I. GENERAL CONSIDERATION.

Section Not Repealed. - There is no stated purpose in G.S. 15A-641 that indicates the legislature intended to repeal this section. Furthermore, G.S. 15A-641 appears to be an effort by the legislature to codify the common law that permitted the use of presentments by grand juries but prohibited the arrest and trial of defendants on a presentment. Thus, this section has not been repealed and remains a part of the law of this State; it would support the order of the trial court denying defendant's motion to dismiss. State v. Whittle, 118 N.C. App. 130, 454 S.E.2d 688 (1995).

Effect of Statute on Privilege Against Self-Incrimination. - A witness cannot invoke the privilege against self-incrimination where he is either immune from prosecution, or where prosecution is barred by statute of limitations. Leonard v. Williams, 100 N.C. App. 512, 397 S.E.2d 321 (1990).

A legal limitation of time of prosecution is in practical effect expurgation of crime; so after the lapse of time fixed by law, the privilege against self-incrimination ceases. Leonard v. Williams, 100 N.C. App. 512, 397 S.E.2d 321 (1990).

Meaning of "Deceit". - There has never been such an indictable offense as "deceit" but the meaning of this section has always been that misdemeanors, the gist of which was a malice or deceit, were within the exception of the section as formerly appearing. State v. Crowell, 116 N.C. 1052, 21 S.E. 502 (1895).

There being no such offense as "deceit," this term would apply to "cheating by false token" of which deceit was the gist but would not include "conspiracy to cheat" the gist of which offense is the conspiracy and the cheating but an aggravation. "Deceit" is not restricted to "cheating by false token". It is an instance of an offense coming within the general description of misdemeanors by deceit. State v. Christiansbury, 44 N.C. 46 (1852); State v. Crowell, 116 N.C. 1052, 21 S.E. 502 (1895).

Meaning of "Malicious Misdemeanors". - When, in the former wording of this section, the Legislature used the words "other malicious misdemeanors," which immediately followed the words "malicious mischief," it evidently intended to describe offenses of which malice was a necessary ingredient to constitute the criminal act, as in the case of malicious mischief. It was not the purpose to include within the exception from the operation of this section such offenses as would be misdemeanors, even in the absence of malice, and when malice, if present, would be only a circumstance of aggravation, which the court might consider in imposing the punishment. State v. Frisbee, 142 N.C. 671, 55 S.E. 722 (1906).

What Constitutes a Presentment. - See State v. Morris, 104 N.C. 537, 10 S.E. 454 (1889).

Statute Tolled on Date of Indictment or Presentment. - In criminal cases where an indictment or presentment is required, the date on which the indictment or presentment has been brought or found by the grand jury marks the beginning of the criminal proceeding and arrests the statute of limitations. State v. Underwood, 244 N.C. 68, 92 S.E.2d 461 (1956); State v. Hundley, 272 N.C. 491, 158 S.E.2d 582 (1968).

The indictment marks the beginning of the prosecution and it arrests the running of the statute of limitations. State v. Williams, 151 N.C. 660, 65 S.E. 908 (1909).

Prosecution for alleged commission of misdemeanor death by motor vehicle offenses, based on an indictment in Superior Court of North Carolina, was not barred by the two-year statute of limitations because the statute of limitations was tolled by the grand jury returning a presentment and subsequent indictment in an active case in the District Court of North Carolina. State v. Stevens, - N.C. App. - , 831 S.E.2d 364 (2019), review denied, 373 N.C. 583, 837 S.E.2d 892, 2020 N.C. LEXIS 129 (N.C. 2020).

Even If Defendant Is Apprehended and Tried More Than Two Years After Offense. - An indictment or presentment marks the beginning of the prosecution so as to toll the statute of limitations, even though defendant be apprehended and tried more than two years after the offense was committed. State v. Best, 10 N.C. App. 62, 177 S.E.2d 772 (1970).

Issuance of Citation Tolled Statute of Limitations. - It was error to affirm a decision upholding an order granting defendant's motion to dismiss because a citation issued for driving while subject to an impairing substance tolled the statute of limitations, and the citation was a constitutionally and statutorily proper criminal pleading that conveyed jurisdiction to the district court to try defendant; because a citation could serve as the charging document for misdemeanors, the purpose of the statute of limitations was satisfied by its issuance. State v. Curtis, 371 N.C. 355, 817 S.E.2d 187 (2018).

When Statute Tolled on Appeal to Superior Court. - In all misdemeanor cases, where there has been a conviction in an inferior court that had final jurisdiction of the offense charged, upon appeal to the superior court the accused may be tried upon the original warrant and the statute of limitations is tolled from the date of the issuance of the warrant. State v. Underwood, 244 N.C. 68, 92 S.E.2d 461 (1956); State v. Hundley, 272 N.C. 491, 158 S.E.2d 582 (1968).

Entry of Nolle Prosequi "With Leave." - This section does not begin to run from an entry of nolle prosequi "with leave." State v. Williams, 151 N.C. 660, 65 S.E. 908 (1909).

Effect of Preliminary Warrants. - There is no saving clause in this section as to the effect of preliminary warrants before a justice of the peace or other committing magistrate, and the law must be construed and applied as written. There must be a presentment or indictment within two years from the time of the offense committed and not afterwards. State v. Hedden, 187 N.C. 803, 123 S.E. 65 (1924).

Void Warrant Does Not Toll Statute. - The issuance of a void warrant in a misdemeanor prosecution does not toll the running of this section, and where on appeal from a conviction upon such warrant in an inferior court defendant is tried upon an identical indictment returned by the grand jury more than two years after the commission of the offense, he is entitled to quashal of the indictment. State v. Hundley, 272 N.C. 491, 158 S.E.2d 582 (1968).

Defective Indictments Exception Not Applicable to Warrants. - The statute of limitations had run as a result of the defendant being charged with a fatally defective warrant; although defective indictments may be refiled within one year of dismissal, no such exception exists for defective warrants. State v. Madry, 140 N.C. App. 600, 537 S.E.2d 827 (2000).

Trial on Second Bill After Two Years Barred. - Even an indictment within the statutory time limit will not uphold a trial and conviction on a second bill found after the statutory period. State v. Tomlinson, 25 N.C. 32 (1842); State v. Hedden, 187 N.C. 803, 123 S.E. 65 (1924).

No statute of limitation bars the prosecution of a felony. State v. Johnson, 275 N.C. 264, 167 S.E.2d 274 (1969).

Where a warrant charging a misdemeanor is amended to charge a felony, defendant's plea of the statute of limitations on the misdemeanor count becomes immaterial. State v. Sanderson, 213 N.C. 381, 196 S.E. 324 (1938).

Necessity for Pleading Statute. - For a person charged with the commission of a criminal offense to avail himself of the alleged running of the statute of limitations, he must either specifically plead it or in apt time bring it to the attention of the court. State v. Brinkley, 193 N.C. 747, 138 S.E. 138 (1927).

Statute Not Presumed to Have Run. - Upon a trial on indictment for the sale of intoxicants where there was evidence of sales at undisclosed times, it would not be presumed that such sales occurred more than two years next preceding the prosecution when defendant has not pleaded this section, or in apt time called it to the court's attention or offered evidence as to the dates of sale. State v. Colson, 222 N.C. 28, 21 S.E.2d 808 (1942).

Jury is not restricted to the time stated in the indictment, but is at liberty, as directed by the trial judge, to consider acts charged and proved within the two years next before the finding of the indictment. State v. Newsome, 47 N.C. 173 (1855).

Wrong Name in Bill of Indictment. - A bill of indictment against a person by a wrong name, which is pleaded to in abatement, and the plea found, is, nevertheless, the same cause of action, and the elapse of two years is no bar to prosecution. State v. Hailey, 51 N.C. 42 (1858).

Dismissal Proper. - Trial court did not err in dismissing a misdemeanor driving while impaired charge against defendant because prosecution was barred by the applicable two-year statute of limitations where the issuance of a citation did not toll the statute of limitations and the State failed to either commence the prosecution of its case or to issue a warrant, indictment, or presentment that would toll the statute of limitations. State v. Turner, 250 N.C. App. 776, 793 S.E.2d 287 (2016), review denied, 2017 N.C. LEXIS 305 (2017).

Applied in State v. Watts, 32 N.C. 369 (1849); State v. Claywell, 98 N.C. 731, 3 S.E. 920 (1887); United States v. MacCloskey, 682 F.2d 468 (4th Cir. 1982); State v. Taylor, 212 N.C. App. 238, 713 S.E.2d 82 (2011).

Cited in State v. Brown, 81 N.C. App. 281, 343 S.E.2d 553 (1986); DeWitt v. Eveready Battery Co., 144 N.C. App. 143, 550 S.E.2d 511 (2001); State v. Friend, 219 N.C. App. 338, 724 S.E.2d 85 (2012).

II. PARTICULAR OFFENSES.

Adultery is subject to two-year statute of limitations. Leonard v. Williams, 100 N.C. App. 512, 397 S.E.2d 321 (1990).

Bastardy proceedings are not governed by this section. State v. Perry, 122 N.C. 1043, 30 S.E. 139 (1898).

Conspiracy. - The section has no application to conspiracy, which is a felony. State v. Mallett, 125 N.C. 718, 34 S.E. 651 (1899), aff'd, 181 U.S. 589, 21 S. Ct. 730, 45 L. Ed. 1015 (1901).

Each Overt Act of Conspiracy Tolls Statute. - A conspiracy is a continuing offense so that the statute of limitations is tolled as to the original conspiracy each time an overt act is committed in furtherance of the purpose and design of the conspiracy. State v. Brewer, 258 N.C. 533, 129 S.E.2d 262, appeal dismissed, 375 U.S. 9, 84 S. Ct. 72, 11 L. Ed. 2d 40 (1963).

Where a count and the indictment alleged that a conspiracy continued from time to time with the commission of overt acts by the alleged conspirators in furtherance of conspiracy and to effectuate its unlawful purpose within two years of the finding of the indictment, the trial court correctly overruled defendants' motion to quash the first count in the indictment on the ground that a prosecution on such count was barred by this section. State v. Brewer, 258 N.C. 533, 129 S.E.2d 262, appeal dismissed, 375 U.S. 9, 84 S. Ct. 72, 11 L. Ed. 2d 40 (1963).

Conspiracy to commit a misdemeanor is a misdemeanor. State v. Brewer, 258 N.C. 533, 129 S.E.2d 262, appeal dismissed, 375 U.S. 9, 84 S. Ct. 72, 11 L. Ed. 2d 40 (1963).

Influencing Agents and Servants. - Violation of G.S. 14-353, which makes it a crime to influence agents and servants to violate duties owed employers, is not a malicious misdemeanor. State v. Brewer, 258 N.C. 533, 129 S.E.2d 262, appeal dismissed, 375 U.S. 9, 84 S. Ct. 72, 11 L. Ed. 2d 40 (1963).

Public Nuisances. - No length of possession can bar an action to abate a public nuisance. State v. Holman, 104 N.C. 861, 10 S.E. 758 (1889).

I. IN GENERAL.

Constitutionality of Section. - The allowance of a short form indictment for murder violates neither the Sixth Amendment nor the due process clause of the Fourteenth Amendment to the United States Constitution. Hartman v. Lee, 283 F.3d 190 (4th Cir. 2002), cert. denied, 537 U.S. 1114, 123 S. Ct. 851, 154 L. Ed. 2d 789 (2003).

Process of indictment by grand jury pursuant to G.S. 15-144 adequately safeguards a defendant's rights under the Federal and North Carolina Constitutions. State v. Seward, 362 N.C. 210, 657 S.E.2d 356 (2008).

History of Section. - See State v. Talbert, 282 N.C. 718, 194 S.E.2d 822 (1973); State v. Watkins, 283 N.C. 17, 194 S.E.2d 800, cert. denied, 414 U.S. 1000, 94 S. Ct. 353, 38 L. Ed. 2d 235 (1973).

N.C. Const., Art. I, § 23 and G.S. 15A-924(a)(5) did not specifically repeal this section, nor did they repeal it by implication. State v. Avery, 315 N.C. 1, 337 S.E.2d 786 (1985).

This section does not prevail over the language of G.S. 15-155. State v. James, 321 N.C. 676, 365 S.E.2d 579 (1988).

Legislature is empowered to prescribe the form of indictment for murder. State v. Moore, 104 N.C. 743, 10 S.E. 183 (1889); State v. Brown, 106 N.C. 645, 10 S.E. 870 (1890); State v. Arnold, 107 N.C. 861, 11 S.E. 990 (1890).

Section is an abbreviated form for bill of indictment for murder. State v. Puckett, 211 N.C. 66, 189 S.E. 183 (1937).

Short-form indictments are constitutional, even after Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999). State v. Davis, 353 N.C. 1, 539 S.E.2d 243 (2000), cert. denied, 534 U.S. 839, 122 S. Ct. 95, 151 L. Ed. 2d 55 (2001).

The short-form murder indictments authorized by this section and utilized in the defendant's triple-murder case were not unconstitutional. State v. Mitchell, 353 N.C. 309, 543 S.E.2d 830 (2001), cert. denied, 534 U.S. 1000, 122 S. Ct. 475, 151 L. Ed. 2d 389 (2001).

Short-Form Indictment Sufficient to Charge Attempted First-Degree Murder. - Short-form indictment was sufficient to vest the trial court with subject-matter jurisdiction over the attempted first-degree murder charge because the prosecution properly included the legal element of malice aforethought; and, despite the usage of the term "slay" instead of the term "murder," the short-form indictment provided such certainty in the statement of the accusation as would identify the offense with which defendant was charged. State v. Tart, 372 N.C. 73, 824 S.E.2d 837 (2019).

Short-Form Murder Indictment Complied with Statutory Requirements. - Short-form murder indictment did not violate defendant's constitutional rights as it complied with the requirements of G.S. 15-144, for a short-form murder indictment because the indictment contained the language that defendant unlawfully, willfully and feloniously and with malice aforethought killed the victim. State v. Phillips, 151 N.C. App. 185, 565 S.E.2d 697 (2002).

The Supreme Court of North Carolina has consistently held that the short-form indictment is sufficient to charge a defendant with first-degree murder. The short-form murder indictment authorized by G.S. 15-144 gives a defendant notice that he is charged with first-degree murder and that the maximum penalty to which he could be subject is death. State v. Coleman, 161 N.C. App. 224, 587 S.E.2d 889 (2003).

Trial court properly denied defendant's motion to dismiss, with respect to a first-degree murder charge against him based on an underlying felony of attempted rape, as the short-form indictment that was used to charge him was authorized by G.S.15-144, and accordingly, there was no constitutional infirmity; murder indictments that comply with G.S. 15-144 are sufficient to charge first-degree murder on the basis of any theory set forth in G.S. 14-17, which included the charge against defendant. State v. Garcia, 358 N.C. 382, 597 S.E.2d 724 (2004), cert. denied, - U.S. - , 125 S. Ct. 1301, 161 L. Ed. 2d 122 (2005).

Appeals court upheld the use of a short form murder indictment under G.S. 15-144 which stated that: The jurors for North Carolina upon their oath present that on or about the (the date was stated) in (the county was stated). (the defendant's name was stated) did unlawfully, wilfully, and feloniously and of malice aforethought kill and murder (the victim's name was stated). State v. McClain, 169 N.C. App. 657, 610 S.E.2d 783 (2005).

Short-form indictment in the capital murder case met the requirements of G.S. 15-144. State v. Duke, 360 N.C. 110, 623 S.E.2d 11 (2005).

Defendant's attempt to have conviction for attempted first-degree murder vacated based on his claim that the use of a short-form indictment for the crime of attempted murder was not authorized in North Carolina was without merit; G.S. 15-144, when construed with G.S. 15-170, authorized use of a short-form indictment to charge attempted first-degree murder, and the indictment sufficiently alleged the offense of attempted first-degree murder using the statutory language. State v. McVay, 174 N.C. App. 335, 620 S.E.2d 883 (2005).

Defendant had no right to a reversal in his murder trial, despite his claim that the indictment was insufficient for staying only that he violated G.S. 14-17. The indictment the requirements of G.S. 15-144. State v. Elliott, 360 N.C. 400, 628 S.E.2d 735 (2006).

Prisoner's short-form murder indictment provided constitutionally adequate notice because it cited to both the statute authorizing the short-form, pursuant to G.S. 15-144, and to the state's murder statute, pursuant to G.S. 14-17, thus notifying the prisoner that he needed to defend against a charge of first degree murder on any or all grounds, including murder by torture. Stroud v. Polk, 466 F.3d 291 (4th Cir. 2006), cert. denied, 551 U.S. 1134, 127 S. Ct. 2978, 168 L. Ed. 2d 709 (2007).

Use of the short-form indictment for first-degree murder met the requirements of G.S. 15-144. State v. Jacobs, 195 N.C. App. 599, 673 S.E.2d 724 (2009), aff'd, 363 N.C. 815, 689 S.E.2d 859, 2010 N.C. LEXIS 195 (2010).

Trial court did not err by refusing defendant's request to require the State of North Carolina to disclose its felony murder theory before the jury was empaneled because, although the State used a short-form indictment to charge defendant with murder, the indictment was sufficient and the State's legal theories were not factual information subject to inclusion in a bill of particulars. Moreover, defendant failed to establish that defendant could not adequately prepare a defense without knowledge of the State's legal theory. State v. Hicks, 241 N.C. App. 345, 772 S.E.2d 486 (2015).

Defendant's murder indictment complied with the requirements of this section and did not violate his constitutional rights. State v. Holman, 353 N.C. 174, 540 S.E.2d 18 (2000), cert. denied, 534 U.S. 910, 122 S. Ct. 250, 151 L. Ed. 2d 181 (2001), cert. denied, 359 N.C. 854, 619 S.E.2d 854 (2005).

The court rejected the defendant's contention that the use of the short-form murder indictments authorized by this section did not give him sufficient notice and violated his rights to due process, notice, fundamental fairness, and trial by jury. State v. Lytch, 142 N.C. App. 576, 544 S.E.2d 570 (2001), aff'd, 355 N.C. 270, 559 S.E.2d 547 (2002).

Indictment in form prescribed by this section is sufficient. State v. Duncan, 282 N.C. 412, 193 S.E.2d 65 (1972).

An indictment which complies with the short form indictment authorized by this section is sufficient to charge first degree murder without specifically alleging premeditation and deliberation or felony murder. State v. Avery, 315 N.C. 1, 337 S.E.2d 786 (1985), aff'd, 95 N.C. App. 572, 383 S.E.2d 224 (1989).

Short-form murder indictment was constitutionally sufficient to charge the defendant with first-degree murder. State v. Brewington, 352 N.C. 489, 532 S.E.2d 496 (2000), cert denied, 531 U.S. 1165, 121 S. Ct. 1126, 148 L. Ed. 2d 992 (2001).

The murder indictment which complied with G.S. 15-144 was sufficient and did not violate the defendant's due process and equal protection rights under the United States Constitution. State v. Barnett, 141 N.C. App. 378, 540 S.E.2d 423 (2000), appeal dismissed and cert. denied, 353 N.C. 527, 549 S.E.2d 552 (2001).

Defendant was appropriately charged in a short form bill of indictment in accordance with this section. State v. Washington, 142 N.C. App. 657, 544 S.E.2d 249 (2001).

Short-form indictment expressly alleging murder in the first-degree met the requirements of G.S. 15-144. State v. Maske, 358 N.C. 40, 591 S.E.2d 521 (2004).

