#### STATE v. WILLARD NUNLEY.

(Filed 1 March, 1944.)

Indictment § 19: Criminal Law §§ 39a, 52b—

In a criminal prosecution, based upon an indictment charging larceny of money and valuable papers and evidence tending to show, at most, an attempt to commit larceny of two suitcases, there is a fatal variance between allegata and probata, of which advantage may be taken under an exception to the disallowance of a motion for judgment as of nonsuit.

Appeal by defendant from Sink, J., at November Term, 1943, of ROCKINGHAM.

Tbe defendant was tried upon a bill of indictment charging tbe larceny of “One Hundred Twenty Four Dollars in money, and valuable papers of tbe value of Two Hundred Dollars, of tbe goods, chattels and moneys of one John Nunley,” and of tbe receiving said goods, chattels and moneys, knowing them to have been stolen; and was found to be “guilty of an attempt to commit larceny.”

At tbe close of tbe State’s evidence tbe court allowed defendant’s motion for judgment as in case of nonsuit against tbe charge of receiving stolen goods knowing them to have been stolen. Tbe court disallowed such motion against tbe charge of larceny and announced tbat it would submit to tbe jury, under such charge, tbe question of tbe guilt or innocence of tbe defendant of tbe offense of an attempt to commit larceny.

From judgment of imprisonment predicated on tbe verdict tbe defendant appealed, assigning errors.

*97 Attorney-General McMullan and Assistant Attorneys-General Patton and Rhodes for the State.

Sharp & Sharp for defendant, appellant.

ScheNCK, J.

Tbe bill of indictment charges tbe larceny of “One Hundred Twenty Four Dollars in money, and valuable papers of tbe value of Two Hundred Dollars of tbe goods, chattels and moneys of one John Nunley.” Tbe evidence of tbe State tending to show larceny or an attempt to commit larceny, if there was such evidence, relates to two suitcases or tbe baggage of John Nunley. His Honor in bis charge refers to tbe baggage, bags or property of tbe prosecuting witness, never to bis money or valuable papers.

In truth, there appears in tbe State’s brief tbe following: “It becomes apparent from tbe evidence and from tbe charge of tbe judge that tbe case was tried upon tbe theory that tbe defendant attempted to steal two suitcases.”

Tbe allegation being that tbe defendant committed larceny of money and valuable papers of John Nunley, and tbe evidence tending to show, at most, an attempt to commit larceny of two suitcases or baggage of John Nunley, there was a fatal variance between tbe allegata and thé probata, of which defect tbe defendant could take advantage under bis exception to tbe disallowance of bis motion for judgment as of nonsuit. S. v. Harbert, 185 N. C., 760, 118 S. E., 6; S. v. Grace, 196 N. C., 280, 145 S. E., 399, and cases there cited.

Reversed.