#### STATE v. SPEIGHT W. WADFORD.

(Filed 5 October, 1927.)

Criminal Haw — Indictment—Bill of Particulars — Courts — Discretion— Evidence — Scienter—Quo Animo.

The granting of a bill of particulars on an indictment for a criminal offense is to primarily inform the accused of the charges against him, and. secondarily to inform the court, and while this not strictly a part of the indictment, its effect is to confine the State in its evidence to the particulars stated, and it is reversible error to the prejudice of the defendant’s rights for the court to admit, over his objection, evidence as to other criminal offenses not included in the bill. C. S., 4613; Const, of N. C.. Art. I. sec. 11.

*337Appeal by defendant from Sinclair, J., at May Term, 1927, of LENOIR.

Criminal prosecution tried upon an indictment charging the defendant (a person over the age of sixteen years) with embezzlement. C. S., 4268.

There is evidence tending to show that during the spring of 1926 the defendant, while in the employ of M. L. Shealey as “tank wagon salesman, truck route,” collected in the course of his employment certain moneys for oil and gasoline sold and delivered to the customers of his employer, and fraudulently appropriated the same to his own use.

Before trial the solicitor, in response to a request from the defendant (C. S., 4613), furnished a bill of particulars, specifying six customers to whom it was alleged the defendant had delivered oil and gasoline, collected therefor, and embezzled the proceeds arising from said sales.

On the trial, and over objection, the State was permitted to offer evidence of two accounts of customers, not specified in the bill of particulars, which, it was contended, the defendant had collected and fraudulently converted to his own use.

From an adverse verdict and judgment thereon, the defendant appeals, assigning errors.

Attorney-General Brummitt and Assistant Attorney-General Nash for the State.

Shaw & Jones for defendant.

Stacy, C. J".

Does the filing of a bill of particulars in a prosecution for embezzlement confine the State in its proof to the items set down or enumerated therein?

The question is an important one, and seems not to have been heretofore directly presented in this State, though we have a statute on the subject, and many decisions which deal in a general way with the nature and purpose of a bill of particulars. C. S., 4613, and annotations. There is a dictum in S. v. Van Pelt, 136 N. C., 633, to the effect that, when the solicitor files a bill of particulars, either at the request of the defendant or on order of the court, the State'is restricted in its proof “to the items therein set down”; and this was repeated in S. v. Dewey, 139 N. C., 556. The present case calls for a. decision of the question:

The uniform current of authority in other jurisdictions, where the question has been considered, is to the effect that while the action of the trial court in ordering or refusing to order a bill of particulars is a matter of judicial discretion, nevertheless, when once ordered and furnished, the bill of particulars becomes a. part of the record and serves' *338(1) to inform tbe defendant of tbe specific occurrences intended to be investigated on tbe trial, and (2) to regulate tbe course of tbe evidence by limiting it to tbe items and transactions stated in tbe particulars. McDonald v. People, 126 Ill., 150; Commonwealth v. Giles, 1 Gray, 466; People v. McKinney, 10 Mich., 54; Starkweather v. Kittle, 17 Wend., 21; Bisbop cr. Pro. (2 ed.), sec. 643; 14 R. C. L., 190; 31 C. J., 752.

“Tbe office of a bill of particulars is to advise tbe court, and more particularly tbe defendant, of wbat facts, more or less in detail, tbe defendant will be required to meet, and tbe court will limit tbe government in its evidence to those facts, so set forth.” McPherson, District Judge, in U. S. v. Adams Express Co., 119 Fed., 240, quoted with approval in U. S. v. Gouled, 253 Fed., 239.

Tbe true office of a bill of particulars is twofold. It is intended “to inform tbe defendant of the nature of the evidence, and the particular transactions to be proved under tbe information, and to limit tbe evidence to tbe items and transactions stated in tbe particulars.” People v. McKinney, supra.