Short-form murder indictment under G.S. 15-144 was sufficient to allege first-degree murder under theories of both premeditation and deliberation and felony murder. State v. Kaher Maruf Muhammad, 186 N.C. App. 355, 651 S.E.2d 569 (2007), appeal dismissed, 362 N.C. 242, 660 S.E.2d 537 (2008).

Defendant's "short-form" first degree murder indictment complied with the state and federal Constitutions although it failed to charge in the indictment the elements of the crime or aggravating circumstances as "facts (other than prior conviction) that increase the maximum penalty for [the] crime." State v. Smith, 352 N.C. 531, 532 S.E.2d 773 (2000), cert. denied, 532 U.S. 949, 121 S. Ct. 1419, 149 L. Ed. 2d 360 (2001).

Short form indictment was sufficient to charge defendant with first-degree murder. State v. Allen, 162 N.C. App. 587, 592 S.E.2d 31 (2004).

Trial court did not err by trying defendant under the short form bills of indictment issued in a two count first-degree murder case because the indictment provided the defendant with sufficient notice of the charges against him. State v. Squires, 357 N.C. 529, 591 S.E.2d 837 (2003), cert. denied, 541 U.S. 1088, 124 S. Ct. 2818, 159 L. Ed. 2d 252 (2004).

Short-form indictment authorized by G.S. 15-144 was sufficient under both state and federal constitutional standards to support a conviction of first degree murder; there was no merit in defendant's argument that the trial court erred in failing to dismiss the first degree murder indictment against him because it did not specifically allege the elements of premeditation and deliberation. State v. Gladden, 168 N.C. App. 548, 608 S.E.2d 93 (2005), appeal dismissed, cert. denied, - N.C. - , 614 S.E.2d 312 (2005).

Use of a short-form indictment under G.S. 15-144 to charge defendant with first -degree murder complied with the North Carolina and United States Constitutions. State v. Lawson, 194 N.C. App. 267, 669 S.E.2d 768 (2008), review denied, 363 N.C. 378, 679 S.E.2d 837 (2009).

The court declined to find the short-form indictment authorized by this section unconstitutional in light of Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999) for failing to allege all essential elements of first-degree murder. State v. Parker, (N.C. App. Oct. 3, 2000).

Bill of Particulars. - If a defendant is charged with murder in the first degree by bill of indictment drawn under this section, and desires to know whether the State relies on proof the killing was done with premeditation and deliberation, or in the perpetration or attempt to perpetrate a felony, he should apply for a bill of particulars. State v. Haynes, 276 N.C. 150, 171 S.E.2d 435 (1970); State v. McLaughlin, 286 N.C. 597, 213 S.E.2d 238 (1975), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3206, 49 L. Ed. 2d 1208 (1976); State v. May, 292 N.C. 644, 235 S.E.2d 178, reconsideration denied, 293 N.C. 261, 247 S.E.2d 234, cert. denied, 434 U.S. 928, 98 S. Ct. 414, 54 L. Ed. 2d 288 (1977).

Under an indictment for murder in the first degree in the usual form under this section, the State is entitled to introduce evidence that defendant committed the homicide in the perpetration of, or attempt to perpetrate a felony, it being incumbent upon defendant if he desires more definite information to request a bill of particulars. State v. Grayson, 239 N.C. 453, 80 S.E.2d 387 (1954); State v. Scales, 242 N.C. 400, 87 S.E.2d 916 (1955).

Reading to Jury of Indictment Closely Following Section. - An indictment closely following this section could not have prejudiced defendant by its being read in the presence of the jury, even though it is true that in some instances bills of indictment charging murder will contain the words "premeditation and deliberation," the elements that distinguish murder in the first degree from murder in the second degree. State v. Castor, 28 N.C. App. 336, 220 S.E.2d 819, cert. denied and appeal dismissed, 289 N.C. 453, 223 S.E.2d 161 (1976).

When Instruction on Lesser Included Homicides Is Required. - In a felony murder prosecution under an indictment in the form prescribed by this section, evidence that defendant did not commit the underlying felony requires an instruction upon whatever lesser included homicides the indictment and the evidence support. State v. Thomas, 325 N.C. 583, 386 S.E.2d 555 (1989).

A defendant may always show by the evidence not only his innocence under the theory of prosecution chosen by the State, but also his possible guilt of some lesser offense. If this lesser offense is included in the crime charged in the indictment and if there is evidence to support it, defendant is entitled to have it submitted to the jury. These different theories of defense cannot be abrogated by the State's decision to prosecute, nor the trial court's decision to submit the case on only one prosecutorial theory, when under the indictment and the evidence adduced another is more favorable to defendant. State v. Thomas, 325 N.C. 583, 386 S.E.2d 555 (1989).

Trial court may not premise a second-degree murder instruction on the possibility that the jury will accept some of the State's evidence while rejecting other portions of the State's case. State v. Leroux, 326 N.C. 368, 390 S.E.2d 314, cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155 (1990).

Indictment Barred by Collateral Estoppel. - State's first indictment of defendant charging manslaughter of "a natureless living female fetus . . ." was dismissed for failure to allege a material element of manslaughter, (that is, that defendant did kill another living human being), and State did not appeal; therefore, collateral estoppel barred State's second indictment for manslaughter alleging defendant did "kill and slay a living human being . . .," which referred to the same victim and incident. State v. Parsons, 92 N.C. App. 175, 374 S.E.2d 123 (1988), cert. denied, 324 N.C. 340, 378 S.E.2d 805 (1989).

Felony Murder or Lying in Wait. - For all murder cases prosecuted under G.S. 14-17, when there is a conflict in the evidence regarding whether defendant committed the underlying felony or was lying in wait, all lesser degrees of homicide charged in the indictment pursuant to this section and supported by the evidence must be submitted to the jury. State v. Camacho, 337 N.C. 224, 446 S.E.2d 8 (1994).

Instruction on Second-Degree Murder Where Evidence Shows Lying in Wait. - The trial court may not give an instruction on second-degree murder when the State's evidence supports a jury finding of each element of lying in wait and when there is no conflict with respect to such evidence. State v. Leroux, 326 N.C. 368, 390 S.E.2d 314, cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155 (1990).

When the evidence supports a finding that the murder was perpetrated by means of lying in wait and there is no conflict in the evidence, the trial court is not required to instruct the jury on second-degree murder. State v. Leroux, 326 N.C. 368, 390 S.E.2d 314, cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155 (1990).

Applied in State v. Southern Ry., 125 N.C. 666, 34 S.E. 527 (1899); State v. Kirkman, 208 N.C. 719, 182 S.E. 498 (1935); State v. Dills, 210 N.C. 178, 185 S.E. 677 (1936); State v. Hudson, 218 N.C. 219, 10 S.E.2d 730 (1940); State v. Horner, 248 N.C. 342, 103 S.E.2d 694 (1958); State v. Bailey, 254 N.C. 380, 119 S.E.2d 165 (1961); State v. Johnson, 256 N.C. 449, 124 S.E.2d 126 (1962); State v. McGirt, 263 N.C. 527, 139 S.E.2d 640 (1965); State v. Davis, 266 N.C. 633, 146 S.E.2d 646 (1966); State v. White, 271 N.C. 391, 156 S.E.2d 721 (1967); State v. Godwin, 271 N.C. 571, 157 S.E.2d 6 (1967); State v. Crump, 277 N.C. 573, 178 S.E.2d 366 (1971); State v. Allred, 279 N.C. 398, 183 S.E.2d 553 (1971); State v. Fields, 279 N.C. 460, 183 S.E.2d 666 (1971); State v. Roberts, 279 N.C. 500, 183 S.E.2d 647 (1971); State v. Smith, 279 N.C. 505, 183 S.E.2d 649 (1971); State v. Gladden, 279 N.C. 566, 184 S.E.2d 249 (1971); State v. Stimpson, 279 N.C. 716, 185 S.E.2d 168 (1971); State v. Jones, 280 N.C. 60, 184 S.E.2d 862 (1971); State v. Tart, 280 N.C. 172, 184 S.E.2d 842 (1971); State v. Bolin, 281 N.C. 415, 189 S.E.2d 235 (1972); State v. Watkins, 283 N.C. 17, 194 S.E.2d 800 (1973); State v. McLamb, 20 N.C. App. 164, 200 S.E.2d 838 (1973); State v. Castor, 285 N.C. 286, 204 S.E.2d 848 (1974); State v. Glenn, 22 N.C. App. 6, 205 S.E.2d 352 (1974); State v. Boyd, 287 N.C. 131, 214 S.E.2d 14 (1975); State v. Shrader, 290 N.C. 253, 225 S.E.2d 522 (1976); State v. Johnson, 28 N.C. App. 265, 220 S.E.2d 834 (1976); State v. Jerrett, 309 N.C. 239, 307 S.E.2d 339 (1983); State v. Brown, 312 N.C. 237, 321 S.E.2d 856 (1984); State v. Albert, 312 N.C. 567, 324 S.E.2d 233 (1985); State v. Stroud, 147 N.C. App. 549, 557 S.E.2d 544 (2001), cert. denied, 356 N.C. 623, 575 S.E.2d 758 (2002); State v. Smith, 152 N.C. App. 29, 566 S.E.2d 793 (2002); State v. Dudley, 151 N.C. App. 711, 566 S.E.2d 843 (2002); State v. Fisher, 158 N.C. App. 133, 580 S.E.2d 405 (2003), cert. denied, 357 N.C. 464, 586 S.E.2d 274 (2003), aff'd, 358 N.C. 215, 593 S.E.2d 583 (2004); State v. Byrd, 164 N.C. App. 522, 596 S.E.2d 860 (2004); State v. Schalow, - N.C. App. - , 837 S.E.2d 593 (2020).

Cited in State v. Thornton, 211 N.C. 413, 190 S.E. 758 (1937); State v. Godwin, 211 N.C. 419, 190 S.E. 761 (1937); State v. Smith, 221 N.C. 278, 20 S.E.2d 313 (1942); State v. Roman, 235 N.C. 627, 70 S.E.2d 857 (1952); State v. Gay, 251 N.C. 78, 110 S.E.2d 458 (1959); State v. Jones, 254 N.C. 450, 119 S.E.2d 213 (1961); State v. Foust, 258 N.C. 453, 128 S.E.2d 889 (1963); State v. Shaw, 263 N.C. 99, 138 S.E.2d 772 (1964); State v. Todd, 264 N.C. 524, 142 S.E.2d 154 (1965); State v. Swann, 272 N.C. 215, 158 S.E.2d 80 (1967); State v. Parker, 279 N.C. 168, 181 S.E.2d 432 (1971); State v. Patterson, 284 N.C. 190, 200 S.E.2d 16 (1973); State v. Bunn, 283 N.C. 444, 196 S.E.2d 777 (1973); State v. Davis, 284 N.C. 701, 202 S.E.2d 770 (1974); State v. Luther, 285 N.C. 570, 206 S.E.2d 238 (1974); State v. Clark, 22 N.C. App. 81, 206 S.E.2d 252 (1974); State v. Ward, 286 N.C. 304, 210 S.E.2d 407 (1974); State v. Peterson, 24 N.C. App. 404, 210 S.E.2d 883 (1975); State v. White, 286 N.C. 395, 211 S.E.2d 445 (1975); State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975); State v. Bock, 288 N.C. 145, 217 S.E.2d 513 (1975); State v. Carey, 288 N.C. 254, 218 S.E.2d 387 (1975); State v. McZorn, 288 N.C. 417, 219 S.E.2d 201 (1975); State v. Lester, 289 N.C. 239, 221 S.E.2d 268 (1976); State v. Harris, 289 N.C. 275, 221 S.E.2d 343 (1976); State v. Cox, 289 N.C. 414, 222 S.E.2d 246 (1976); State v. Brower, 289 N.C. 644, 224 S.E.2d 551 (1976); State v. Taylor, 290 N.C. 220, 226 S.E.2d 23 (1976); State v. Cawthorne, 290 N.C. 639, 227 S.E.2d 528 (1976); State v. Chavis, 30 N.C. App. 74, 226 S.E.2d 398 (1976); State v. Perry, 291 N.C. 586, 231 S.E.2d 262 (1977); State v. Jones, 291 N.C. 681, 231 S.E.2d 252 (1977); State v. Hopper, 292 N.C. 580, 234 S.E.2d 580 (1977); State v. Foster, 293 N.C. 674, 239 S.E.2d 449 (1977); State v. Smith, 294 N.C. 365, 241 S.E.2d 674 (1978); State v. Freeman, 295 N.C. 210, 244 S.E.2d 680 (1978); State v. Connley, 295 N.C. 327, 245 S.E.2d 663 (1978); State v. Ford, 297 N.C. 144, 254 S.E.2d 14 (1979); State v. Johnson, 298 N.C. 47, 257 S.E.2d 597 (1979); State v. Allison, 298 N.C. 135, 257 S.E.2d 417 (1979); State v. Silhan, 302 N.C. 223, 275 S.E.2d 450 (1981); State v. Norwood, 303 N.C. 473, 279 S.E.2d 550 (1981); State v. Wall, 304 N.C. 609, 286 S.E.2d 68 (1982); State v. McGee, 60 N.C. App. 658, 299 S.E.2d 796 (1983); Burrow v. Randolph County Bd. of Educ., 61 N.C. App. 619, 301 S.E.2d 704 (1983); State v. Hinson, 310 N.C. 245, 311 S.E.2d 256 (1984); State v. Ledford, 315 N.C. 599, 340 S.E.2d 309 (1986); State v. Hickey, 317 N.C. 457, 346 S.E.2d 646 (1986); State v. Evangelista, 319 N.C. 152, 353 S.E.2d 375 (1987); State v. Collins, 335 N.C. 729, 440 S.E.2d 559 (1994); State v. Ward, 338 N.C. 64, 449 S.E.2d 709 (1994), cert. denied, 514 U.S. 1134, 115 S. Ct. 2014, 131 L. Ed. 2d 1012 (1995), cert. denied, 343 N.C. 757, 473 S.E.2d 626 (1996), cert. denied, 354 N.C. 74,
571 S.E.2d 835 (2001); State v. Richmond, 347 N.C. App. 412, 495 S.E.2d 677 (1998); State v. Riley, 137 N.C. App. 403, 528 S.E.2d 590 (2000), cert. denied, 352 N.C. 596, 545 S.E.2d 218 (2000); State v. Steen, 352 N.C. 227, 536 S.E.2d 1 (2000), cert denied, 531 U.S. 1167, 121 S. Ct. 1131, 148 L. Ed. 2d 997 (2001); State v. Hunt, 357 N.C. 257, 582 S.E.2d 593, cert. denied, 539 U.S. 985, 124 S. Ct. 44, 156 L. Ed. 2d 702 (2003); State v. Reynolds, 160 N.C. App. 579, 586 S.E.2d 798 (2003), cert. denied, 358 N.C. 548, 599 S.E.2d 916 (2004); State v. Roache, 358 N.C. 243, 595 S.E.2d 381 (2004); State v. McNeill, 360 N.C. 231, 624 S.E.2d 329 (2006); State v. Burgess, 181 N.C. App. 27, 639 S.E.2d 68 (2007), cert. denied 717 S.E.2d 384, 2011 N.C. LEXIS 728 (N.C. 2011); State v. Taylor, 362 N.C. 514, 669 S.E.2d 239 (2008), cert. denied, 558 U.S. 851, 130 S. Ct. 129, 175 L. Ed. 2d 84 (2009); State v. Hartley, 212 N.C. App. 1, 710 S.E.2d 385 (2011), review denied 717 S.E.2d 383, 2011 N.C. LEXIS 695 (N.C. 2011).

II. REQUIREMENTS OF INDICTMENT.

This section contains no requirement that the indictment specify the degree of murder sought. State v. King, 311 N.C. 603, 320 S.E.2d 1 (1984).

Indictment must be sufficient in form to allege murder and support a conviction of murder in the first degree under this section. State v. Frazier, 280 N.C. 181, 185 S.E.2d 652, death sentence vacated, 409 U.S. 1004, 93 S. Ct. 453, 34 L. Ed. 2d 295 (1972).

Indictment Under Section Fully Informs Defendant. - Where an indictment is drawn according to this section the defendant is given full information of the crime on which he is being tried. State v. Puckett, 211 N.C. 66, 189 S.E. 183 (1937).

Section Does Not State What Is Necessary. - This section declares an indictment containing certain words "sufficient," but it does not make those words essential, nor by any reasonable construction can it be held to make technical and "sacramental" words which were not theretofore necessary in indictments for murder. State v. Arnold, 107 N.C. 861, 11 S.E. 990 (1890).

The indictment satisfied the requirements of this section where it stated: The jurors for the State upon their oath present that on or about the date of offense shown and in the county named above the defendant named above unlawfully, willfully and feloniously and of malice aforethought did kill and murder [the victim]. State v. Hammonds, 141 N.C. App. 152, 541 S.E.2d 166 (2000).

First degree murder indictment that stated in part that defendant "unlawfully, willfully, and feloniously did. .. of malice aforethought kill and murder Rudolph Hughes. This act was in violation of North Carolina General Statute 14-17," was a valid short form indictment under G.S. 15-144. State v. Hester, 216 N.C. App. 286, 715 S.E.2d 905 (2011), dismissed and review denied, 365 N.C. 563, 724 S.E.2d 917, 2012 N.C. LEXIS 271 (2012).

Indictment contained all the necessary elements of the offense of second degree murder as a B2 felony because it alleged that defendant unlawfully, willfully, and feloniously and of malice aforethought did kill and murder the victim. State v. Schmieder, 265 N.C. App. 95, 827 S.E.2d 322 (2019), review dismissed, 372 N.C. 711, 830 S.E.2d 832, 2019 N.C. LEXIS 730 (2019).

Indictment for Murder Need Not Allege All Elements of Crimes Charged. - Short-form indictments which complied with this section were constitutional although they failed to allege all of the elements of the crimes charged, specifically, those elements which differentiate first-degree murder, rape, and sexual offense from second-degree murder, rape, and sexual offense. State v. Wallace, 351 N.C. 481, 528 S.E.2d 326, cert. denied, 531 U.S. 1018, 121 S. Ct. 581, 148 L. Ed. 2d 498 (2000).

The defendant's indictments were valid although they did not allege premeditation, deliberation, and specific intent to kill. State v. Choppy, 141 N.C. App. 32, 539 S.E.2d 44 (2000).

Indictment Need Not Allege That Murder Was Punishable by Death. - Premeditation and deliberation did not have to be separately alleged in the defendant's short-form indictment which charged him with first-degree murder and, since the death penalty is the prescribed statutory maximum punishment for first-degree murder in North Carolina, no additional facts needed to be charged in the indictment to provide the defendant with notice that he was charged with first-degree murder and that the maximum penalty to which he could be subjected was death. State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000), cert. denied, 531 U.S. 1130, 121 S. Ct. 890, 148 L. Ed. 2d 797 (2001).

Indictment for murder need not allege deliberation and premeditation. State v. Duncan, 282 N.C. 412, 193 S.E.2d 65 (1972).

