{
  "id": 8557445,
  "name": "STATE OF NORTH CAROLINA v. WOODY POINDEXTER",
  "name_abbreviation": "State v. Poindexter",
  "decision_date": "1974-06-05",
  "docket_number": "No. 7413SC304",
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  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Chief Judge Brock and Judge Parker concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. WOODY POINDEXTER"
    ],
    "opinions": [
      {
        "text": "BALEY, Judge.\nDefendant 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.\nIn 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. \u201cThe 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.\u201d 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 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.\nThe court, however, instructed the jury:\n\u201cSo, 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.\u201d\nThis instruction permitted the jury to disregard the State\u2019s 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.\nSince 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.\nNew trial.\nChief Judge Brock and Judge Parker concur.",
        "type": "majority",
        "author": "BALEY, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Morgan, by Assistant Attorney General James B. Richmond, for the State.",
      "Prevatte and Prevatte, by James R. Prevatte, Jr., and Richard S. Owens III, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. WOODY POINDEXTER\nNo. 7413SC304\n(Filed 5 June 1974)\nNarcotics \u00a7 4.5\u2014 sale of marijuana \u2014 date of sale \u2014 alibi \u2014 instructions In a prosecution for distribution of marijuana wherein the indictment charged defendant with selling marijuana to a specified person on 17 January 1973 and the State\u2019s evidence tended to show that the sale occurred on a Sunday (apparently 14 January 1973) and that 17 January 1973 was a Wednesday, the trial court erred in instructing the jury that it should return a guilty verdict if it found that defendant sold marijuana on 17 January 1973 since such instruction (1) permitted the jury to disregard the State\u2019s evidence that the offense occurred on Sunday and convict defendant for a transaction on Wednesday, January 17, about which there was no evidence, and (2) deprived defendant of the right of his alibi.\nAppeal by defendant from Brewer, Judge, 3 December 1973 Session of Superior Court held in Brunswick County.\nHeard in Court of Appeals 8 May 1973.\nDefendant was tried for distribution of marijuana on a bill of indictment which read in part as follows:\n\u201cThe Jurors for the State Upon Their Oath Present, That Woody Poindexter late of the County of Brunswick on the 17th day of January, 1973 . . . did unlawfully, wilfully and feloniously distribute a controlled substance to John Cooper at The Circle, Yaupon Beach, N. C. The Said substance consisted of marihuana .... At the time of the offense the defendant was over 21 years of age, and John Cooper was under 18 years of age and at least 36 months younger than the defendant.... \u201d\n17 January 1973 was a Wednesday, 14 January 1973 was a Sunday, and 15 January 1973 was a Monday.\nJohn Cooper was the first witness for the State at the trial. He testified that he purchased some marijuana from defendant for $20.00. He put it in a box and hid the box in the woods. Subsequently he was arrested and convicted of possession of marijuana with intent to distribute. During the course of his testimony, Cooper stated:\n\u201cI know Woody Poindexter. ... I knew him on the 17th day of January. I saw him on that day at Yaupon Beach in the afternoon. I am not sure of the date. . . .\n\u2756 \u2756 *\n\u201cThis transaction took place around 2:30. ... I am not sure of the date, but I believe it was a Sunday. . . .\n\u201cI hid the box in the woods the day after I bought the marijuana, which was on a Monday. A couple of days elapsed between the time I put the box in the woods and the time I was arrested.\u201d\nCooper testified that he was seventeen years old when he bought the marijuana from defendant.\nL. D. Jones, the assistant police chief of the town of Yaupon Beach, testified that on 17 January 1973 he found a box of marijuana hidden in the woods. The box had John Cooper\u2019s name on it, and Jones arrested Cooper the same day.\nDefendant took the stand and denied that he had sold any marijuana to John Cooper. He testified:\n\u201cOn the date in question, I was at home. It was a Sunday. On that day the Super Bowl was on and I was at my brother-in-law\u2019s house all day. ... I did not leave the house at any time that day.\u201d\nThree additional witnesses corroborated the testimony of defendant concerning his alibi.\nThe jury found defendant guilty, and the court at first sentenced him to two years in prison. Later in the day, the court increased the sentence to ten years, explaining the change as follows:\n\u201cMadam Clerk, in the case of Mr. Poindexter whom I\u2019ve just sentenced, in checking the Statute the Statute sets out that the minimum term of imprisonment which can be imposed on this Defendant is Ten (10) years . . . . Therefore, the Court determines and adjudges that the Defendant be imprisoned for a term of ten (10) years in the State Prison and that the Appearance Bond be set at $10,000.00.\u201d\nDefendant appealed to this Court.\nAttorney General Morgan, by Assistant Attorney General James B. Richmond, for the State.\nPrevatte and Prevatte, by James R. Prevatte, Jr., and Richard S. Owens III, for defendant appellant."
  },
  "file_name": "0720-01",
  "first_page_order": 748,
  "last_page_order": 751
}