#### STATE OF NORTH CAROLINA v. FLOYD HOWARD

No. 757A85

(Filed 3 June 1986)

Rape and Allied Offenses § 3— indictment for rape of child under thirteen —failure to charge crime

An indictment alleging the rape of a “child under the age of 13 years” did not allege a criminal offense for a rape which allegedly occurred before the 1 October 1983 amendment to N.C.G.S. § 14-27.2.

APPEAL by defendant from judgment entered by Gudger, J., at the 22 July 1985 session of Superior Court, JACKSON County. Heard in the Supreme Court 15 May 1986.

Lacy H. Thornburg, Attorney General, by Norma S. Harrell, Assistant Attorney General, and David S. Crump, Special Deputy Attorney General, for the State.

John I. Jay for defendant.

PER CURIAM.

Defendant was tried and convicted pursuant to N.C.G.S. § 14-27.2 of rape of a “child under the age of 13 years” upon a bill *141of indictment which alleged that the offense occurred on 15 February 1983. This statute was amended effective 1 October 1983 by substituting “a child under the age of 13 years” for “a child of the age of 12 years or less.” At the time of this alleged offense, the prior statute controlled. The bill of indictment in this case, returned 22 July 1985, although a valid indictment for a rape occurring after 1 October 1983, did not allege a criminal offense for a rape allegedly occurring before the amendment to the statute, 1 October 1983. Therefore, the trial court did not have subject matter jurisdiction and the judgment entered must be arrested. The state may seek an indictment of defendant based upon the statute in effect on 15 February 1983.

Judgment arrested.