Failure to Allege Premeditation and Deliberation Not a Constitutional Violation. - The court rejected the defendant's argument that because the indictment failed to allege two essential elements of first degree murder, i.e., premeditation and deliberation, his conviction of first degree murder based thereon violated Article I, G.S. 19, 22 and 23 of the North Carolina Constitution. The court found that the defendant had adequate notice of the charge against him, as North Carolina has for nearly 100 years authorized the use of the short form murder indictment as sufficient to allege the elements of premeditation and deliberation, and the jury was properly required to find those elements beyond a reasonable doubt. State v. Holder, 138 N.C. App. 89, 530 S.E.2d 562 (2000).

An indictment of murder in the first degree need not allege deliberation and premeditation, an indictment in the form prescribed by this section being sufficient. State v. Kirksey, 227 N.C. 445, 42 S.E.2d 613 (1947).

By virtue of this section premeditation and deliberation do not have to be alleged in an indictment for first degree murder. State v. Lowe, 295 N.C. 596, 247 S.E.2d 878 (1978).

In a case in which defendant was convicted for, inter alia, first degree murder, he argued unsuccessfully on appeal that the trial court erred in refusing to dismiss the short-form indictment because the indictment did not include the requisite elements of premeditation and deliberation to charge him with first degree murder, nor did it allege the elements of felony murder. Specifically alleging premeditation and deliberation was not required by G.S. 15-144. State v. Stitt, 201 N.C. App. 233, 689 S.E.2d 539 (2009), review denied 364 N.C. 246, 699 S.E.2d 920, 2010 N.C. LEXIS 493 (2010).

Nor That Murder was Committed in Course of Felony. - A bill of indictment, drawn in the statutory from as required by this section, includes the charge of murder committed in the perpetration of a robbery, without a specific allegation or count to that effect. State v. Smith, 223 N.C. 457, 27 S.E.2d 114 (1943).

It is not required that an indictment allege that a murder was committed in the perpetration of a robbery or other felony in order that it be sufficient to support a verdict of murder in the first degree. State v. Frazier, 280 N.C. 181, 185 S.E.2d 652, death sentence vacated, 409 U.S. 1004, 93 S. Ct. 453, 34 L. Ed. 2d 295 (1972).

It is not necessary that an indictment for murder committed in the attempt to perpetrate larceny should contain a specific allegation of the attempted larceny, such allegation not having been necessary in indictments prior to the adoption of the section. State v. Covington, 117 N.C. 834, 23 S.E. 337 (1895).

Short-form murder indictment which did not allege premeditation nor the elements of felony murder was held not defective. State v. Harris, 323 N.C. 112, 371 S.E.2d 689 (1988).

Indictment Need Not State Victim's Sex. - An indictment is not defective for failure to allege whether the person killed was a man or woman, or whether the mortal wound was inflicted by poisoning, stabbing or shooting. State v. Pate, 121 N.C. 659, 28 S.E. 354 (1897).

Nor Defendant's County of Residence. - Defendant's county of residence is not an element of murder and not required to be proved at trial. Therefore, it need not be alleged. State v. Carswell, 40 N.C. App. 752, 253 S.E.2d 635, cert. denied, 297 N.C. 613, 257 S.E.2d 220 (1979).

Omission of the county of defendant's residence from murder indictment did not make the indictment fatally defective, since the county of defendant's residence did not have to be proved. State v. James, 321 N.C. 676, 365 S.E.2d 579 (1988).

Word "willfully" is not essential to validity of an indictment for murder, neither at common law nor under this section. State v. Kirkman, 104 N.C. 911, 10 S.E. 312 (1889); State v. Harris, 106 N.C. 682, 11 S.E. 377 (1890); State v. Arnold, 107 N.C. 861, 11 S.E. 990 (1890).

Omission of Word "Wound" Not Fatal. - The omission of the word "wound" in an indictment for murder was held not fatal, long before the adoption of the present short form of indictment for murder under this section. State v. Rinehart, 75 N.C. 52 (1876); State v. Ratliff, 170 N.C. 707, 86 S.E. 997 (1915).

Malice Is Necessary Allegation. - A murder indictment should not fail to charge malice, as it is a necessary allegation in a murder indictment. State v. Moore, 284 N.C. 485, 202 S.E.2d 169 (1974).

Failure to Allege Malice Aforethought - Where defendant's indictment for attempted first degree murder was deficient, under N.C. Const. art. I, § 22 and G.S. 15-144, as it omitted the phrase "and of his malice aforethought," the appellate court, after defendant was convicted by a jury of attempted first degree murder, arrested the judgment and remanded the matter for sentencing and the entry of judgment for attempted voluntary manslaughter, which the indictment supported. State v. Bullock, 154 N.C. App. 234, 574 S.E.2d 17, appeal dismissed, 357 N.C. 64, 579 S.E.2d 396, cert. denied, 540 U.S. 928, 124 S. Ct. 338, 157 L. Ed. 2d 231 (2003).

Remand for sentencing and entry of judgment for attempted voluntary manslaughter was appropriate because, although the indictment against defendant for attempted first-degree murder failed to include the essential element of malice aforethought, the jury's guilty verdict of attempted first-degree murder necessarily meant that they found all of the elements of the lesser-included offense of attempted voluntary manslaughter. State v. Wilson, 236 N.C. App. 472, 762 S.E.2d 894 (2014).

Meaning of "Malice Aforethought." - The term "malice aforethought," which is used in an indictment conforming to this section cannot be held to import into the definition of first degree murder the element of premeditation or deliberation. Indeed, it is rather definitely indicated that it relates rather to the prior existence of the malice which motivates the murder than to a previously entertained purpose. State v. Lowe, 295 N.C. 596, 247 S.E.2d 878 (1978).

Omission of the phrase "with force and arms" does not render a defendant's indictment for murder fatally defective. State v. James, 321 N.C. 676, 365 S.E.2d 579 (1988).

Indictment need not include aggravating circumstances or differentiate first-degree murder from second-degree murder. State v. Lawrence, 352 N.C. 1, 530 S.E.2d 807 (2000).

Essentials Make No Distinction Between First and Second Degree Murder. - The essentials for bills of indictment charging homicide make no distinction between an indictment charging murder in the first degree from one charging murder in the second degree. State v. Castor, 28 N.C. App. 336, 220 S.E.2d 819, cert. denied and appeal dismissed, 289 N.C. 453, 223 S.E.2d 161 (1976).

An indictment which meets the requirements of this section will support a plea of guilty to or a conviction of either first or second degree murder. State v. King, 311 N.C. 603, 320 S.E.2d 1 (1984).

A prosecutor is not required to determine, before the return of the indictment, whether he will ultimately prosecute a defendant for murder in the first or second degree. State v. King, 311 N.C. 603, 320 S.E.2d 1 (1984).

The State is not required at any time to elect a theory upon which it will proceed against defendant on a charge of first degree murder, and it is proper for the trial court to submit the issue of defendant's guilt of that charge to the jury on each of the theories of first degree murder supported by substantial evidence presented at trial; rather than have the jury render a general verdict if it finds defendant guilty of first degree murder, the better practice is for the trial court to have the jury specify the theory or theories upon which it finds first degree murder to have been established beyond a reasonable doubt. State v. Clark, 325 N.C. 677, 386 S.E.2d 191 (1989).

Effect of State's Election of Felony Murder Theory. - The State's election to try a homicide case, and the trial judge's submission of it to the jury, only on a felony murder theory did not in effect acquit defendant of murder on a theory of premeditation and deliberation and all of its lesser included homicide offenses. State v. Thomas, 325 N.C. 583, 386 S.E.2d 555 (1989), holding that the jury should have been instructed on involuntary murder under the circumstances.

Short-Form Indictments Did Not Have to Allege Aggravating Factors. - Where defendant pled guilty to second-degree murder, the trial court did not err in finding the fact that the victim was eight months pregnant to be an aggravating factor and in sentencing him in the aggravated range; as defendant was indicted using a short-form murder indictment, the aggravating factors were not required to be alleged. State v. Hasty, 181 N.C. App. 144, 639 S.E.2d 94 (2007).

Offenses Which Indictment Will Support. - An indictment for homicide in the words of this section will support a verdict of murder in the first degree, murder in the second degree, or manslaughter. State v. Talbert, 282 N.C. 718, 194 S.E.2d 822 (1973).

A bill of indictment drawn in the words of this section is sufficient to support a conviction of murder in the first degree. State v. Davis, 290 N.C. 511, 227 S.E.2d 97 (1976).

An indictment in the form declared by this section to be sufficient to charge the offense of murder is also sufficient to sustain judgment entered upon defendant's plea of nolo contendere to the lesser included offense of voluntary manslaughter. State v. Young, 18 N.C. App. 576, 197 S.E.2d 237, cert. denied, 283 N.C. 758, 198 S.E.2d 729 (1973).

An indictment drawn in accordance with this section is sufficient to sustain a verdict of guilty of murder in the first degree based upon a finding that defendant killed with malice, premeditation and deliberation, or that defendant killed in the perpetration or attempted perpetration of any arson, rape, robbery, burglary or other felony. State v. May, 292 N.C. 644, 235 S.E.2d 178, reconsideration denied, 293 N.C. 261, 247 S.E.2d 234, cert. denied, 434 U.S. 928, 98 S. Ct. 414, 54 L. Ed. 2d 288 (1977).

An indictment for murder in the form prescribed by this section is sufficient to support a verdict of guilty of murder in the first degree if the jury finds from the evidence beyond a reasonable doubt that defendant killed the deceased with malice and after premeditation and deliberation or in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony. State v. Thompson, 280 N.C. 202, 185 S.E.2d 666 (1972); State v. Moore, 284 N.C. 485, 202 S.E.2d 169 (1974); State v. McLaughlin, 286 N.C. 597, 213 S.E.2d 238 (1975), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3206, 49 L. Ed. 2d 1208 (1976); State v. Williams, 304 N.C. 394, 284 S.E.2d 437 (1981).

A bill is sufficient to sustain a verdict of murder in the first degree if the jury should find from the evidence, beyond a reasonable doubt, that the killing was done with malice and after premeditation and deliberation; or in the perpetration or attempt to perpetrate a robbery. State v. Haynes, 276 N.C. 150, 171 S.E.2d 435 (1970).

An indictment under this section will support a verdict of murder in the first degree if the jury finds beyond a reasonable doubt that an accused killed with malice and after premeditation and deliberation or in the perpetration or attempted perpetration of any arson, rape, robbery, burglary or other felony the commission of which creates any substantial foreseeable human risk and actually results in loss of life. State v. Bush, 289 N.C. 159, 221 S.E.2d 333, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976).

A bill of indictment meeting the requirements of this section concerning murder will support a conviction or plea of guilty to murder in the first degree as well as to murder in the second degree. State v. Melton, 307 N.C. 370, 298 S.E.2d 673 (1983).

The short-form indictment drawn in accordance with this section is sufficient to charge murder in the first degree under a theory of lying in wait, just as it is sufficient to charge murder in the first degree on the theory of felony murder or premeditation and deliberation. State v. Brown, 320 N.C. 179, 358 S.E.2d 1, cert. denied, 484 U.S. 970, 108 S. Ct. 467, 98 L. Ed. 2d 406 (1987).

An indictment in the form prescribed by this section will support a verdict finding the defendant guilty of first-degree murder upon any of the theories set forth in G.S. 14-17 or guilty of any lesser offense included within any of those theories. The test in every case involving the propriety of an instruction on a lesser grade of an offense is not whether the jury could convict defendant of the lesser crime, but whether the State's evidence is positive as to each element of the crime charged and whether there is any conflicting evidence relating to any of these elements. State v. Leroux, 326 N.C. 368, 390 S.E.2d 314, cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155 (1990).

Where the indictment was insufficient to allege attempted first degree murder because the indictment failed to include the essential element of malice aforethought, but was sufficient to allege voluntary manslaughter, the case could be remanded for sentencing and entry of judgment for attempted voluntary manslaughter based on the jury's verdict. State v. Bullock, - N.C. App. - , 566 S.E.2d 768 (2002).

G.S. 15-144, when construed alongside G.S. 15-170, implicitly authorizes the State to utilize a short-form indictment to charge attempted first-degree murder; when drafting such a indictment, it is sufficient for statutory purposes for the State to allege that the accused person feloniously, willfully, and of his malice aforethought, did (attempt to) kill and murder the named victim. State v. Jones, 359 N.C. 832, 616 S.E.2d 496 (2005).

Indictment Sufficient to Charge Conspiracy to Murder. - See State v. Graham, 24 N.C. App. 591, 211 S.E.2d 805, cert. denied, 287 N.C. 262, 214 S.E.2d 434 (1975).

Use of Short-Form Indictment Insufficient to Charge Attempted Murder. - The application of G.S. 15-144 to indictments for attempted murder goes beyond the plain language of the statute, and absent statutory authority for a short-form indictment, the State must allege all essential elements of the crime charged; nothing in G.S. 15-153 or G.S. 15-155, which dealt with certain informalities and defects that did not vitiate a warrant or indictment, dispensed with the requirement that the essential elements of the offense had to be charged. State v. Watkins, 169 N.C. App. 518, 610 S.E.2d 746 (2005), cert. denied, appeal dismissed, - N.C. - , 624 S.E.2d 632 (2005).

Where the original indictment charging defendant with attempted first-degree murder was constitutionally and statutorily sufficient to provide jurisdiction, allege attempted voluntary manslaughter, and was not fatally defective, no manifest necessity existed to declare a mistrial over defendant's objections, the State was barred from re-indicting defendant on attempted murder or manslaughter and the trial court erred by denying defendant's motion to dismiss the subsequent indictment. Therefore, defendant's double jeopardy rights were violated by his subsequent indictment, prosecution, trial, and conviction of attempted first-degree murder. State v. Schalow, 251 N.C. App. 334, 795 S.E.2d 567 (2016).

Felony murder may be proven although murder is charged in the language of this section. State v. Lee, 277 N.C. 216, 176 S.E.2d 765 (1970); State v. Swift, 290 N.C. 383, 226 S.E.2d 652 (1976).

An indictment charging the essential facts of murder as required by this section is sufficient to sustain the court's charge based upon the evidence in the case relative to murder committed in the perpetration of robbery or other felony. State v. Fogleman, 204 N.C. 401, 168 S.E. 536 (1933).

Proof of Felony Murder Under Indictment for Different Offense. - An indictment for homicide in the language of this section is sufficient and proof that the murder was committed in the perpetration of a felony constitutes no variance. State v. Crawford, 260 N.C. 548, 133 S.E.2d 232 (1963).

Where indictment charged capital felony of murder in the language of this section and contained every necessary averment, proof that murder was committed in the perpetration of felony constituted no variance between allegata and probata. State v. Mays, 225 N.C. 486, 35 S.E.2d 494 (1945); State v. Grayson, 239 N.C. 453, 80 S.E.2d 387 (1954); State v. Scales, 242 N.C. 400, 87 S.E.2d 916 (1955).

Variance in Time Held Not Fatal. - Where an indictment for murder charged the killing to have taken place December 5 and the evidence showed that, while the deceased was wounded on that day, he died three days thereafter, and before the bill of indictment was found, the variance was not fatal. State v. Pate, 121 N.C. 659, 28 S.E. 354 (1897).

I. GENERAL CONSIDERATION.

Purpose of Section. - This law was certainly designed to uphold the execution of public justice, by freeing the courts from those fetters of form, technicality, and refinement, which do not concern the substance of the charge, and the proof to support it. Many of the stages of the law had before called nice objections of this sort a disease of the law, and a reproach to the bench, and lamented that they were bound down to strict and precise precedents. The Legislature meant to disallow the whole of them, and only require the substance, that is a direct averment of those facts and circumstances which constitute the crime, to be set forth. It is to be remarked that the act directs the court to proceed to judgment, without regard to two things - one of the form, the other refinement. State v. Moses, 13 N.C. 452 (1830); State v. Hester, 122 N.C. 1047, 29 S.E. 380 (1898); State v. Barnes, 122 N.C. 1031, 29 S.E. 381 (1898); State v. Hedgecock, 185 N.C. 714, 117 S.E. 47 (1923); State v. Switzer, 187 N.C. 88, 121 S.E. 43 (1924).

This section and G.S. 15-155 were passed to forbid refinements and technicalities which, without being any aid to the innocent, brought the administration of justice into disrepute. State v. Leeper, 146 N.C. 655, 61 S.E. 585 (1908), overruled on other grounds, In re Alamance County Court Facilities, 329 N.C. 84, 405 S.E.2d 125 (1991).

This section was designed to free the courts from the fetters of form, technicality and refinement not concerned with the substance of the charge. State v. Taylor, 280 N.C. 273, 185 S.E.2d 677 (1972).

This section was enacted to simplify forms of indictment. State v. Russell, 282 N.C. 240, 192 S.E.2d 294 (1972).

Liberal Construction. - This section has received a very liberal construction, and its efficacy has reached and healed numerous defects in the substance as well as in the form of indictment. State v. Smith, 63 N.C. 234 (1869); State v. Carpenter, 173 N.C. 767, 92 S.E. 373 (1917).

This section has received a very liberal construction. State v. Greer, 238 N.C. 325, 77 S.E.2d 917 (1953); State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897 (1970), cert. denied, 403 U.S. 940, 91 S. Ct. 2258, 29 L. Ed. 2d 719 (1971); State v. Russell, 282 N.C. 240, 192 S.E.2d 294 (1972); State v. Beach, 283 N.C. 261, 196 S.E.2d 214 (1973).

Rule Also Applied in Defendant's Favor. - Although the rule prohibiting reliance upon technicalities applies only against defendants, it is in accordance with the spirit of the section that it should be invoked in their favor also, for example as to the form of defendant's objection to the indictment. State v. Wood, 175 N.C. 809, 95 S.E. 1050 (1918).

Purpose of the warrant or indictment is (1) to give the defendant notice of the charge against him to the end that he may prepare his defense and to be in a position to plead former acquittal or former conviction in the event he is again brought to trial for the same offense; (2) to enable the court to know what judgment to pronounce in case of conviction. State v. Dorsett, 272 N.C. 227, 158 S.E.2d 15 (1967).

Purposes of Requirements as to Form of Indictments. - An indictment, whether at common law or under a statute, to be good must allege lucidly and accurately all the essential elements of the offense endeavored to be charged. The purpose of such constitutional provisions is: (1) to provide such certainty in the statement of the accusation as will identify the offense with which the accused is sought to be charged; (2) to protect the accused from being twice put in jeopardy for the same offense; (3) to enable the accused to prepare for trial; and (4) to enable the court, on conviction or plea of nolo contendere or guilty, to pronounce sentence according to the rights of the case. State v. Arnold, 285 N.C. 751, 208 S.E.2d 646 (1974).

Two Theories Alleged in Single Count. - Where, in a single count of an indictment, the State alleged two factual underpinnings for, or factual theories of, conviction for a violation of G.S. 14-230, it was not required that the State prove both; proof of only one factual theory was legally sufficient and at most placed the State at risk of failing to persuade the jury of defendant's guilt. State v. Birdsong, 325 N.C. 418, 384 S.E.2d 5 (1989).

Indictment Under Private Statute. - Upon an indictment under a private statute, it is sufficient if the same is set forth by chapter and date and its material provisions incorporated in the indictment. State v. Heaton, 77 N.C. 505 (1877).

Holding Prisoner Where Indictment Is Defective. - Where the indictment should have been quashed because it was defective in form, the prisoner could still be held for a proper bill under this section. State v. Callett, 211 N.C. 563, 191 S.E. 27 (1937).