This view of tbe office and purpose of a bill of particulars is supported, in tendency at least, by our own decisions. In S. v. R. R., 149 N. C., 508, it was said that tbe whole object of a bill of particulars is to enable tbe defendant properly to prepare bis defense in cases where tbe bill of indictment, though correct in form and sufficient to apprise tbe defendant in general terms of tbe accusation against him, is yet so indefinite in its statements as to tbe particular charge, or occurrences referred to, that it does not afford tbe accused a fair opportunity to procure bis witnesses or prepare bis defense. To like effect are tbe decisions in a number of other cases.

True, it is held with us that a bill of particulars is not a part of tbe indictment, nor a substitute therefor, nor an amendment thereto, and that it may not be used to supply an omission or to cure a defect therein. Hence, a bill of particulars can neither change the offense charged nor aid an indictment fundamentally bad, though it may remove an objection on tbe ground of uncertainty. S. v. Gulledge, 173 N. C., 746; S. v. Cline, 150 N. C., 854 (disapproved on another point in S. v. Hawley, 186 N. C., 433); S. v. Long, 143 N. C., 671; S. v. Van Pelt, supra. Tbe application for a bill of particulars is addressed to tbe sound discretion of tbe trial court, and bis ruling thereon is not reviewable on appeal, except perhaps in case of manifest abuse of discretion. S. v. Hinton, 158 N. C., 625; S. v. Dewey, supra. A bill of particulars, being no part of tbe indictment, is not subject to demurrer, and may be *339amended at any time, with, permission of the court, on such terms or under such conditions as are just. Townsend v. Williams, 117 N. C., 330.

Again, it is provided by C. S., 4613, that “in all indictments, when further information not required to be set out therein is’ desirable for the better defense of the accused, the court, upon motion, may, in its discretion, require the solicitor to furnish a bill of particulars of such matters.”

It will be observed that, by the terms of this statute, a bill of particulars is ordered when “desirable for the better defense of the accused.” Its purpose is to give him notice of the specific charge or charges against him and to apprise him of the particular transactions which are to be brought 'in question on the trial, so that he may the better or more intelligently prepare his defense, and its effect, when furnished, is to limit the evidence to the transactions set out therein. People v. Depew, 237 Ill., 574. Unless this be its purpose, instead of making for a fair trial, it might tend to entrap the defendant and throw him off his guard, or what is worse “prove to be a snare and a delusion.” McDonald v. People, supra. The granting or refusing of the motion for a bill of particulars is, in the first instance, however, within the sound discretion of the trial court. DuBois v. People, 200 Ill., 157, 65 N. E., 658; 93 A. S. R., 183, and note.

The competency of the evidence, here in question, to establish scienter, or quo animo, under the principle announced in S. v. Dail, 191 N. C., 231, and cases there cited, may not be resolved against the statutory effect to be given to a bill of particulars, which, when ordered and furnished, has as its purpose the limitation, of the evidence to the particular scope of inquiry. Unless the statute is to be given this effect, a bill of particulars is perhaps of little value, and certainly of doubtful benefit, to the defendant. The Legislature intended that it should make for the better or more intelligent defense of the accused, in compliance with Art. I, sec. 11, of the Constitution, which provides that, “in all criminal prosecutions, every man has the right to be informed of the accusation against him and to confront the accusers and witnesses with other testimony.” The State is rightly interested in the conviction of the guilty, or those who have violated the criminal law, but as a safeguard against the possible conviction of the innocent, or those who have not violated the criminal law, it is decreed, both by legislative enactment and judicial decision, that every criminal prosecution shall be conducted in accordance with the established rules of procedure.

*340There are other matters appearing on the record worthy of consideration, especially the form of the judgment, but as they are not likely to occur on another hearing, we shall not consider them now.

The case, in some of its features, is not unlike S. v. Klingman, 172 N. C., 947.

For error in the reception of evidence, over objection, of transactions not specified in the bill of particulars, there must be a new trial; and it is so ordered.

New trial.