{
  "id": 8625451,
  "name": "STATE v. G. H. WYATT, JR.",
  "name_abbreviation": "State v. Wyatt",
  "decision_date": "1961-03-01",
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  "first_page": "220",
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  "last_updated": "2023-07-14T21:52:35.681015+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. G. H. WYATT, JR."
    ],
    "opinions": [
      {
        "text": "WinboeNe, C.J.\nDefendant assigns as error the overruling of his motion for nonsuit. He contends that the motion should have been granted because of a variance between the allegation in the indictment and the proof. The indictment alleges embezzlement of the property from the \u201cPestroy Exterminating Co.\u201d However, the defendant moved for a bill of particulars and in the bill of particulars the phrase \u201cPestroy Exterminators, Inc.\u201d was used. The record also shows that the witnesses used these terms, along with \u201cPestroy Exterminating Corporation,\u201d interchangeably throughout the trial. It is apparent that all the witnesses were talking about the same thing.\nThe State is restricted in its proofs to the items set out in the bill of particulars. S. v. Lea, 203 N.C. 13, 164 S.E. 737. Therefore, the question is whether or not the use of \u201cPestroy Exterminators, Inc.\u201d is such a variance from \u201cPestroy Exterminating Co.\u201d as to be fatal and require a nonsuit.\nUpon a thorough examination of the record, the conclusion is that there was not fatal variance between allegations and proof, and that the defendant was informed of the corporation which was the accuser and victim. S. v. Grant, 104 N.C. 908, 10 S.E. 554; S. v. Thornton, 251 N.C. 658, 111 S.E. 2d 901.\nAnd as is aptly stated by Rodman, J., in S. v. Davis, 253 N.C. 224, 116 S.E. 2d 381, \u201cThe fact that the property was stolen from J. A. Turner & Co., Inc., rather than from J. A. Turner Co., a corporation, as charged in the bill of indictment, is not a fatal variance. There was no controversy as to who was in fact the true owner of the property. S. v. Whitley, 208 N.C. 661, 182 S.E. 338.\u201d Furthermore, there was sufficient evidence of all elements of the crime charged to go to the jury. S. v. Blackley, 138 N.C. 620, 50 S.E. 310.\nTherefore, in the overruling of defendant\u2019s motion for nonsuit, no error is made to appear.\nHowever the defendant assigns as error, and properly so, this statement made to the jury by the Assistant Solicitor for the State in his closing argument:\n\u201cLadies and gentlemen of the jury, you have before you in this trial two of the slickest confidence men we have had in this court for a long time, and there is no telling how much money they have taken from John Young and his company; they have just bled him white.\u201d\nCounsel for defendant objected. Objection was overruled by the court, and defendant excepted.\nIn this connection, wide latitude is given to the counsel in making argument to the jury. However defendant should not be subjected to unwarranted abuse by the solicitor in the argument to the jury. Here the characterization of defendant, and co-defendant, in the manner recited above is held highly improper and objectionable. S. v. Correll, 229 N.C. 640, 50 S.E. 2d 717.\nThe impropriety of the argument was brought to the attention of the trial court in time to be corrected then or in the charge. S. v. Hawley, 229 N.C. 167, 48 S.E. 2d 37. Nevertheless the tenor of the language used is of too grave nature to be easily erased from the minds of the jurors \u2014 even though the court had attempted to do so.\nFurthermore, defendant points to a series of questions asked of witnesses for defendant, and objected to by him, which appear to be violative of the rulings of this Court in S. v. Phillips, 240 N.C. 516, 82 S.E. 2d 762. There in the cross-examination of defendant, the Solicitor asked him numerous questions which assumed to be facts, the unproved insinuations of defendant\u2019s guilt of a number of collateral offenses. The court held the cross-examination was improper. Further elaboration of the subject need not be extended since they may not recur upon another trial.\nFor errors pointed out let there be a\nNew trial.",
        "type": "majority",
        "author": "WinboeNe, C.J."
      }
    ],
    "attorneys": [
      "Attorney General Bruton, Assistant Attorney General Harry W. McGalliard for the State.",
      "Sanford W. Brown for defendant, appellant."
    ],
    "corrections": "",
    "head_matter": "STATE v. G. H. WYATT, JR.\n(Filed 1 March, 1961.)\n1. Indictment and Warrant \u00a7 17: Embezzlement \u00a7 7: Criminal law \u00a7 103\u2014\nWhere an indictment for embezzlement alleges ownership in the \u201cPestroy Exterminating Co.\u201d and the bill of particulars lays the ownership in \u201cPestroy Exterminators, Inc.\u201d and 'the witnesses use both terms and \u201cPestroy Exterminating Corporation\u201d interchangeably, but it is apparent that all the witnesses were referring to the same corporation, there is no' fatal variance between allegation and proof, defendant having been informed of the corporation which was the victim of the embezzlement.\n2. Criminal law \u00a7 97\u2014\nWhile wide lattitude is allowed in the argument to the jury, the defendant should not be subjected to unwarranted abuse by tbe solicitor, and tbe action of tbe trial court in overruling objection to tbe solicitor\u2019s characterization of defendant as one of \u201ctbe slickest confidence men we bave bad in tbis court for a long time\u201d must be beld for prejudicial error.\n3. Criminal Law \u00a7 83\u2014\nQuestions asked defendant\u2019s witnesses on cross-examination held prejudicial under the rule laid down in State v. Phillips, 240 N.C. 516.\nAppeal by defendant from Huskins, J., at October 1960 Criminal Term, of BuNCOMbe.\nCriminal prosecution upon a bill of indictment charging defendant G. H. Wyatt, Jr., with embezzling and fraudulently converting to his own use money in the sum of $37.50 belonging to \u201cPestroy Exterminating Company \u2014 John M. Young, President.\u201d\nPlea: Not guilty.\nVerdict: Guilty as found in the bill of indictment.\nJudgment: That defendant be confined in the common jail of Buncombe County for a term of not less than two nor more than five years, and assigned to work under the supervision of the State Prison Department, as provided by law.\nDefendant objects and excepts thereto, and appeals to Supreme Court and assigns error.\nAttorney General Bruton, Assistant Attorney General Harry W. McGalliard for the State.\nSanford W. Brown for defendant, appellant."
  },
  "file_name": "0220-01",
  "first_page_order": 258,
  "last_page_order": 260
}