Applied in State v. Anderson, 208 N.C. 771, 182 S.E. 643 (1935); State v. Dale, 218 N.C. 625, 12 S.E.2d 556 (1940); State v. Blanton, 227 N.C. 517, 42 S.E.2d 663 (1947); State v. Avery, 236 N.C. 276, 72 S.E.2d 670 (1952); State v. Smith, 240 N.C. 99, 81 S.E.2d 263 (1954); State v. Nugent, 243 N.C. 100, 89 S.E.2d 781 (1955); State v. Cruse, 253 N.C. 456, 117 S.E.2d 49 (1960); State v. Teeter, 264 N.C. 162, 141 S.E.2d 253 (1965); State v. Bowden, 272 N.C. 481, 158 S.E.2d 493 (1968); State v. Shipman, 14 N.C. App. 577, 188 S.E.2d 741 (1972); State v. Locklear, 21 N.C. App. 48, 203 S.E.2d 63 (1974); State v. McAllister, 287 N.C. 178, 214 S.E.2d 75 (1975); State v. Hill, 31 N.C. App. 248, 229 S.E.2d 810 (1976).

Cited in State v. Beal, 199 N.C. 278, 154 S.E. 604 (1930); State v. Puckett, 211 N.C. 66, 189 S.E. 183 (1937); State v. Wilson, 218 N.C. 769, 12 S.E.2d 654 (1941); State v. Miller, 231 N.C. 419, 57 S.E.2d 392 (1950); State v. Felton, 239 N.C. 575, 80 S.E.2d 625 (1954); State v. Bissette, 250 N.C. 514, 108 S.E.2d 858 (1959); State v. Brewer, 258 N.C. 533, 129 S.E.2d 262 (1963); Klopfer v. North Carolina, 385 U.S. 916, 87 S. Ct. 226, 17 L. Ed. 2d 141 (1966); State v. Greenlee, 272 N.C. 651, 159 S.E.2d 22 (1968); State v. Crutchfield, 5 N.C. App. 586, 169 S.E.2d 43 (1969); State v. Teasley, 9 N.C. App. 477, 176 S.E.2d 838 (1970); State v. Frinks, 19 N.C. App. 271, 198 S.E.2d 570 (1973); State v. Sturdivant, 304 N.C. 293, 283 S.E.2d 719 (1981); State v. Snyder, 343 N.C. 61, 468 S.E.2d 221 (1996); State v. Hall, 131 N.C. App. 427, 508 S.E.2d 8 (1998), aff'd, 350 N.C. 303, 513 S.E.2d 561 (1999); State v. Estes, 186 N.C. App. 364, 651 S.E.2d 598 (2007), review denied, appeal dismissed, 362 N.C. 365, 661 S.E.2d 883 (2008); State v. McCallum, 187 N.C. App. 628, 653 S.E.2d 915 (2007); State v. Tollison, 190 N.C. App. 552, 660 S.E.2d 647 (2008).

II. FORM AND SUFFICIENCY OF INDICTMENTS AND WARRANTS.

A. IN GENERAL.

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Flexible Pleading Standards. - Flexible pleading standards are expressed in the statutes. State v. Williams, 368 N.C. 620, 781 S.E.2d 268 (2016).

Plain, intelligible and explicit charge is all that is now required in any criminal proceeding. State v. Smith, 63 N.C. 234 (1869); State v. Caylor, 178 N.C. 807, 101 S.E. 627 (1919). See also State v. Everhardt, 203 N.C. 610, 166 S.E. 738 (1932); State v. Howley, 220 N.C. 113, 16 S.E.2d 705 (1941).

If a warrant is sufficiently intelligible and explicit to (1) inform the defendant of the charge he must answer, (2) enable him to prepare his defense, and (3) sustain the judgment, it meets the requirements of this section. State v. Sumner, 232 N.C. 386, 61 S.E.2d 84 (1950).

A bill is sufficient if it charges the offense in a plain, intelligible and explicit manner, with averments sufficient to enable the court to proceed to judgment and to bar a subsequent prosecution for the same offense. State v. Taylor, 280 N.C. 273, 185 S.E.2d 677 (1972); State v. Arnold, 285 N.C. 751, 208 S.E.2d 646 (1974); State v. Norwood, 289 N.C. 424, 222 S.E.2d 253 (1976); State v. Palmer, 293 N.C. 633, 239 S.E.2d 406 (1977).

The requirements of this section are met where the indictment sets forth in a plain, intelligible and explicit manner all elements of the crime charged. State v. Page, 32 N.C. App. 478, 232 S.E.2d 460, cert. denied, 292 N.C. 643, 235 S.E.2d 64 (1977).

This section provides against quashal for informality if the charge be plain, intelligible, and explicit and sufficient matter appear in the bill to enable the court to proceed to judgment. State v. Russell, 282 N.C. 240, 192 S.E.2d 294 (1972).

All that is required in a warrant or bill of indictment, since the adoption of this section, is that it be sufficient in form to express the charge against the defendant in a plain, intelligible, and explicit manner, and to contain sufficient matter to enable the court to proceed to judgment and thus bar another prosecution for the same offense. State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133 (1954); State v. Anderson, 259 N.C. 499, 130 S.E.2d 857 (1963); State v. Hunt, 265 N.C. 714, 144 S.E.2d 890 (1965); Godlock v. Ross, 259 F. Supp. 659 (E.D.N.C. 1966); State v. Pinyatello, 272 N.C. 312, 158 S.E.2d 596 (1968); State v. Clontz, 4 N.C. App. 667, 167 S.E.2d 520 (1969); State v. Hawkins, 19 N.C. App. 674, 199 S.E.2d 746 (1973).

A warrant or indictment following substantially the language of the statute is sufficient if and when it thereby charges the essentials of the offense in a plain, intelligible, and explicit manner. If the statutory words fail to do this they must be supplemented by other allegations which so plainly, intelligibly and explicitly set forth every essential element of the offense as to leave no doubt in the mind of the accused and the court as to the offense intended to be charged. State v. McBane, 276 N.C. 60, 170 S.E.2d 913 (1969); State v. Kelly, 13 N.C. App. 588, 186 S.E.2d 631, rev'd on other grounds, 281 N.C. 618, 189 S.E.2d 163 (1972).

Plain, Intelligible, and Explicit Indictment Is Constitutional. - A bill of indictment that charges "in a plain, intelligible and explicit manner," under this section, the criminal offense the accused is "put to answer," affords the protection guaranteed by N.C. Const., Art. I, § 22, 23. State v. Helms, 247 N.C. 740, 102 S.E.2d 241 (1958).

Requirements for a valid indictment are (1) such certainty in the statement of the accusation as will identify the offense with which the accused is sought to be charged; (2) to protect the accused from being twice put in jeopardy for the same offense; (3) to enable the accused to prepare for trial; and (4) to enable the court, on conviction or plea of nolo contendere or guilty to pronounce sentence according to the rights of the case. State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897 (1970), cert. denied, 403 U.S. 940, 91 S. Ct. 2258, 29 L. Ed. 2d 719 (1971); State v. Hinson, 17 N.C. App. 25, 193 S.E.2d 415 (1972), cert. denied, 282 N.C. 583, 194 S.E.2d 151, 412 U.S. 931, 93 S. Ct. 2762, 37 L. Ed. 2d 159 (1973); State v. Beach, 283 N.C. 261, 196 S.E.2d 214 (1973); State v. Reavis, 19 N.C. App. 497, 199 S.E.2d 139 (1973).

Indictment Sufficient. - Since no conclusion could be reached by reading the indictment other than that defendant was in custody at the time he allegedly committed malicious conduct by a prisoner, the trial court had jurisdiction over his case, as the State, pursuant to G.S. 15-153, adequately alleged the offense such that defendant was notified of the offense against which he was called to defend. State v. Artis, 174 N.C. App. 668, 622 S.E.2d 204 (2005), cert. denied, 360 N.C. 365, 630 S.E.2d 188 (2006).

Indictment Held Insufficient. - Trial court lacked jurisdiction where the warrant charging defendant with misdemeanor disorderly conduct in a public building alleged that he caused disruption by causing a disturbance, but did not allege specific acts, and nothing suggested that defendant made or used any utterance, gesture, display, or abusive language that was intended and plainly likely to provoke violent retaliation. State v. Combs, 261 N.C. App. 774, 818 S.E.2d 642 (2018), review denied, 824 S.E.2d 408, 2019 N.C. LEXIS 240 (2019).

Aggravators Not Required to Be Alleged in Short-Form Indictment - State-court murder indictments are not required to allege the aggravating circumstances to be presented against capital defendants. State v. Hunt, 357 N.C. 257, 582 S.E.2d 593, cert. denied, 539 U.S. 985, 124 S. Ct. 44, 156 L. Ed. 2d 702 (2003).

Order of Arrest and Affidavit Constitute Warrant. - The order of arrest and the attached affidavit on which it is based are to be read and considered as a single document and together constitute a warrant. State v. Powell, 10 N.C. App. 443, 179 S.E.2d 153 (1971).

Requirements for Valid Warrant. - A warrant meets minimum standards for validity if it (1) informed the defendant of the charge against him, (2) enabled him to prepare his defense, and (3) enabled the court to proceed to judgment and thereby barred another prosecution for the same offense. State v. Letterlough, 6 N.C. App. 36, 169 S.E.2d 269 (1969).

A valid warrant must charge the offense with sufficient certainty to apprise the defendant of the specific accusation against him so as to enable him to prepare his defense and to protect him from a subsequent prosecution for the same offense, and to enable the court to proceed to judgment. State v. Powell, 10 N.C. App. 443, 179 S.E.2d 153 (1971).

A valid warrant of arrest must be based on an examination of the complainant under oath; it must identify the person charged; it must contain directly or by proper reference at least a defective statement of the crime charged; and it must be directed to a lawful officer or to a class of officers commanding the arrest of the accused. State v. Powell, 10 N.C. App. 443, 179 S.E.2d 153 (1971).

A charge must be sufficiently definite to enable the defendant to prepare his defense, to enable the court to proceed to judgment and to bar a subsequent prosecution for the same offense. This is the test of the sufficiency of a warrant as to the definiteness of its allegations. State v. Tenore, 280 N.C. 238, 185 S.E.2d 644 (1972).

A warrant sufficient to inform a person of the offense with which he is charged and adequate to protect him against further prosecution for that offense is sufficient. State v. Daniel, 255 N.C. 717, 122 S.E.2d 704 (1961).

A warrant and the affidavit upon which it is based will be construed together and will be tested by rules less strict than those applicable to indictments, but, nevertheless, the warrant and the affidavit together must charge facts sufficient to constitute an offense. State v. Williams, 1 N.C. App. 312, 161 S.E.2d 198 (1968).

Effect of Defects in Warrant. - Defects in the warrant affect its validity as a basis for a criminal prosecution on the charge set forth in the affidavit as well as its validity as a basis for a legal arrest. State v. Powell, 10 N.C. App. 443, 179 S.E.2d 153 (1971).

Essential Elements Must Be Set Forth. - In order to constitute a valid charge under a statute, the essential elements of the offense must be set forth in the warrant. State v. Williams, 1 N.C. App. 312, 161 S.E.2d 198 (1968).

A charge in a bill of indictment must be complete in itself, and contain all of the material allegations which constitute the offense charged. State v. Guffey, 265 N.C. 331, 144 S.E.2d 14 (1965).

It is an essential of jurisdiction that a criminal offense shall be sufficiently charged in the indictment. State v. Guffey, 265 N.C. 331, 144 S.E.2d 14 (1965).

Section does not dispense with requirement that essential elements of offense must be charged. State v. Gibbs, 234 N.C. 259, 66 S.E.2d 883 (1951); State v. Nugent, 243 N.C. 100, 89 S.E.2d 781 (1955); State v. Sossamon, 259 N.C. 374, 130 S.E.2d 638 (1963); State v. Guffey, 265 N.C. 331, 144 S.E.2d 14 (1965); State v. McBane, 276 N.C. 60, 170 S.E.2d 913 (1969); State v. Beach, 283 N.C. 261, 196 S.E.2d 214 (1973); State v. Cannady, 18 N.C. App. 213, 196 S.E.2d 617 (1973); State v. King, 285 N.C. 305, 204 S.E.2d 667 (1974).

Section Does Not Supply Essential Averments or Remedy Omission. - By the many adjudications construing this section it has been definitely settled that the section neither supplies nor remedies the omission of any distinct averment of any fact or circumstance which is an essential constituent of the offense charged. State v. Cole, 202 N.C. 592, 163 S.E. 594 (1932); State v. Tarlton, 208 N.C. 734, 182 S.E. 481 (1935).

Trend Is Not to Consider Objections Founded on Mere Matter of Form. - The trend of judicial decision and the tendency of legislation is towards the practical view that objections founded upon mere matter of form should not be considered by the courts unless there is reason to believe that a defendant has been misled by the form of the charge, or was not apprised by its terms of the nature of the offense which he was held to answer. State v. Russell, 282 N.C. 240, 192 S.E.2d 294 (1972).

Nonessential and Minor Defects Do Not Affect Judgment. - This section provides against quashal for mere informality or refinement, and judgments are no longer stayed or reversed for nonessential or minor defects. State v. Davenport, 227 N.C. 475, 42 S.E.2d 686 (1947).

Approved Forms Should Be Followed. - This section was enacted to prevent miscarriage of justice, but not to encourage prosecuting officers to try experiments with new forms, or to excuse them from the duty of ascertaining and following those which have been approved by long use or by statute. The object of the statute in disregarding refinements and informalities is to secure trials upon the merits, and solicitors (now district attorneys) will best serve that end by observing approved forms so as not to raise unnecessary questions as to what are refinements and informalities and what are indispensable allegations. State v. Barnes, 122 N.C. 1031, 29 S.E. 381 (1898); State v. Marsh, 132 N.C. 1000, 43 S.E. 828 (1903); State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133 (1954); State v. Russell, 282 N.C. 240, 192 S.E.2d 294 (1972).

Prosecuting officers should ordinarily follow approved forms in drafting bills of indictment so as to avoid raising questions unnecessarily as to what are refinements and what are essential allegations. State v. Taylor, 280 N.C. 273, 185 S.E.2d 677 (1972).

Incorporation of Essential Information by Reference. - Reference in the second count of an indictment for forgery and for uttering a bad check to the first count, wherein the check was fully described, was sufficient to incorporate by reference essential information necessary to sustain the second count. State v. Russell, 282 N.C. 240, 192 S.E.2d 294 (1972).

Identity of Accused. - For an indictment to be valid, the name of the accused must be alleged in a manner sufficient to identify him with certainty. State v. Bagnard, 24 N.C. App. 566, 211 S.E.2d 471 (1975).

Indictments and warrants need only allege the ultimate facts constituting each element of the criminal offense. Evidentiary matters need not be alleged. State v. Palmer, 293 N.C. 633, 239 S.E.2d 406 (1977).

Evidentiary matters are not required to be alleged in a bill of indictment. State v. Rankin, 55 N.C. App. 478, 286 S.E.2d 119, cert. denied and appeal dismissed, 305 N.C. 590, 292 S.E.2d 11 (1982).

Use of abbreviations in warrants and indictments is not to be encouraged. State v. Letterlough, 6 N.C. App. 36, 169 S.E.2d 269 (1969).

Means by Which Accused Aided and Abetted. - An indictment need not set forth the specific facts or means by which an accused aided and abetted in the commission of a crime. State v. Beach, 283 N.C. 261, 196 S.E.2d 214 (1973).

Use of uniform traffic ticket as a warrant should not be encouraged. This form lacks that degree of clarity desirable in a warrant which should "express the charge against the defendant in a plain, intelligible, and explicit manner." State v. Letterlough, 6 N.C. App. 36, 169 S.E.2d 269 (1969).

Endorsement by Grand Jury Unnecessary. - No endorsement on a bill of indictment by the grand jury is necessary. The record that it was presented by the grand jury is sufficient in the absence of evidence to impeach it. State v. Sultan, 142 N.C. 569, 54 S.E. 841 (1906), overruling State v. McBroom, 127 N.C. 528, 37 S.E. 193 (1900); State v. Long, 143 N.C. 670, 57 S.E. 349 (1907).

B. USE OF LANGUAGE OF STATUTE.

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Indictment in Language of Statute. - An indictment following substantially the language of the statute is sufficient only when it thereby charges the essential elements of the offense in a plain, intelligible and explicit manner. If the statutory words fail to do this, they must be supplemented in the indictment by other allegations which explicitly and accurately set forth every essential element of the offense with such exactitude as to leave no doubt in the minds of the accused and the court as to the specific offense intended to be charged. State v. Eason, 242 N.C. 59, 86 S.E.2d 774 (1955); State v. Jordan, 247 N.C. 253, 100 S.E.2d 497 (1957); State v. Sossamon, 259 N.C. 374, 130 S.E.2d 638 (1963); State v. Lackey, 271 N.C. 171, 155 S.E.2d 465 (1967); State v. Cook, 272 N.C. 728, 158 S.E.2d 820 (1968).

The general rule in this State and elsewhere is that an indictment for a statutory offense is sufficient, if the offense is charged in the words of the statute, either literally or substantially, or in equivalent words. This rule does not apply where the words of the statute do not, without uncertainty or ambiguity, set forth all the essential elements necessary to constitute the offense sought to be charged in the indictment. In such a situation the statutory words must be supplemented in the indictment by other allegations which explicitly and accurately set forth every essential element of the offense with such exactitude as to leave no doubt in the minds of the accused and the court as to the specific offense intended to be charged. State v. Beach, 283 N.C. 261, 196 S.E.2d 214 (1973).

In a criminal prosecution for a statutory offense, including the violation of a municipal ordinance, the warrant or indictment is sufficient if and when it follows the language of the statute or ordinance and thereby charges the essentials of the offense "in a plain, intelligible, and explicit manner." If the words of the statute fail to do this they must be supplemented by other allegations which so plainly, intelligibly and explicitly set forth every essential element of the offense as to leave no doubt in the mind of the accused and the court as to the offense intended to be charged. State v. Dorsett, 272 N.C. 227, 158 S.E.2d 15 (1967).

Where an indictment follows the words of a statute it is sufficient under this section. State v. Harrison, 145 N.C. 408, 59 S.E. 867 (1907); State v. Lepeer, 146 N.C. 655, 61 S.E. 585 (1908), overruled on other grounds, In re Alamance County Court Facilities, 329 N.C. 84, 405 S.E.2d 125 (1991). See also State v. Davis, 203 N.C. 47, 164 S.E. 732, cert. denied, 203 N.C. 327, 166 S.E. 297, 287 U.S. 645, 53 S. Ct. 91, 77 L. Ed. 558 (1932).

Ordinarily, an indictment for a statutory offense is sufficient if the offense is charged in the words of the statute. State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897 (1970), cert. denied, 403 U.S. 940, 91 S. Ct. 2258, 29 L. Ed. 2d 719 (1971); State v. Norwood, 289 N.C. 424, 222 S.E.2d 253 (1976).

An indictment couched in the language of the statute is generally sufficient to charge the statutory offense. State v. Palmer, 293 N.C. 633, 239 S.E.2d 406 (1977).

Defendant's indictment was not facially invalid because it tracked the relevant language of the felony speeding to elude arrest statute, G.S. 20-141.5, and listed the essential elements of the offense; the body of the indictment provided defendant with enough information to prepare a defense for the offense of felony speeding to elude arrest with reckless driving as an aggravating factor. State v. Leonard, 213 N.C. App. 526, 711 S.E.2d 867 (2011).

