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North Carolina v. Beaver11/4/1976
Defendant first challenges the sufficiency of the bill of indictment, contending that the indictment was defective for two reasons: (1) that the house was not sufficiently described, and (2) that ownership was alleged in VanPelt, when actually the property belonged to Barber Scotia College. Defendant made no motion to quash the bill of indictment. Ordinarily, motions to quash after the evidence is in come too late. State v. Walker, 251 N.C. 465, 112 S.E.2d 61 (1960). However, under Rule 10(a) of the Rules of Appellate Procedure, 287 N.C. 671, 698, upon appeal, any party may present for review, by properly raising the issue in the brief, the questions of whether the court had jurisdiction of the subject matter, and whether a
criminal charge is sufficient in law. This is true, notwithstanding the absence of exceptions or assignments of error in the record on appeal. See State v. Thornton, 251 N.C. 658, 111 S.E.2d 901 (1960), for comparable practice under former Rule 21, 221 N.C. 544, 558. Under Rule 10(a), we proceed to examine the bill of indictment in this case which is as follows:
"The Jurors for the State Upon Their Oath Present, That Edward Beaver, late of the County of Cabarrus on the 9th day of December 1974 about the hour of 4:30 A.M. in the night of the same day, with force and arms, at and in the county aforesaid, the dwelling house of one Marvin O. VanPelt there situate, and then and there actually occupied by one Marvin O. VanPelt feloniously and burglariously did break and enter, with intent, the goods and chattels of the said Marvin O. VanPelt in the said dwelling house then and there being, then and there feloniously and burglariously to steal, take and carry away the goods and chattels of Marvin O. VanPelt against the peace and dignity of the State."
In State v. Coffey, 289 N.C. 431, 222 S.E.2d 217 (1976), we approved a bill of indictment almost identical to the one in this case. There, Justice Lake, speaking for the Court, said:
"It is true that an indictment for burglary is fatally defective if it fails to identify the premises broken and entered with sufficient certainty to enable the defendant to prepare his defense and to offer him protection from another prosecution for the same incident. State v. Smith, 267 N.C. 755, 148 S.E.2d 844 (1966). The indictment in the present case charges that the defendant 'in the county aforesaid [Rutherford], the dwelling house of one Doris Matheny there situate, and then and there actually occupied by one Doris Matheny * * * did break and enter' with the requisite intent. This is a sufficient description to withstand a motion to quash."
In present case, defendant testified that at one time he had lived in this house, and admitted that he was there on the night in question. He had ample information on which to prepare his defense. The bill of indictment alleged all the essential elements of the offense with sufficient certainty to (1) identify the offense; (2) protect the accused from being twice put in jeopardy for the same offense; (3) enable the
accused to prepare for trial; and (4) support judgment upon conviction or plea. State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897 (1970). See also Doss v. North Carolina, 252 F. Supp. 298 (M.D.N.C. 1966).
Defendant further contends that the indictment was defective in that it identifies the premises by its occupant VanPelt rather than its owner, Barber Scotia College. Burglary
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