {
      "cite": "275 N.C. 283",
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      "reporter": "N.C.",
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    {
      "cite": "272 N.C. 526",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
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          "page": "158"
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      "case_paths": [
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    {
      "cite": "140 S.E. 2d 413",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "263 N.C. 786",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8573163
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      "opinion_index": 0,
      "case_paths": [
        "/nc/263/0786-01"
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  "last_updated": "2023-07-14T19:51:53.441044+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Chief Judge Mallard and Judge Graham concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. CHARLES ROBERT BENTON"
    ],
    "opinions": [
      {
        "text": "PARKER, Judge.\nDefendant assigns' as error the refusal of the court to grant his motion for a directed verdict at the close of all the evidence on the ground that the evidence was insufficient to carry the case to the jury. Defendant was tried on an indictment charging him with breaking and entering \u201cthe building located 2024 Wrightsyille Ave., Wilmington, N. C., known as the Eakins Grocery Store, William Eakins, owner/possessor.\u201d All of the evidence, however, related to a store, the nature of which was not disclosed, located at 2040 Wrightsville Avenue in the City of Wilmington, owned and operated by William Adkins. Thus, the record discloses a fatal variance between the indictment and the proof. State v. Brown, 263 N.C. 786, 140 S.E. 2d 413. Defendant must be convicted, if convicted at all, of the particular offense or a lesser degree thereof charged in the bill of indictment. The allegation and proof must correspond. State v. Watson, 272 N.C. 526, 158, S.E. 2d 334.\nIn his brief on this appeal, appellant made no mention of the variance noted but contended his motion should have been allowed for that the evidence was insufficient to connect defendant with the breaking and entering and raised no more than a conjecture as to his guilt. \u201cEven so, the question presented by defendant\u2019s assignment of error is whether the evidence was sufficient rather than whether defendant\u2019s particular contention is valid.\u201d State v. Cooper, 275 N.C. 283, 167 S.E. 2d 266.\nThe solicitor may, if so advised, present another bill of indictment correctly alleging the premises which were broken and entered. State v. Watson, supra. For the fatal variance between the indictment and proof, the judgment in the present case is\nReversed.\nChief Judge Mallard and Judge Graham concur.",
        "type": "majority",
        "author": "PARKER, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Robert Morgan by Staff Attorney Rafford E. Jones for the State.",
      "Goldberg & Scott, by Herbert P. Scott for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. CHARLES ROBERT BENTON\nNo. 705SC469\n(Filed 30 December 1970)\n1. Burglary and Unlawful Breakings \u00a7 5; Indictment and Warrant \u00a7 17\u2014 variance between indictment and proof \u2014 description of premises\nThere was a fatal variance between pleading and proof in a felonious breaking and entering prosecution, where the indictment alleged the breaking and entering of a building located at \u201c2024 Wrightsville Ave., Wilmington, N. C., known as the Eakins Groeexy Store, William Eakins, owner/possessor,\u201d but the evidence related to a store, the nature of which was not disclosed, located at 2040 Wrights-ville Avenue in the City of Wilmington, and owned and operated by William Adkins.\n2. Indictment and Warrant \u00a7 17\u2014 variance between pleading and proof \u2014 motion for nonsuit\nQuestion of fatal variance between indictment and proof was properly presented by defendant\u2019s motion for nonsuit on the ground that the evidence was insufficient to connect defendant with the alleged crime.\nAppeal by defendant from Cowper, J., 4 March 1970 Session of New Hanover Superior Court.\nDefendant was indicted for felonious breaking and entering \u201cthe building located 2024 Wrightsville Ave., Wilmington, N. C., known as the Eakins Grocery Store, William Eakins, owner/possessor. ...\u201d He pleaded not guilty. At the close of the State\u2019s evidence the court allowed defendant\u2019s motion for a directed verdict of not guilty as to felonious breaking and entering, and denied a similar motion as to non-felonious breaking and entering. At the close of all the evidence, defendant again moved for a directed verdict of not guilty on the charge of non-felonious breaking and entering. The motion was again denied and the case was submitted to the jury on the issue of defendant\u2019s guilt or innocence of the misdemeanor of wrongful breaking or entering. The jury returned a verdict of guilty and prison sentence for a term of eighteen months was imposed. Defendant appealed.\nAttorney General Robert Morgan by Staff Attorney Rafford E. Jones for the State.\nGoldberg & Scott, by Herbert P. Scott for defendant appellant."
  },
  "file_name": "0280-01",
  "first_page_order": 304,
  "last_page_order": 305
}