Defendant's indictment included the critical language found in the statute, alleging that he failed to meet his obligation to report, and this language was consistent with that found in the charging statute and provided defendant sufficient notice to prepare a defense; additional detail about the reporting requirement was neither needed nor required, and thus the indictment was valid and conferred jurisdiction upon the trial court. State v. Williams, 368 N.C. 620, 781 S.E.2d 268 (2016).

Indictment for offense created by statute must be framed upon the statute, and this fact must distinctly appear upon the face of the indictment itself; and in order that it shall so appear, the bill must either charge the offense in the language of the act or specifically set forth the facts constituting the same. State v. Gibbs, 234 N.C. 259, 66 S.E.2d 883 (1951).

But it is not necessary to charge in the precise words of a statute. Under this section, every criminal proceeding by warrant is sufficient for all intents and purposes if it expresses the charge in a plain, intelligible and explicit manner. State v. Bigelow, 19 N.C. App. 570, 199 S.E.2d 494 (1973).

Indictment need not refer to a particular statute. Godlock v. Ross, 259 F. Supp. 659 (E.D.N.C. 1966).

Reference to a specific statute upon which the charge in a warrant is laid is not necessary to its validity. State v. Anderson, 259 N.C. 499, 130 S.E.2d 857 (1963); State v. Hunt, 265 N.C. 714, 144 S.E.2d 890 (1965).

Where Warrant Avers Facts Constituting Every Element of Offense. - If a warrant avers facts which constitute every element of an offense, it is not necessary that it be couched in the language of the statute. State v. Anderson, 259 N.C. 499, 130 S.E.2d 857 (1963); State v. Hicks, 86 N.C. App. 36, 356 S.E.2d 595 (1987).

Charge in General Terms of Breach of Statute Not Sufficient. - Merely charging in general terms a breach of the statute and referring to it in the indictment is not sufficient. State v. Sossamon, 259 N.C. 374, 130 S.E.2d 638 (1963); State v. Cook, 272 N.C. 728, 158 S.E.2d 820 (1968); State v. McBane, 276 N.C. 60, 170 S.E.2d 913 (1969).

Reference to Statute That Is Not Pertinent. - Where a warrant charges a criminal offense but refers to a statute that is not pertinent, such reference does not invalidate the warrant. State v. Anderson, 259 N.C. 499, 130 S.E.2d 857 (1963).

C. REMEDIES FOR INSUFFICIENCY.

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Substance of Indictment May Not Be Amended. - The substance of a bill of indictment used in a trial may not be amended by the court or the solicitor (now district attorney) after it has been returned by the grand jury as a true bill. State v. Haigler, 14 N.C. App. 501, 188 S.E.2d 586, cert. denied, 281 N.C. 625, 190 S.E.2d 468 (1972).

Fatal Defect Cannot Be Cured by Amendment. - Where a warrant or indictment is fatally defective in failing to charge an essential element of the offense, the defect cannot be cured by amendment. State v. Williams, 1 N.C. App. 312, 161 S.E.2d 198 (1968).

Motion to Quash Tests Sufficiency of Warrant. - A motion to quash is a proper method of testing the sufficiency of the warrant to charge a criminal offense; it is not a means of testing the guilt or innocence of the defendant with respect to a crime properly charged. State v. Tenore, 280 N.C. 238, 185 S.E.2d 644 (1972).

It Lies Only for Defect Appearing on Face. - While a motion to quash is an appropriate method of testing the sufficiency of the bill of indictment to charge a criminal offense, it lies only for a defect appearing on the face of the warrant or indictment. State v. Springer, 283 N.C. 627, 197 S.E.2d 530 (1973).

And Defect Cannot Be Established by Evidence Outside the Record. - The court, in ruling on a motion to quash an indictment is not permitted to consider extraneous evidence; therefore, when the defect must be established by evidence outside the record, the motion must be denied. State v. Springer, 283 N.C. 627, 197 S.E.2d 530 (1973).

Quashing indictments is not favored. It releases recognizances and sets the defendant at large where, it may be, he ought to be held to answer upon a better indictment, though allowable, where it will put an end to the prosecution altogether, and advisable where it appears that the court has not jurisdiction, or where the matter charged is not indictable in any form. It is, therefore, a general rule that no indictment which charges the higher offenses, as treason or felony or those crimes which immediately affect the public at large, as perjury, forgery, etc., will be thus summarily dealt with. The example is a bad one, and the effect upon the public injurious, to allow the defendant to escape upon matters of form. State v. Colbert, 75 N.C. 368 (1876); State v. Russell, 282 N.C. 240, 192 S.E.2d 294 (1972). See State v. Flowers, 109 N.C. 841, 13 S.E. 718 (1891).

Quashing of indictments and warrants is not favored. State v. Abernathy, 265 N.C. 724, 145 S.E.2d 2 (1965).

Quashing of indictments is not favored where they do not affect the merits of the case. State v. Swift, 290 N.C. 383, 226 S.E.2d 652 (1976).

Motion to Quash Denied Where Essential Elements Present. - Where the bills of indictment contained allegations sufficient to set forth fully and clearly all essential elements of the offense charged, denial of defendant's motion to quash on the ground that the bills were "too vague and insufficient, too broad and general" was proper. State v. Coleman, 24 N.C. App. 530, 211 S.E.2d 542 (1975).

A warrant which, stripped of nonessential words, charges defendant with a crime, is sufficient to survive a motion to quash. State v. Camel, 230 N.C. 426, 53 S.E.2d 313 (1949).

Indictment Not Quashed for Mere Informality or Minor Defects. - In light of the provisions of this section, it is the practice of the Supreme Court not to sustain motions to quash bills of indictment for mere informality or minor defects which do not affect the merits of the case. State v. Brady, 237 N.C. 675, 75 S.E.2d 791 (1953).

Motion to quash for redundancy in the affidavit portion of a warrant upon which the order of arrest portion is based is addressed to the sound discretion of the trial judge. State v. Powell, 10 N.C. App. 443, 179 S.E.2d 153 (1971).

Motion to Quash Addressed to Court's Discretion. - A motion to quash for redundancy or inartificiality is addressed to the sound discretion of the trial court. State v. Davis, 203 N.C. 13, 164 S.E. 737, cert. denied, 287 U.S. 649, 53 S. Ct. 95, 77 L. Ed. 561 (1932); State v. Davenport, 227 N.C. 475, 42 S.E.2d 686 (1947).

Grounds for Motion in Arrest of Judgment. - A motion in arrest of judgment after conviction, on the ground that the bill of indictment is defective, will not be granted unless it appears that the bill is so defective that judgment cannot be pronounced upon it. State v. Francis, 157 N.C. 612, 72 S.E. 1041 (1911); State v. Ratliff, 170 N.C. 707, 86 S.E. 997 (1915); State v. Sauls, 190 N.C. 810, 130 S.E. 848 (1925).

Not Granted Where Court Enabled to Proceed to Judgment. - Where sufficient matter appears on the face of a bill of indictment to enable the court to proceed to judgment, an arrest of judgment is forbidden by this section. State v. Darden, 117 N.C. 697, 23 S.E. 106 (1895).

Error or Defect Must Appear on Face of Record. - A judgment may be arrested only for some error or defect appearing on the face of the record. State v. Eason, 242 N.C. 59, 86 S.E.2d 774 (1955).

Motion for Bill of Particulars as Prerequisite to Arrest of Judgment. - Where the defendant thinks an indictment fails to impart information sufficiently specific as to the nature of the charge he may, before trial, move the court to order that a bill of particulars be filed, and the court will not arrest the judgment after verdict where he attempts to reserve his fire until he takes first the chance of acquittal. State v. Tessnear, 254 N.C. 211, 118 S.E.2d 393 (1961).

III. DEFECTS.

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A. IN GENERAL.

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Superfluous Words Disregarded. - The use of superfluous words in a bill of indictment will be disregarded. State v. Guest, 100 N.C. 410, 6 S.E. 253 (1888); State v. Arnold, 107 N.C. 861, 11 S.E.2d 990 (1890); State v. Darden, 117 N.C. 697, 23 S.E. 106 (1895); State v. Piner, 141 N.C. 760, 53 S.E. 305 (1906); State v. Wynne, 151 N.C. 644, 65 S.E. 459 (1909); State v. Taylor, 280 N.C. 273, 185 S.E.2d 677 (1972).

Nonessential Allegations May Be Treated as Surplusage. - Allegations beyond the essential elements of the crime sought to be charged are irrelevant and may be treated as surplusage. State v. Taylor, 280 N.C. 273, 185 S.E.2d 677 (1972).

B. OMISSIONS AND ERRORS.

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Inadvertent Omissions. - The inadvertent omission of words not affecting the substance of the charge or prejudicing the defendant is not fatal. State v. Burke, 108 N.C. 750, 12 S.E. 1000 (1891), and cases there cited; State v. Ratliff, 170 N.C. 707, 86 S.E. 997 (1915).

Omission in Complaint of Name of Person Charged. - The omission of the name of the party in the complaint, against whom a criminal offense is charged, will not of itself invalidate the indictment, when the warrant of arrest thereto attached and referred to contains his name and clearly indicates him as the person charged, the complaint and warrant being read together, and in this way they are sufficient in form to proceed to judgment upon conviction. State v. Poythress, 174 N.C. 809, 93 S.E. 919 (1917).

Omission of Defendant's Name from Affidavit. - Where defendant's name appears in the warrant which refers to the affidavit, forming a part thereof, the omission of defendant's name from the affidavit is not a fatal defect. However, an affidavit form which fails to name the person charged is disapproved. State v. St. Clair, 246 N.C. 183, 97 S.E.2d 840, modified, 247 N.C. 228, 100 S.E.2d 493 (1957).

Omission of Caption. - The omission of the caption of a bill of indictment does not constitute ground for arrest of judgment. State v. Davis, 225 N.C. 117, 33 S.E.2d 623 (1945).

Omission in Describing a Lease. - In describing a lease the omission of the word "year" after the word "one," is one of the informalities cured by this section. State v. Walker, 87 N.C. 541 (1882).

Failure to Repeat Names in Charging Scienter. - Where defendants contended that a court in the indictment charging receiving stolen goods was fatally defective in that the names of defendants were not repeated in charging scienter, the defect was merely an informality or refinement not sufficient to support a quashal of the indictment, the charge being plain, explicit and sufficient to enable the court to proceed to judgment. State v. Whitley, 208 N.C. 661, 182 S.E. 338 (1935).

Foreman's Failure to Sign Bill. - The report of the grand jury, signed by the foreman, in which was listed the bill against defendant as having been returned a true bill charging a noncapital felony, rendered the foreman's failure to sign the bill itself amendable, and defendant's motion to quash the indictment was properly denied. State v. Spinks, 24 N.C. App. 548, 211 S.E.2d 476 (1975).

The omission of a signature on one of the bills of indictment did not affect the substance of the bill where the other four bills were properly signed on the same day; therefore, the trial court did not err in amending the bill of indictment by adding the signature of the grand jury foreman. State v. Colvin, 92 N.C. App. 152, 374 S.E.2d 126 (1988), cert. denied, 324 N.C. 249, 377 S.E.2d 758 (1989).

Name of Court Incorrect. - Describing the court in which the false oath is alleged to have been taken as "before Joseph Z. Pratt, a justice of the peace, in and for said county," instead of as "a court of a justice of the peace for township A, of Chowan County," is not a substantial variance from the true description and is cured by this section. State v. Davis, 69 N.C. 495 (1873).

Error in Name of Accused. - Where, in the order of arrest portion of the purported warrant, the person ordered arrested was "Dempsey Roy Smith" and not the defendant, "Dempsey Roy Powell," the instrument did not meet the requirement that it be directed to a lawful officer commanding the arrest of the accused. State v. Powell, 10 N.C. App. 443, 179 S.E.2d 153 (1971).

Bill of indictment identifying the accused in the body thereof as "John Doe AKA 'Varne' " was insufficient to charge a defendant named "Vaughn Bagnard" with any offense. State v. Bagnard, 24 N.C. App. 566, 211 S.E.2d 471 (1975).

Wrong County in Caption. - A misrecital of the proper county in the caption of an indictment furnishes no ground for arrest of judgment, and it seems that such an indictment would have been sufficient even before this section was adopted. State v. Sprinkle, 65 N.C. 463 (1871); State v. Davis, 225 N.C. 117, 33 S.E.2d 623 (1945).

Incorrect Spelling. - Charging that one committed a crime in the "count aforesaid" instead of "county aforesaid" is an informality which is cured by this section. State v. Smith, 63 N.C. 234 (1869); State v. Evans, 69 N.C. 40 (1873).

Use of Singular Rather Than Plural in Joint Indictment. - In a joint indictment of two defendants for murder which charged that defendants "of his malice aforethought" committed the act, the use of the word "his" instead of "their" is insufficient ground for arresting the judgment, informalities and refinements being disregarded if the indictment is sufficient to inform defendants of the charge against them and to enable them to prepare their defense, and to protect them from another prosecution. State v. Linney, 212 N.C. 739, 194 S.E. 470 (1938).

C. ALLEGATIONS DIFFERING FROM PROOF.

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Purpose of the rule as to variance in an indictment is to avoid surprise and to protect the accused from another prosecution for the same offense. State v. Martin, 29 N.C. App. 17, 222 S.E.2d 718, cert. denied, 290 N.C. 96, 225 S.E.2d 325 (1976).

Variance Must Be Material to Be Fatal. - Under this section, a variance, to be fatal, must be substantial and material. State v. Ridge, 125 N.C. 655, 34 S.E. 439 (1899).

Names of Parties. - Where the indictment charged an assault, etc., upon "Lila" Hatcher, and the evidence tended to show that it was made upon "Liza" Hatcher, the variance is immaterial. State v. Drakeford, 162 N.C. 667, 78 S.E. 308 (1913).

Where indictment alleged that Thomas R. Robertson was defendant, and the proof was that "Thomas Robertson" was the defendant in said action and there was evidence of the identity of Thomas Robertson and Thomas R. Robertson, this is an informality cured by the section. State v. Hester, 122 N.C. 1047, 29 S.E. 380 (1898).

Where, in an indictment for murder, the assault is charged to have been made on one "N.S. Jarrett," and in subsequent parts of the indictment he is described as "Nimrod S. Jarrett," there is no variance. State v. Henderson, 68 N.C. 348 (1873).

Where the bill of indictment alleges a sale of narcotics to one person and the proof tends to show only a sale to a different person, the variance is fatal. State v. Ingram, 20 N.C. App. 464, 201 S.E.2d 532 (1974).

Name of Article Stolen. - In an indictment for larceny, when the article stolen is described as a "calf" skin and is proven on the trial to be a "kip" skin, there is no variance between the allegation and the proof. State v. Campbell, 76 N.C. 261 (1877).

Object Used in Commission of Assault. - Evidence that defendant committed the assault with a "brick or a rock or what" was not fatal variance with a warrant charging that the assault was committed with a brick, the evidence being sufficient to justify the jury in inferring that the assault was committed with a brick as charged, and there being no element of surprise in the evidence, especially where defendant's defense was that of an alibi. State v. Hobbs, 216 N.C. 14, 3 S.E.2d 431 (1939).

Number of Victims. - In a prosecution for armed robbery, where the indictment referred only to the robbery of a single victim but the trial judge in his charge to the jury referred to another victim, there was no prejudicial variance since there was only a single criminal transaction, and defendant therefore was in no danger of a subsequent prosecution for the robbery of the other victim. State v. Martin, 29 N.C. App. 17, 222 S.E.2d 718, cert. denied, 290 N.C. 96, 225 S.E.2d 325 (1976).

D. PLEADING IN THE ALTERNATIVE.

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When Use of Disjunctive Constitutes Fatal Defect. - Whether the improper use of the disjunctive constitutes a fatal defect in an indictment, or simply poor pleading, depends upon whether such use renders the indictment uncertain. State v. Kelly, 13 N.C. App. 588, 186 S.E.2d 631, rev'd on other grounds, 281 N.C. 618, 189 S.E.2d 163 (1972).

Waiver of Duplicity in Indictment. - By going to trial without making a motion to quash, defendant waived any duplicity that might have existed in the bill of indictment. State v. Kelly, 13 N.C. App. 588, 186 S.E.2d 631, rev'd on other grounds, 281 N.C. 618, 189 S.E.2d 163 (1972).

Indictment should not charge a party disjunctively or alternatively, in such a manner as to leave it uncertain what is relied on as the accusation against him. State v. Kelly, 13 N.C. App. 588, 186 S.E.2d 631, rev'd on other grounds, 281 N.C. 618, 189 S.E.2d 163 (1972).

Alternative Allegation of Offenses. - Two or more offenses cannot, in the absence of statutory permission, be alleged alternatively in the same count. State v. Kelly, 13 N.C. App. 588, 186 S.E.2d 631, rev'd on other grounds, 281 N.C. 618, 189 S.E.2d 163 (1972).

Alternative Pleading as to How Offense Committed. - Where a statute specifies several means or ways in which an offense may be committed in the alternative, it is bad pleading to allege such means or ways in the alternative; the proper way is to connect the various allegations in the accusing pleading with the conjunctive term "and" not with the word "or." State v. Kelly, 13 N.C. App. 588, 186 S.E.2d 631, rev'd on other grounds, 281 N.C. 618, 189 S.E.2d 163 (1972).

In an indictment it is always the better practice to use the conjunctive "and" rather than the disjunctive "or" where a statute sets forth disjunctively several means or ways by which an offense may be committed. State v. Kelly, 13 N.C. App. 588, 186 S.E.2d 631, rev'd on other grounds, 281 N.C. 618, 189 S.E.2d 163 (1972).

Offense Not Charged in Alternative. - An indictment charging that defendant did unlawfully and willfully build or install a septic tank, without procuring a permit and having the tank inspected as required by law, should not be quashed on the ground that the offense charged is alleged in the alternative, since the words "build" and "install" in the sense in which they were used in the ordinance, the violation of which is alleged in the indictment, are synonymous. State v. Jones, 242 N.C. 563, 89 S.E.2d 129 (1955).

IV. PARTICULAR OFFENSES.

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Description of Property in Indictment for Larceny. - The description in an indictment must be in the common and ordinary acceptation of property and with certainty sufficient to enable the jury to say that the article proved to be stolen is the same, and to enable the court to see that it is the subject of larceny and also to protect the defendant in any subsequent prosecution for the same offense. State v. Campbell, 76 N.C. 261 (1877); State v. Martin, 82 N.C. 672 (1880); State v. Caylor, 178 N.C. 807, 101 S.E. 627 (1919).

The description of the property alleged to have been stolen must be of sufficient certainty to enable the jury to say that the article proved to be stolen is the same. State v. Haigler, 14 N.C. App. 501, 188 S.E.2d 586, cert. denied, 281 N.C. 625, 190 S.E.2d 468 (1972).

The description in a warrant or bill of indictment of the goods alleged to have been stolen is sufficient if from it defendant can have a fair and reasonable opportunity to prepare his defense, can avail himself of his conviction or acquittal as a bar to subsequent prosecution for the same offense, and the court is enabled, on conviction, to pronounce sentence according to law. State v. Fuller, 13 N.C. App. 193, 185 S.E.2d 312 (1971).

The description of property alleged to have been stolen must be plain and intelligible, and must correspond to the different forms of existence in which the same article is found. In its raw or unmanufactured state it may be described by its ordinary name, but if it be worked up into some other forms, etc., when stolen, it must be described by the name by which it is generally known. State v. Haigler, 14 N.C. App. 501, 188 S.E.2d 586, cert. denied, 281 N.C. 625, 190 S.E.2d 468 (1972).

Object of describing property stolen by its usual name, ownership, etc., is to enable the defendant to make his defense, and to protect himself against a second conviction. State v. Haigler, 14 N.C. App. 501, 188 S.E.2d 586, cert. denied, 281 N.C. 625, 190 S.E.2d 468 (1972).

Object of describing property stolen by its quality and quantity is that it may appear to the court to be of value. State v. Haigler, 14 N.C. App. 501, 188 S.E.2d 586, cert. denied, 281 N.C. 625, 190 S.E.2d 468 (1972).

Indictment for burglary need not describe the property stolen by the burglar. State v. Coffey, 289 N.C. 431, 222 S.E.2d 217 (1976).

Indictment for burglary must specify the particular felony which the defendant is alleged to have intended to commit at the time of the breaking and entering, and it is not sufficient to charge generally an intent to commit an unspecified felony. State v. Norwood, 289 N.C. 424, 222 S.E.2d 253 (1976).

But Felony Intended Need Not Be Set Out as Specifically. - In an indictment for burglary, the felony intended need not be set out as fully and specifically as would be required in an indictment for the actual commission of that felony. State v. Norwood, 289 N.C. 424, 222 S.E.2d 253 (1976).

In specifying the felony intended in an indictment for burglary it is enough to state the offense generally and to designate it by name. State v. Norwood, 289 N.C. 424, 222 S.E.2d 253 (1976).

Identifying Premises Entered in Burglary Indictment. - An indictment for burglary is fatally defective if it fails to identify the premises broken into 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. Coffey, 289 N.C. 431, 222 S.E.2d 217 (1976).

Ownership of Property in Indictment for Arson. - In a prosecution under G.S. 14-65, an indictment stating that the defendant procured another to burn a certain house owned by the defendant and another as tenants in common is sufficient, and the fact that the same parties owned other houses in like capacity is not ground for demurrer or quashal. State v. McKeithan, 203 N.C. 494, 166 S.E. 336 (1932).

Prerequisites of affidavit portion of warrant charging the offense of resisting arrest are set forth in State v. Wiggs, 269 N.C. 507, 153 S.E.2d 84 (1967) and State v. Fenner, 263 N.C. 694, 140 S.E.2d 349 (1965); State v. Powell, 10 N.C. App. 443, 179 S.E.2d 153 (1971).

One of the prerequisites of the affidavit portion of a warrant properly charging the offense of resisting arrest is that the affidavit upon which the order of arrest is based shall identify by name the person alleged to have been resisted, delayed or obstructed, and describe his official character with sufficient certainty to show that he was a public officer within the purview of the statute. State v. Powell, 10 N.C. App. 443, 179 S.E.2d 153 (1971).

Indictment for Resisting Arrest. - A motion in arrest of judgment should have been granted where indictment for resisting a public officer failed to identify the public officer and did not point out even in a general way the manner in which the defendant resisted. State v. Eason, 242 N.C. 59, 86 S.E.2d 774 (1955).

Use of Deadly Weapon. - It is sufficient for indictments or warrants seeking to charge a crime in which one of the elements is the use of a deadly weapon (1) to name the weapon and (2) either to state expressly that the weapon used was a "deadly weapon" or to allege such facts as would necessarily demonstrate the deadly character of the weapon. State v. Palmer, 293 N.C. 633, 239 S.E.2d 406 (1977).

Driving While License Suspended or Revoked. - Where a warrant does not charge that defendant operated a motor vehicle on a public highway, such warrant fails to allege an essential element of the offense as defined in G.S. 20-28(a). State v. Cook, 272 N.C. 728, 158 S.E.2d 820 (1968).

Public Drunkenness. - A warrant charging that defendant did "unlawfully and willfully appear off of his premises in a drunken condition" is insufficient to charge the offense of public drunkenness proscribed by former G.S. 14-335 (see now G.S. 14-444), since it fails to charge that defendant was in a public place. State v. Williams, 1 N.C. App. 312, 161 S.E.2d 198 (1968).

Receipt of Official Ballots. - A charge of the receipt by defendant of official ballots, knowing that he had no legal right to them, amounts to a charge of interference with the duty of the county board of elections to safely keep the ballots until time for delivery to the registrars (now chief judge), within the provisions of this section, and the bill of indictment should not have been quashed because it failed to charge the manner in which the election officials were interfered with. State v. Abernethy, 220 N.C. 226, 17 S.E.2d 25 (1941).

I. GENERAL CONSIDERATION.

One purpose of an indictment is to give the defendant notice of the charge against him to the end that he may prepare a defense and be in a position to plead double jeopardy if he is again brought to trial for the same offense. Another purpose is to enable the court to know what judgment to pronounce in case of conviction. State v. Sills, 311 N.C. 370, 317 S.E.2d 379 (1984).

Section Cures Formal Defects. - This section is intended to cure only formal defects in the indictment after judgment, and not omissions of averments necessary to enable the court to give judgment intelligently. State v. Wise, 66 N.C. 120 (1872).

Effect on Common Law Technicalities. - The refined technicalities of the procedure at common law, in both civil and criminal cases, have almost entirely, if not quite, been abolished by the statute. State v. Hedgecock, 185 N.C. 714, 117 S.E. 47 (1923).

Modern tendency is against technical objections which do not affect the merits of the case. Hence judgments are not to be stayed or reversed for nonessential or minor defects. State v. Anderson, 208 N.C. 771, 182 S.E. 643 (1935).

Essential Elements Must Still Be Charged. - Nothing in G.S. 15-153 or in this section dispenses with the requirement that the essential elements of the offense must be charged. State v. Sossamon, 259 N.C. 374, 130 S.E.2d 638 (1963); State v. McBane, 276 N.C. 60, 170 S.E.2d 913 (1969); State v. King, 285 N.C. 305, 204 S.E.2d 667 (1974).

Purpose of the rule as to variance in an indictment is to avoid surprise and to protect the accused from another prosecution for the same offense. State v. Martin, 29 N.C. App. 17, 222 S.E.2d 718, cert. denied, 290 N.C. 96, 225 S.E.2d 325 (1976).

Variance Raised by Motion for Judgment of Nonsuit. - A fatal variance between the indictment and the proof is properly raised by motion for judgment of nonsuit. State v. Springer, 283 N.C. 627, 197 S.E.2d 530 (1973).

The provisions of G.S. 15-144.1 do not prevail over this section. State v. Sills, 311 N.C. 370, 317 S.E.2d 379 (1984).

Charge in Warrant Different from That in Indictment. - Where an arrest warrant listed a different charge from that subsequently returned in the indictment did not require that the judge dismiss the latter. State v. Riggs, 100 N.C. App. 149, 394 S.E.2d 670 (1990).

Substance of Indictment May Not Be Amended. - The substance of a bill of indictment used in a trial may not be amended by the court or the solicitor (now district attorney) after it has been returned by the grand jury as a true bill. State v. Haigler, 14 N.C. App. 501, 188 S.E.2d 586, cert. denied, 281 N.C. 625, 190 S.E.2d 468 (1972).

Words "with force and arms" constitute a formal phrase traditionally included in bills of indictment, but have no significance as an element of the specific crime charged in the bill of indictment. State v. Acrey, 262 N.C. 90, 136 S.E.2d 201 (1964); State v. Coleman, 24 N.C. App. 530, 211 S.E.2d 542 (1975).

G.S. 15-144 does not prevail over the language of this section, and the omission of the phrase "with force and arms" does not, therefore, render a defendant's indictment for murder fatally defective. State v. James, 321 N.C. 676, 365 S.E.2d 579 (1988).

Construction with G.S. 15-144.1 as to "with Force and Arms". - This section does not either require the averment "with force and arms" or express a legislative intent that the language in G.S. 15-144.1(a) prevail over the express language in this section, which states in effect that no judgment shall be stayed or reversed because of the omission of the words "with force and arms" from the indictment. State v. Corbett, 307 N.C. 169, 297 S.E.2d 553 (1982).

An indictment in a rape case under G.S. 15-144.1 need not contain the phrase "with force and arms." State v. Cheek, 307 N.C. 552, 299 S.E.2d 633 (1983).

Indictment concluding against the "force" instead of the "form" of the statute is sufficient under this section. State v. Davis, 80 N.C. 385 (1879).

Indictment concluding against the form of the "statue" instead of "statute" is not ground for an arrest of judgment. State v. Smith, 63 N.C. 234 (1869).

Omissions Held Not Fatal. - Omitting the statement, that the "prisoner, not having the fear of God before his eyes, but being moved and seduced by the instigations of the devil," and the further omission of an averment that the "deceased was in the peace of God and the State," are not fatal defects. State v. Howard, 92 N.C. 772 (1885).

Conclusion Simplified. - The formal conclusion, "against the peace and dignity of the State," and "against the form of the statute," etc., are not necessary in an indictment for any offense whatever, but are mere surplusage. State v. Sykes, 104 N.C. 694, 10 S.E. 191 (1889); State v. Kirkman, 104 N.C. 911, 10 S.E. 312 (1889), overruling State v. Joyner, 81 N.C. 534 (1879); State v. Peters, 107 N.C. 876, 12 S.E. 74 (1890); State v. Dudley, 182 N.C. 822, 109 S.E. 63 (1921).

Locality May Be Omitted. - Formerly failure to allege and prove the locality, appropriate to the forum, was fatal, because essential to the jurisdiction, both in civil and criminal actions, but this has been wisely reversed by this section. State v. Long, 143 N.C. 670, 57 S.E. 349 (1907).

Variance in Description of Locality. - Where an indictment alleges the particular place where an act took place, and such allegation is not descriptive of the offense, and is not required to be proved as laid in order to show the court's jurisdiction, a variance which does not mislead accused or expose him to double jeopardy is not material. State v. Currie, 47 N.C. App. 446, 267 S.E.2d 390, cert. denied, 301 N.C. 237, 283 S.E.2d 134 (1980), overruled on other grounds, State v. Randolph, 312 N.C. 198, 321 S.E.2d 871 (1984).

Challenge to Jurisdiction in Plea in Abatement. - Where the jurisdiction of the court is not ousted on the face of the indictment the position that the court does not have jurisdiction is not available on a plea in abatement. State v. Davis, 203 N.C. 13, 164 S.E. 737, cert. denied, 287 U.S. 649, 53 S. Ct. 95, 77 L. Ed. 561 (1932).

Incorrect Venue. - Even if trafficking indictment failed to name Wake County as a county in which the offense occurred, and venue was therefore technically incorrect in Wake County, the Superior Court of Wake County nevertheless had jurisdiction to try the offense, as under G.S. 15A-631 the return of an indictment is a matter of venue, not jurisdiction. State v. Carter, 96 N.C. App. 611, 386 S.E.2d 620 (1989), cert. denied, 326 N.C. 365, 389 S.E.2d 817 (1990).

Later Indictment for Same Offense Where Time Not of the Essence. - While an appeal from conviction in a recorder's court upon a warrant, charging unlawful possession on a certain date of intoxicating liquors for the purpose of sale, was pending in the superior court, that court had jurisdiction to try defendant on a bill of indictment of a later date charging the same offense, where the record contains nothing to show that the offenses are identical. Time is not of the essence and need not be specified in the indictment. State v. Suddreth, 223 N.C. 610, 27 S.E.2d 623 (1943).

Variance as to Identity of Victim of Armed Robbery. - In a prosecution for armed robbery, where the indictment referred only to the robbery of a single victim but the trial judge in his charge to the jury referred to another victim, there was no prejudicial variance since there was only a single criminal transaction, and defendant therefore was in no danger of a subsequent prosecution for the robbery of the other victim. State v. Martin, 29 N.C. App. 17, 222 S.E.2d 718, cert. denied, 290 N.C. 96, 225 S.E.2d 325 (1976).

Amendment of Description of Stolen Property Did Not Invalidate Breaking and Entering Count. - An amendment by the solicitor (now district attorney) of the description of the stolen property in felonious larceny and receiving counts of an indictment, if error, did not invalidate a count charging felonious breaking and entering, and was not prejudicial where the only sentence imposed was for breaking and entering. State v. Haigler, 14 N.C. App. 501, 188 S.E.2d 586 (1972).

Variance as to Whom Narcotics Were Sold. - Where the bill of indictment alleges a sale of narcotics to one person and the proof tends to show only a sale to a different person, the variance is fatal. State v. Ingram, 20 N.C. App. 464, 201 S.E.2d 532 (1974).

Lack of Evidence as to Alleged Serial Number of Stolen Goods. - Where a larceny indictment describes the stolen property as "a 1970 Plymouth, Serial # PM14360F239110, the personal property of George Edison Biggs," and the evidence shows the taking by defendant of a 1970 Plymouth which was owned by George Edison Biggs but there is no evidence as to the serial number, the variance is not fatal. State v. Coleman, 24 N.C. App. 530, 211 S.E.2d 542 (1975).

Variance as to Custody from Which Defendant Escaped. - Where bill of indictment charges that defendant escaped while lawfully confined in the North Carolina State Prison System in the lawful custody of the North Carolina Department of Correction, and the evidence shows he escaped while assigned by an official of the Department of Correction to work under an employee of the State Highway Commission, the variance is not fatal. State v. Coleman, 24 N.C. App. 530, 211 S.E.2d 542 (1975).

Short-form Indictment Held Sufficient. - Short-form indictment expressly alleging murder in the first-degree met the requirements of G.S. 15-155. State v. Maske, 358 N.C. 40, 591 S.E.2d 521 (2004).

Applied in State v. Gore, 207 N.C. 618, 178 S.E. 209 (1935); State v. Puckett, 211 N.C. 66, 189 S.E. 183 (1937); State v. Foster, 282 N.C. 189, 192 S.E.2d 320 (1972); State v. Dollar, 292 N.C. 344, 233 S.E.2d 521 (1977); State v. Tesenair, 35 N.C. App. 531, 241 S.E.2d 877 (1978); State v. Joyce, 97 N.C. App. 464, 389 S.E.2d 136 (1990); State v. Everett, 328 N.C. 72, 399 S.E.2d 305 (1991); State v. Locklear, 172 N.C. App. 249, 616 S.E.2d 334 (2005); State v. Gibert, 229 N.C. App. 476, 747 S.E.2d 253 (2013), review denied, 755 S.E.2d 616, 2014 N.C. LEXIS 211 (2014).

Cited in State v. Dale, 218 N.C. 625, 12 S.E.2d 556 (1940); State v. Wilson, 218 N.C. 769, 12 S.E.2d 654 (1941); State v. Hall, 251 N.C. 211, 110 S.E.2d 868 (1959); State v. Whitley, 264 N.C. 742, 142 S.E.2d 600 (1965); Klopfer v. North Carolina, 385 U.S. 916, 87 S. Ct. 226, 17 L. Ed. 2d 141 (1966); State v. Lilley, 3 N.C. App. 276, 164 S.E.2d 498 (1968); State v. Greenlee, 272 N.C. 651, 159 S.E.2d 22 (1968); State v. Raynor, 19 N.C. App. 191, 198 S.E.2d 198 (1973); State v. Guffey, 39 N.C. App. 359, 250 S.E.2d 96 (1979); State v. Andrews, 52 N.C. App. 26, 277 S.E.2d 857 (1981); State v. Ellers, 56 N.C. App. 683, 289 S.E.2d 924 (1982); State v. Roberts, 310 N.C. 428, 312 S.E.2d 477 (1984); State v. Williams, 318 N.C. 624, 350 S.E.2d 353 (1986); State v. Booth, 92 N.C. App. 729, 376 S.E.2d 242 (1989); State v. Smith, 110 N.C. App. 119, 429 S.E.2d 425 (1993); State v. Avent, 222 N.C. App. 147, 729 S.E.2d 708 (2012); State v. Agustin, 229 N.C. App. 240, 747 S.E.2d 316 (2013), review denied, 749 S.E.2d 864, 2013 N.C. LEXIS 1234 (2013).

II. TIME OF OFFENSE.

Failure to Charge Any Date. - Where time is not of the essence of a crime, the omission to charge any date is immaterial by this section, though the allegation of time can do no harm. State v. Taylor, 83 N.C. 601 (1880); State v. Arnold, 107 N.C. 861, 11 S.E. 990 (1890); State v. Peters, 107 N.C. 876, 12 S.E. 74 (1890); State v. Williams, 117 N.C. 753, 23 S.E. 250 (1895).

When time is not of the essence of the offense charged, an indictment may not be quashed for failure to allege the specific date on which the crime was committed. State v. Price, 310 N.C. 596, 313 S.E.2d 556 (1984).

Failure to accurately state the date or time an offense is alleged to have occurred does not invalidate a bill of indictment, nor does it justify reversal of a conviction obtained thereon. State v. Cameron, 83 N.C. App. 69, 349 S.E.2d 327 (1986).

A judgment for burglary was not arrested because the indictment imperfectly referred to the hour of midnight as 12:00 a.m. State v. Mandina, 91 N.C. App. 686, 373 S.E.2d 155 (1988).

A child's uncertainty as to the time or particular day when the offense charged was committed shall not be grounds for nonsuit where there is sufficient evidence that the defendant committed each essential act of the offense. State v. Hicks, 319 N.C. 84, 352 S.E.2d 424 (1987).

Variance as to time is not material where no statute of limitations is involved. State v. Davis, 282 N.C. 107, 191 S.E.2d 664 (1972).

Variance Between Date on Indictment and Date Proved Not Prejudicial. - Where defendant's evidence showed that he did not participate in the crimes and, had this evidence been believed by the jury, would have entitled defendant to acquittal, the variance between the date listed on the indictment and the time of the offense as proved at trial was not prejudicial to defendant, and did not deprive him of an opportunity to present his defense. State v. Riggs, 100 N.C. App. 149, 394 S.E.2d 670 (1990).

Variance Between Time Alleged and Time Proved Not Usually Fatal. - Where time is not of the essence of the offense and the statute of limitations is not involved, a discrepancy between the date alleged in the indictment and the date shown by the State's evidence is ordinarily not fatal. State v. Lemmond, 12 N.C. App. 128, 182 S.E.2d 636 (1971); State v. Locklear, 33 N.C. App. 647, 236 S.E.2d 376, cert. denied, 293 N.C. 363, 237 S.E.2d 851 (1977); State v. Currie, 47 N.C. App. 446, 267 S.E.2d 390, cert. denied, 301 N.C. 237, 283 S.E.2d 134 (1980); State v. Christopher, 58 N.C. App. 788, 295 S.E.2d 487, rev'd on other grounds, 307 N.C. 645, 300 S.E.2d 381 (1983).

The time named in a bill of indictment is not usually an essential ingredient of the crime charged, and the State may prove that it was in fact committed on some other date. State v. Whittemore, 255 N.C. 583, 122 S.E.2d 396 (1961); State v. Wilson, 264 N.C. 373, 141 S.E.2d 801 (1965).

The State may prove that an offense charged was committed on some date other than the time named in the bill of indictment. A variance as to time, however, becomes material and of the essence when it deprives a defendant of an opportunity to adequately present his defense. State v. Price, 310 N.C. 596, 313 S.E.2d 556 (1984).

Ordinarily, the date alleged in the indictment is neither an essential nor a substantial fact, and therefore the State may prove that the offense was actually committed on some date other than that alleged in the indictment without the necessity of a motion to change the bill. State v. Cameron, 83 N.C. App. 69, 349 S.E.2d 327 (1986).

But May Not Be Used to Deprive Defendant of His Defense. - This salutary rule, preventing a defendant who does not rely on time as a defense from using a discrepancy between the time named in the bill and the time shown by the evidence for the State, cannot be used to ensnare a defendant and thereby deprive him of an opportunity to adequately present his defense. State v. Whittemore, 255 N.C. 583, 122 S.E.2d 396 (1961); State v. Wilson, 264 N.C. 373, 141 S.E.2d 801 (1965); State v. Lemmond, 12 N.C. App. 128, 182 S.E.2d 636 (1971); State v. Locklear, 33 N.C. App. 647, 236 S.E.2d 376, cert. denied, 293 N.C. 363, 237 S.E.2d 851 (1977); State v. Currie, 47 N.C. App. 446, 267 S.E.2d 390, cert. denied, 301 N.C. 237, 283 S.E.2d 134 (1980); State v. Christopher, 58 N.C. App. 788, 295 S.E.2d 487, rev'd on other grounds, 307 N.C. 645, 300 S.E.2d 381 (1983).

As Where He Relies upon Alibi. State v. Lemmond, 12 N.C. App. 128, 182 S.E.2d 636 (1971).

Where a defendant relies upon a defense of alibi, time becomes essential. State v. Cameron, 83 N.C. App. 69, 349 S.E.2d 327 (1986).

Time is not of the essence of carrying a concealed weapon, and it may be shown at a previous time to that alleged in the bill. State v. Spencer, 185 N.C. 765, 117 S.E. 803 (1923).

Nor Felonious Assault. - There was no fatal variance between an indictment charging that the date of a felonious assault was April 17, 1979, and evidence that the assault occurred on February 17, 1979, where the variance was caused by a clerical mistake in the indictment; the statute of limitations was not involved; all of the evidence at trial concerned an incident on February 17; defense counsel's questioning of the witnesses clearly indicates that he was aware of the clerical error before trial; and defendant was not prejudiced in his preparation of an adequate defense by the variance. State v. Bailey, 49 N.C. App. 377, 271 S.E.2d 752 (1980), cert. denied, 301 N.C. 723, 276 S.E.2d 288 (1981).

Nor Receiving Stolen Goods. - When time is not of the essence of the offense, leaving out the date does not make the bill of indictment defective, and the crime of receiving stolen goods is not one of the offenses in which time is of the essence. State v. Tessnear, 254 N.C. 211, 118 S.E.2d 393 (1961).

Nor Breaking or Entering. - Indictment alleging violation of G.S. 14-54 "on or about the . . . day of June, A.D. 1956" was not fatally defective. Time not being of the essence of the offense charged, it was not necessary that the exact date be specified. State v. Andrews, 246 N.C. 561, 99 S.E.2d 745 (1957).

Nor Rape. - It is to the girl's first act of intercourse with a man when she is under 16 (now 13) years of age, that the law attaches criminality on the part of the man, and a variance between allegation and proof as to time is not material where no statute of limitations is involved. State v. Trippe, 222 N.C. 600, 24 S.E.2d 340 (1943).

Nor Unlawfully Withholding Credit Card. - The date upon which an allegedly stolen credit card was issued is not necessary to describe the card, is not an essential element of the offense charged, and therefore is not a material fact which the State must allege and prove. State v. Springer, 283 N.C. 627, 197 S.E.2d 530 (1973).

Nor Abandonment. - Failure to specify a particular day in an indictment for abandonment is not fatal especially in view of an instruction that the jury should consider only such evidence as tends to show that the defendant violated the statute after a particular date. State v. Jones, 201 N.C. 424, 160 S.E. 468 (1931).

Nor Habitual Driving While Intoxicated. - Defendant's conviction of driving while intoxicated under G.S. 20-138.5 was affirmed; all of the requirements of the charge were met, as a disputed prior conviction occurred within the statutory seven year period, and the trial court properly allowed the State to amend the indictment to state the date of the conviction, as time was not of the essence pursuant to G.S. 15-155. State v. Winslow, 169 N.C. App. 137, 609 S.E.2d 463 (2005), review denied, in part, 359 N.C. 642, 617 S.E.2d 660 (2005).

In cases of sexual assaults on children, temporal specificity requisites diminish. Thus, where the child victim testified that defendant perpetrated rape and other sexual offenses against her on several occasions over a period of six years, and specifically recalled offenses occurring on September 27 and September 29, 1988, for both of which dates the defendant presented an alibi, and where the difference between the testimony of the victim as to which offense occurred on which date did not prevent the defendant from presenting his alibi, there was no error in letting the case go to the jury. State v. Young, 103 N.C. App. 415, 406 S.E.2d 3, cert. denied, 330 N.C. 201, 412 S.E.2d 65 (1991).

Time of Birth in Bastardy Proceeding. - Indictment, in a bastardy proceeding, which states that the child was born on August 13, 1941, whereas the evidence was that the birth occurred on November 13, 1940, is not fatally defective. State v. Moore, 222 N.C. 356, 23 S.E.2d 31 (1942).

Reversal of Dates of Offenses. - Variance between indictments which charged the defendant with purchasing heroin on July 8 and marijuana on July 11 and evidence which showed that the dates of purchase were reversed was not such a fatal variance as to require a new trial. State v. Knight, 9 N.C. App. 62, 175 S.E.2d 332 (1970).

The date given in a bill of indictment usually is not an essential element of the crime charged. The State may prove that the crime was in fact committed on some other date. This rule, however, may not be used to deprive a defendant of his defense. State v. Sills, 311 N.C. 370, 317 S.E.2d 379 (1984).

Failure to Include Year in Alleged Date of Offense. - Where the warrant upon which defendant was tried place the time of the offense as "on or about the 19 day of June, 19. . .," the failure to insert the year being defendant's only assignment of error, the warrant was not fatally defective. State v. Hawkins, 19 N.C. App. 674, 199 S.E.2d 746 (1973).

Change of Date on Indictment Permitted. - In prosecution for incest, where although the testimony of the young prosecuting witness as to the date of the offense differed from that of her mother, all of the State's evidence showed that the crime, if committed, took place on the Sunday of the weekend during which a certain individual visited the defendant's residence, the change on the indictment of the date of the offense, as permitted by the trial court, did not substantially alter the charge against the defendant, nor did it unfairly surprise him or prevent him from presenting a defense. State v. Cameron, 83 N.C. App. 69, 349 S.E.2d 327 (1986).

It was the fact that another felony was committed, not its specific date, which was the essential question in habitual felon indictment; therefore, because date alleged in indictment was neither an essential nor a substantial fact as to the charge of habitual felon, the trial court properly allowed the state to change the date in the habitual felon indictment. State v. Locklear, 117 N.C. App. 255, 450 S.E.2d 516 (1994).

Fatal Variance Not Shown. - There was no fatal variance between the allegations contained in the indictment and the actual proof presented by the State with regard to the date of the offense, where although the warrant and bill of indictment showed the date of the offense as March 13, 1985, the defendant was put on notice as to the child victim's uncertainty as to the date during a probable cause hearing, and where, additionally, the defendant did not in fact rely on the date stated in the indictment. State v. Ramey, 318 N.C. 457, 349 S.E.2d 566 (1986).

I. GENERAL CONSIDERATION.

Constitutionality. - This section is not unconstitutional. State v. Young, 305 N.C. 391, 289 S.E.2d 374 (1982).

When Applicable. - This section and G.S. 15-169 are applicable only when there is evidence tending to show that the defendant may be guilty of a lesser offense. State v. Jones, 249 N.C. 134, 105 S.E.2d 513 (1958), commented on in 41 N.C.L. Rev. 118 (1962); State v. Stalnaker, 1 N.C. App. 524, 162 S.E.2d 76 (1968); State v. Williams, 275 N.C. 77, 165 S.E.2d 481 (1969); State v. Murry, 277 N.C. 197, 176 S.E.2d 738 (1970); State v. Carnes, 279 N.C. 549, 184 S.E.2d 235 (1971); State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974), death sentence vacated and remanded, 428 U.S. 902, 96 S. Ct. 3203, 49 L. Ed. 2d 1205 (1976); State v. Lampkins, 286 N.C. 497, 212 S.E.2d 106 (1975), cert. denied, 428 U.S. 909, 96 S. Ct. 3220, 49 L. Ed. 2d 1216 (1976); State v. Weaver, 306 N.C. 629, 295 S.E.2d 375 (1982).

When a defendant is indicted for a criminal offense he may be convicted of the charged offense or of a lesser included offense when the greater offense charged in the bill contains all the essential elements of the lesser offense, all of which could be proved by proof of the allegations of fact contained in the indictment. State v. Riera, 276 N.C. 361, 172 S.E.2d 535 (1970); State v. Arnold, 285 N.C. 751, 208 S.E.2d 646 (1974); State v. Aiken, 286 N.C. 202, 209 S.E.2d 763 (1974); State v. Williams, 51 N.C. App. 397, 276 S.E.2d 715, cert. denied, 303 N.C. 319, 281 S.E.2d 658 (1981).

G.S. 15-169 and this section are applicable only when there is evidence tending to show the defendant may be guilty of an included crime of lesser degree. State v. Thompson, 280 N.C. 202, 185 S.E.2d 666 (1972).

An indictment or information is insufficient to charge the accused with the commission of a minor offense, or one of less degree, unless, in charging the major offense, it necessarily includes within itself all of the essential elements of the minor offense. State v. Chavis, 9 N.C. App. 430, 176 S.E.2d 388 (1970); State v. Rick, 54 N.C. App. 104, 282 S.E.2d 497 (1981).

An indictment or information is insufficient to charge the accused with the commission of a minor offense or one of less degree unless, in charging the major offense, it necessarily includes within itself all of the essential elements of the minor offense, or sufficiently sets them forth by separate allegations in an added count; but when the indictment or information contains all the essential constituents of the minor offense, it sufficiently alleges that offense. State v. Rorie, 252 N.C. 579, 114 S.E.2d 233 (1960).

Construction With Other Statutes - G.S. 15-144, when construed alongside G.S. 15-170, implicitly authorizes the State to utilize a short-form indictment to charge attempted first-degree murder; when drafting such a indictment, it is sufficient for statutory purposes for the State to allege that the accused person feloniously, willfully, and of his malice aforethought, did (attempt to) kill and murder the named victim. State v. Jones, 359 N.C. 832, 616 S.E.2d 496 (2005).

Use of Short-form Attempted Murder Indictment. - Defendant's attempt to have conviction for attempted first-degree murder vacated based on his claim that the use of a short-form indictment for the crime of attempted murder was not authorized in North Carolina was without merit; the indictment sufficiently alleged the offense of attempted first-degree murder using the language from G.S. 15-144 and G.S. 15-170 providing that defendant could be convicted of the crime charged therein, or of an attempt to commit the crime so charged, or of a less degree of the same crime. State v. McVay, 174 N.C. App. 335, 620 S.E.2d 883 (2005).

Lesser included offense is one in which the greater offense contains all of the essential elements of the lesser offense. State v. Weaver, 306 N.C. 629, 295 S.E.2d 375 (1982).

Greater crime includes the lesser, so that where an offense is alleged in an indictment, and the jury acquits as to that one, it may convict of the lesser offense when the charge is inclusive of both offenses. State v. Craig, 35 N.C. App. 547, 241 S.E.2d 704 (1978); State v. Daniels, 51 N.C. App. 294, 276 S.E.2d 738 (1981).

Conviction for attempted sexual statutory offense was upheld in action charging the completed crime since the evidence showed that defendant demanded that victim perform fellatio, but the victim refused; thus, evidence was sufficient to support a conviction for the attempted, but not the completed, crime. State v. Sines, 158 N.C. App. 79, 579 S.E.2d 895 (2003), cert. denied, 357 N.C. 468, 587 S.E.2d 69 (2003).

Conviction on lesser offense renders any error in submission of greater offense harmless. State v. Williams, 100 N.C. App. 567, 397 S.E.2d 364 (1990), cert. dismissed, 328 N.C. 576, 403 S.E.2d 520 (1991).

Offense Not Included If It Contains Element Not in Other Crime. - A crime is not a lesser included offense of another crime if the former contains any element that the latter does not. State v. Peoples, 65 N.C. App. 168, 308 S.E.2d 500 (1983).

Crime of "less degree" is not exclusively one which carries a less severe sanction than the crime formally charged in the indictment. State v. Young, 305 N.C. 391, 289 S.E.2d 374 (1982).

Facts of particular case should not determine whether one crime is a lesser included offense of another. Rather, the definitions accorded the crimes determine whether one offense is a lesser included offense of another crime. In other words, all of the essential elements are included in the greater crime. If the lesser crime has an essential element which is not completely covered by the greater crime, it is not a lesser included offense. The determination is made on a definitional, not a factual basis. State v. Weaver, 306 N.C. 629, 295 S.E.2d 375 (1982).

The determination of whether one crime is a lesser included offense of another is made on a definitional, not a factual, basis. All essential elements of the lesser offense must be completely covered by the essential elements of the greater offense. State v. Wortham, 80 N.C. App. 54, 341 S.E.2d 76 (1986), modified, 318 N.C. 669, 351 S.E.2d 294 (1987).

Defendant may plead guilty to less degrees of the same crimes charged in the indictments against him, and the State may accept such pleas. State v. Woody, 271 N.C. 544, 157 S.E.2d 108 (1967).

Discretion of Court. - It is not within the trial judge's province to negotiate a plea or enter judgment on a plea to a charge which is not a lesser included offense of the charge at issue. In re Fuller, 345 N.C. 157, 478 S.E.2d 641 (1996).

Evidence Required to Support Conviction of Lesser Degree. - When the solicitor (now district attorney) announces that he will not seek a conviction upon the maximum degree of the crime charged in the bill of indictment, and the defendant interposes no objection to being tried upon the lesser degree of the offense, the sufficiency of the evidence to support a conviction of the lesser degree must be measured by the same standards which would be applied had the bill of indictment charged only the lesser degree of the offense. State v. Allen, 279 N.C. 115, 181 S.E.2d 453 (1971), overruled on other grounds, State v. Hickey, 317 N.C. 457, 346 S.E.2d 646 (1986).

Jury Not to Arbitrarily Convict of Lesser Degree. - This section and G.S. 15-169 were not intended to give to the jury the arbitrary right or discretion to convict a defendant of a lesser degree of the crime charged or of a less serious offense than that charged, if the uncontradicted evidence shows beyond a reasonable doubt that the defendant is guilty of the more serious offense charged in the bill of indictment. State v. Brown, 227 N.C. 383, 42 S.E.2d 402 (1947).

Silence of Verdict as to All But One Count Distinguished. - Where there are several counts in a bill, if the jury find the defendant guilty on one count and say nothing in their verdict concerning the other counts, it will be equivalent to a verdict of not guilty as to them. This principle should not be confused with the practice, authorized by this section, which permits the conviction of a less degree of the same crime, when included in a single count. State v. Hampton, 210 N.C. 283, 186 S.E. 251 (1936).

Joinder Mere Surplusage. - Since this section was adopted, the joinder in an indictment of a count for a lesser offense, or for an attempt to commit the same, is mere surplusage. State v. Brown, 113 N.C. 645, 18 S.E. 51 (1893).

Election by District Attorney to Try Lesser Degrees and Included Offenses. - Upon the return of an indictment sufficient in form to support a conviction of the defendant of either the maximum degree of the offense charged, a lesser degree thereof or a lesser offense, all of the elements of which are included in the crime charged, the solicitor (now district attorney) has the authority to elect not to try the defendant on the maximum degree of the offense charged but to put him on trial for the lesser degree thereof and lesser offenses included therein. The effect of such election by the solicitor (now district attorney), announced in open court, is that of a verdict of not guilty upon the maximum degree of the offense charged, leaving for trial the lesser degree and the lesser included offenses. State v. Allen, 279 N.C. 115, 181 S.E.2d 453 (1971), overruled on other grounds, State v. Hickey, 317 N.C. 457, 346 S.E.2d 646 (1986).

When, upon arraignment, or thereafter in open court, and in the presence of the defendant, the solicitor (now district attorney) announces the State will not ask for a verdict of guilty of the maximum crime charged but will ask for a verdict of guilty on a designated and included lesser offense embraced in the bill, and the announcement is entered in the minutes of the court, the announcements is the equivalent of a verdict of not guilty on the charge or charges the solicitor (now district attorney) has elected to abandon. State v. Gaston, 4 N.C. App. 575, 167 S.E.2d 510 (1969).

The defendant was charged with burglary in the first degree in the bill of indictment. And when the solicitor (now district attorney) stated that he would not ask for a verdict of first degree burglary, but would only ask for a verdict of second degree burglary on the indictment, it was tantamount to taking a nolle prosequi with leave on the capital charge. State v. Gaston, 4 N.C. App. 575, 167 S.E.2d 510 (1969).

Uncontradicted Evidence of Greater Offense May Support Lesser Verdict. - When the State, either through a bill of indictment as returned by the grand jury or through the election of its solicitor (now district attorney) to seek a lesser verdict, brings the defendant to trial on a lesser degree of the offense charged, the case can be submitted to the jury if the uncontradicted evidence, as thereafter developed, shows the defendant is guilty of the more serious degree of the crime. State v. Allen, 279 N.C. 115, 181 S.E.2d 453 (1971), overruled on other grounds, State v. Hickey, 317 N.C. 457, 346 S.E.2d 646 (1986).

Conviction of Greater Offense Than Charged. - It would be without precedent to try defendant for one offense and to convict him of another and greater offense, even though the conviction be of a higher degree of the same offense for which he is being tried. State v. Jordan, 226 N.C. 155, 37 S.E.2d 111 (1946).

Elements of Attempt. - The two elements of an attempt to commit a crime are: (1) An intent to commit it, and (2) an overt act done for that purpose, going beyond mere preparation, but falling short of the completed offense. State v. Gray, 58 N.C. App. 102, 293 S.E.2d 274, cert. denied, 306 N.C. 746, 295 S.E.2d 482 (1982).

An attempt is an act done with intent to commit that crime, carried beyond mere preparation to commit it, but falling short of its actual commission. State v. McAlister, 59 N.C. App. 58, 295 S.E.2d 501 (1982), cert. denied, 307 N.C. 471, 299 S.E.2d 226 (1983).

Intent Alone Not Sufficient for Attempt Conviction. - The intent, though connected with preparations to commit a criminal offense, is not alone sufficient for a conviction of the attempt, unless it is connected with some overt act or acts toward the end in view that will, in the judgment of the one charged, and as matters appeared to him, result in the consummation of the contemplated purpose. State v. Addor, 183 N.C. 687, 110 S.E. 650 (1922).

When Motion for Nonsuit Denied. - A motion for judgment as of nonsuit addressed to the entire bill is properly overruled if there is evidence sufficient to support a conviction of the crime charged or of an included crime. State v. Virgil, 263 N.C. 73, 138 S.E.2d 777 (1964).

New Trial Must Be on Full Charge. - Upon an appeal from a conviction for a lesser offense than that charged in the indictment, a new trial, if granted, must be upon the full charge in the bill. State v. Matthews, 142 N.C. 621, 55 S.E. 342 (1906).

Effect of State's Election of Felony Murder Theory. - The State's election to try a homicide case, and the trial judge's submission of it to the jury, only on a felony murder theory did not in effect acquit defendant of murder on a theory of premeditation and deliberation and all of its lesser included homicide offenses. State v. Thomas, 325 N.C. 583, 386 S.E.2d 555 (1989), holding that the jury should have been instructed on involuntary murder under the circumstances.

A defendant may always show by the evidence not only his innocence under the theory of prosecution chosen by the State, but also his possible guilt of some lesser offense. If this lesser offense is included in the crime charged in the indictment and if there is evidence to support it, defendant is entitled to have it submitted to the jury. These different theories of defense cannot be abrogated by the State's decision to prosecute, nor the trial court's decision to submit the case on only one prosecutorial theory, when under the indictment and the evidence adduced another is more favorable to defendant. State v. Thomas, 325 N.C. 583, 386 S.E.2d 555 (1989).

Trial court erred in allowing the State to amend the indictment because the allegations in the original felonious breaking and entering indictment did not encompass the elements of assault with a deadly weapon with the intent to kill or assault with a deadly weapon inflicting serious injury. State v. Silas, 168 N.C. App. 627, 609 S.E.2d 400 (2005), aff'd in part, modified in part, 360 N.C. 377, 627 S.E.2d 604 (2006).

Applied in State v. Bryson, 173 N.C. 803, 92 S.E. 698 (1917); State v. Lutterloh, 188 N.C. 412, 124 S.E. 752 (1924); State v. Lee, 206 N.C. 472, 174 S.E. 288 (1934); State v. Feyd, 213 N.C. 617, 197 S.E. 171 (1938); State v. Hall, 214 N.C. 639, 200 S.E. 375 (1939); State v. Jones, 222 N.C. 37, 21 S.E.2d 812 (1942); State v. Gay, 224 N.C. 141, 29 S.E.2d 458 (1944); State v. Jones, 227 N.C. 402, 42 S.E.2d 465 (1947); State v. Jones, 229 N.C. 276, 49 S.E.2d 463 (1948); State v. Matthews, 231 N.C. 617, 58 S.E.2d 625 (1950); State v. Lambe, 232 N.C. 570, 61 S.E.2d 608 (1950); State v. McNeely, 244 N.C. 737, 94 S.E.2d 853 (1956); State v. Fletcher, 268 N.C. 140, 150 S.E.2d 54 (1966); State v. Worthey, 270 N.C. 444, 154 S.E.2d 515 (1967); State v. Jones, 275 N.C. 432, 168 S.E.2d 380 (1969); State v. Martin, 6 N.C. App. 616, 170 S.E.2d 539 (1969); Richardson v. Ross, 310 F. Supp. 134 (E.D.N.C. 1970); State v. Accor, 281 N.C. 287, 188 S.E.2d 332 (1972); State v. Buie, 26 N.C. App. 151, 215 S.E.2d 401 (1975); State v. McKenzie, 292 N.C. 170, 232 S.E.2d 424 (1977); State v. Shaw, 305 N.C. 327, 289 S.E.2d 325 (1982); State v. Hageman, 56 N.C. App. 274, 289 S.E.2d 89 (1982); State v. Hageman, 307 N.C. 1, 296 S.E.2d 433 (1982); State v. Robinson, 310 N.C. 530, 313 S.E.2d 571 (1984); State v. Clark, 137 N.C. App. 90, 527 S.E.2d 319 (2000).

Cited in State v. Colson, 194 N.C. 206, 139 S.E. 230 (1927); State v. Ratcliff, 199 N.C. 9, 153 S.E. 605 (1930); State v. Palmer, 212 N.C. 10, 192 S.E. 896 (1937); State v. Hobbs, 216 N.C. 14, 3 S.E.2d 431 (1939); State v. Johnson, 218 N.C. 604, 12 S.E.2d 278 (1940); State v. Hairston, 222 N.C. 455, 23 S.E.2d 885 (1943); State v. Gregory, 223 N.C. 415, 27 S.E.2d 140 (1943); State v. Farrell, 223 N.C. 804, 28 S.E.2d 560 (1944); State v. Grimes, 226 N.C. 523, 39 S.E.2d 394 (1946); State v. Fowler, 230 N.C. 470, 53 S.E.2d 853 (1949); State v. Stone, 245 N.C. 42, 95 S.E.2d 77 (1956); State v. Willis, 255 N.C. 473, 121 S.E.2d 854 (1961); State v. Perry, 265 N.C. 517, 144 S.E.2d 591 (1965); Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968); State v. Dickens, 272 N.C. 515, 158 S.E.2d 614 (1968); State v. Barksdale, 16 N.C. App. 559, 192 S.E.2d 659 (1972); State v. Davis, 302 N.C. 370, 275 S.E.2d 491 (1981); State v. Ludlum, 303 N.C. 666, 281 S.E.2d 159 (1981); State v. Bullard, 82 N.C. App. 718, 347 S.E.2d 874 (1986); State v. Whiteside, 325 N.C. 389, 383 S.E.2d 911 (1989); Alt v. Parker, 112 N.C. App. 307, 435 S.E.2d 773 (1993); State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993); State v. Camacho, 337 N.C. 224, 446 S.E.2d 8 (1994); State v. Evans, 149 N.C. App. 767, 562 S.E.2d 102 (2002); State v. Scott, 150 N.C. App. 442, 564 S.E.2d 285 (2002), appeal dismissed, cert. denied, 356 N.C. 443, 573 S.E.2d 508 (2002); State v. Baker, 245 N.C. App. 94, 781 S.E.2d 851 (2016).

II. JURY INSTRUCTIONS.

Defendant Entitled to Complete Charge. - Under the provisions of this section when the bill of indictment is sufficient with the supporting evidence upon the trial, the defendant may be convicted of the criminal offense charged or of a lesser degree thereof, and he is entitled to a charge from the court on all degrees of the crime thus encompassed by the indictment. State v. Robinson, 188 N.C. 784, 125 S.E. 617 (1924). See also State v. Keaton, 206 N.C. 682, 175 S.E. 296 (1934).

When there is evidence tending to support a milder verdict than the one charged in the bill of indictment the defendant is entitled to have the different views presented to the jury under a proper charge. State v. Burnette, 213 N.C. 153, 195 S.E. 356 (1938); State v. DeGraffenreid, 223 N.C. 461, 27 S.E.2d 130 (1943). See also State v. Chambers, 218 N.C. 442, 11 S.E.2d 280 (1940).

Where there is evidence of defendant's guilt of a lesser degree of the crime charged in the indictment, the court must submit defendant's guilt of the lesser included offense to the jury. State v. Putnam, 24 N.C. App. 570, 211 S.E.2d 493 (1975).

The general rule of practice is, that when it is permissible under the indictment to convict the defendant of "a less degree of the same crime," and there is evidence to support the milder verdict, the defendant is entitled to have the different views arising on the evidence presented to the jury under proper instructions. State v. Childress, 228 N.C. 208, 45 S.E.2d 42 (1947); State v. Haith, 48 N.C. App. 319, 269 S.E.2d 205, cert. denied and appeal dismissed, 301 N.C. 403, 273 S.E.2d 449 (1980).

And Conviction of Offense Charged Does Not Cure Error. - A verdict of guilty of the offense charged in the indictment does not cure error of the court in failing to submit to the jury the question of defendant's guilt of less degrees of the crime. State v. McNeill, 229 N.C. 377, 49 S.E.2d 733 (1948); State v. Davis, 242 N.C. 476, 87 S.E.2d 906 (1955); State v. Lang, 58 N.C. App. 117, 293 S.E.2d 255, cert. denied, 306 N.C. 747, 295 S.E.2d 761 (1982).

An error in failing to submit lesser offenses is not cured by a verdict convicting him of the crime as charged in the bill of indictment, for in such case it cannot be known whether the jury would have convicted of a less degree if the different views, arising on the evidence, had been correctly presented by the trial court. State v. Burnette, 213 N.C. 153, 195 S.E. 356 (1938); State v. DeGraffenreid, 223 N.C. 461, 27 S.E.2d 130 (1943). See also State v. Chambers, 218 N.C. 442, 11 S.E.2d 280 (1940); State v. Childress, 228 N.C. 208, 45 S.E.2d 42 (1947); State v. Riera, 276 N.C. 361, 172 S.E.2d 535 (1970); State v. Haith, 48 N.C. App. 319, 269 S.E.2d 205, cert. denied and appeal dismissed, 301 N.C. 403, 273 S.E.2d 449 (1980).

Error in failing to submit defendant's guilt of the lesser included offense to the jury is not cured by a verdict convicting defendant of the offense charged. State v. Jones, 6 N.C. App. 712, 171 S.E.2d 17 (1969); State v. Holloway, 7 N.C. App. 147, 171 S.E.2d 475 (1970); State v. Putnam, 24 N.C. App. 570, 211 S.E.2d 493 (1975).

An error in failing to charge upon the lesser degrees of the crime is not cured by a verdict of conviction upon one of a greater degree. State v. Robinson, 188 N.C. 784, 125 S.E. 617 (1924). See also State v. Keaton, 206 N.C. 682, 175 S.E. 296 (1934).

But Evidence Must Support Conviction of Lesser Offense. - This section does not make mandatory the submission to the jury of a lesser included offense where the indictment does not charge such offense and where there is no evidence of such offense. State v. McLean, 2 N.C. App. 460, 163 S.E.2d 125 (1968); State v. Stevenson, 3 N.C. App. 46, 164 S.E.2d 24 (1968).

A court is not required to submit a lesser included offense to the jury when there is no evidence to support such a charge. State v. Carriker, 24 N.C. App. 91, 210 S.E.2d 98 (1974), rev'd on other grounds, 287 N.C. 530, 215 S.E.2d 134 (1975); State v. Tidwell, 323 N.C. 668, 374 S.E.2d 577 (1989).

In order to justify submission of a lesser included offense there must be some evidence to support submission of the lesser offenses to the jury. State v. Thompson, 306 N.C. 526, 294 S.E.2d 314 (1982).

Necessity for instructing jury as to included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor. State v. Jones, 264 N.C. 134, 141 S.E.2d 27 (1965); State v. Williams, 2 N.C. App. 194, 162 S.E.2d 688 (1968); State v. Stevenson, 3 N.C. App. 46, 164 S.E.2d 24 (1968); State v. Lilley, 3 N.C. App. 276, 164 S.E.2d 498 (1968); State v. Williams, 275 N.C. 77, 165 S.E.2d 481 (1969); State v. Bailey, 4 N.C. App. 407, 167 S.E.2d 24 (1969); State v. Jones, 6 N.C. App. 712, 171 S.E.2d 17 (1970); State v. Parker, 7 N.C. App. 191, 171 S.E.2d 665 (1970); State v. Murry, 277 N.C. 197, 176 S.E.2d 738 (1970); State v. Carnes, 279 N.C. 549, 184 S.E.2d 235 (1971); State v. Black, 286 N.C. 191, 209 S.E.2d 458 (1974); State v. Lampkins, 286 N.C. 497, 212 S.E.2d 106 (1975), cert. denied, 428 U.S. 909, 96 S. Ct. 3220, 49 L. Ed. 2d 1216 (1976); State v. Putnam, 24 N.C. App. 570, 211 S.E.2d 493 (1975); State v. Mayberry, 38 N.C. App. 509, 248 S.E.2d 402 (1978); State v. Brown, 300 N.C. 731, 268 S.E.2d 201 (1980); State v. Porter, 303 N.C. 680, 281 S.E.2d 377 (1980); State v. Rinck, 303 N.C. 551, 280 S.E.2d 912 (1981); State v. Williams, 51 N.C. App. 397, 276 S.E.2d 715, cert. denied, 303 N.C. 319, 281 S.E.2d 658 (1981); State v. Thomas, 52 N.C. App. 186, 278 S.E.2d 535 (1981), cert. denied, 305 N.C. 591, 292 S.E.2d 16 (1982); State v. Gray, 58 N.C. App. 102, 293 S.E.2d 274, cert. denied, 306 N.C. 746, 295 S.E.2d 482 (1982).

Where all the evidence at the trial of a criminal action, if believed by the jury, tends to show that the crime charged in the indictment was committed as alleged therein, and there is no evidence tending to show the commission of a crime of less degree, it is not error for the court to fail to instruct the jury that they may acquit the defendant of the crime charged in the indictment and convict him of a crime of less degree. State v. Cox, 201 N.C. 357, 160 S.E. 358 (1931); State v. Manning, 221 N.C. 70, 18 S.E.2d 821 (1942); State v. Sawyer, 224 N.C. 61, 29 S.E.2d 34 (1944).

The provisions of this section in regard to conviction of a less degree of the crime charged in a bill of indictment applies only where there is some evidence that a less degree of the crime had been committed, and where the State's uncontradicted evidence is to the effect that the crime of rape had been committed and the defendant relies solely upon an alibi, the refusal of the court to charge upon the lesser degrees of the crime or of an attempt is not error. State v. Smith, 201 N.C. 494, 160 S.E. 577 (1931).

Where one is indicted for a crime and under the same bill it is permissible to convict the defendant of a less degree of the same crime and there is evidence tending to support a milder verdict the prisoner is entitled to have the different views presented to the jury under a proper charge, but where there is no evidence to support such milder verdict the court is not required to submit the question of such verdict to the jury. State v. Thacker, 13 N.C. App. 299, 185 S.E.2d 455 (1971), rev'd on other grounds, 281 N.C. 447, 189 S.E.2d 145 (1972).

The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor. Hence, there is no such necessity if the State's evidence tends to show completion of the offense as charged and there is no conflicting evidence relating to elements of the crime charged. Mere contention that the jury might accept the State's evidence in part and might reject it in part will not suffice. State v. McLean, 2 N.C. App. 460, 163 S.E.2d 125 (1968).

A defendant may be convicted of a less degree of the crime charged, or for which he is being tried, when there is evidence to support the milder verdict. State v. Jordan, 226 N.C. 155, 37 S.E.2d 111 (1946).

In a proper case where it is permissible under the indictment to convict defendant of a lesser included offense, the court must still determine that there is evidence tending to support the lesser offense in order to submit it for the jury's consideration. Upon a favorable determination of both issues, that is, that the crime is a lesser included offense and that there is evidence to support it, defendant is entitled to have the instruction on the lesser offense submitted to the jury. State v. Brewer, 325 N.C. 550, 386 S.E.2d 569 (1989), cert. denied, 495 U.S. 951, 110 S. Ct. 2215, 109 L. Ed. 2d 541 (1990).

When Instruction on Lesser Included Homicides Required. - In a felony murder prosecution under an indictment in the form prescribed by G.S. 15-144, evidence that defendant did not commit the underlying felony requires an instruction upon whatever lesser included homicides the indictment and the evidence support. State v. Thomas, 325 N.C. 583, 386 S.E.2d 555 (1989).

Instructions Not Required Where State's Evidence Is Positive as to Each Element. - Where the State's evidence is positive as to each and every element of the crime charged and there is no conflicting evidence relating to any element of the charged crime, the court is not required to submit an issue as to defendant's guilt or innocence of a lesser included offense. State v. Owen, 24 N.C. App. 598, 211 S.E.2d 830, cert. denied, 287 N.C. 263, 214 S.E.2d 435 (1975); State v. McKinnon, 306 N.C. 288, 293 S.E.2d 118 (1982); State v. Musselwhite, 59 N.C. App. 477, 297 S.E.2d 181 (1982).

The trial court in a rape prosecution did not err in failing to submit to the jury the lesser included offenses of assault with intent to commit rape under former G.S. 14-22 and of assault on a female, where the State's evidence was positive as to each and every element of the crime of rape and there was no conflict in the evidence relating to any element thereof. State v. Flippin, 280 N.C. 682, 186 S.E.2d 917 (1972).

And Uncontradicted. - It is not necessary to submit the lesser included offense if the evidence discloses no conflicting evidence relating to the essential elements of the greater crime. State v. Gray, 58 N.C. App. 102, 293 S.E.2d 274, cert. denied, 306 N.C. 746, 295 S.E.2d 482 (1982).

Where the uncontradicted evidence is that the deceased was murdered by poison, there is no basis for a verdict of second-degree murder or manslaughter. State v. Allen, 279 N.C. 115, 181 S.E.2d 453 (1971), overruled on other grounds, State v. Hickey, 317 N.C. 457, 346 S.E.2d 646 (1986).

Where upon the trial for murder all the evidence tends to show that if the defendant is guilty, he is guilty of the crime of murder in the first degree, the failure of the trial court to charge upon the law of murder in the second degree or manslaughter is not error under this section. State v. Ferrell, 205 N.C. 640, 172 S.E. 186 (1934).

Where all the evidence tends to show that defendants feloniously took money from the person of prosecuting witness by violence and against his will through the use or threatened use of firearms, the court properly limits the jury to a verdict of guilty of robbery with firearms or a verdict of not guilty, there being no evidence warranting court in submitting the question of defendant's guilt of less degrees of the crime. State v. Bell, 228 N.C. 659, 46 S.E.2d 834 (1948).

In a rape case, the trial court did not err in failing to submit the lesser included offenses of assault with intent to commit rape under former G.S. 14-22 and assault on a female where all the State's evidence tended to show commission of rape and the defendant's evidence was that he had never had intercourse with the prosecutrix nor did he touch her in a manner constituting an assault. State v. Lampkins, 286 N.C. 497, 212 S.E.2d 106 (1975), cert. denied, 428 U.S. 909, 96 S. Ct. 3220, 49 L. Ed. 2d 1216 (1976).

Absence of Specific Request for Instruction. - When there is evidence of guilt of a lesser offense, a defendant is entitled to have the trial court instruct the jury with respect to that lesser included offense even though the defendant makes no request for such an instruction. State v. Lang, 58 N.C. App. 117, 293 S.E.2d 255, cert. denied, 306 N.C. 747, 295 S.E.2d 761 (1982); State v. Gray, 58 N.C. App. 102, 293 S.E.2d 274, cert. denied, 306 N.C. 746, 295 S.E.2d 482 (1982).

If the defendant is entitled to an instruction on the lesser offense, based on the presence of such evidence, it is of no legal significance that defendant's counsel did not make a specific request for the instruction nor that the defendant was subsequently convicted of the greater offense. State v. Williams, 51 N.C. App. 397, 276 S.E.2d 715, cert. denied, 303 N.C. 319, 281 S.E.2d 658 (1981).

Where a defendant's sole defense is one of alibi, he is not entitled to have the jury consider a lesser offense on the theory that jurors may take bits and pieces of the State's evidence and bits and pieces of defendant's evidence and thus find him guilty of a lesser offense not positively supported by the evidence. State v. Brewer, 325 N.C. 550, 386 S.E.2d 569 (1989), cert. denied, 495 U.S. 951, 110 S. Ct. 2215, 109 L. Ed. 2d 541 (1990).

Defendant Not Entitled to Instruction. - Defendant's testimony was that he knew nothing of any of the controlled substances found in the house, there was no basis on which a jury could find that a lesser offense was committed, and at trial the defendant denied knowledge of all of the controlled substances, not just those not in "plain view;" therefore, the trial court did not err in refusing to instruct the jury on a lesser included offense of felonious possession of heroin. State v. Agubata, 92 N.C. App. 651, 375 S.E.2d 702 (1989).

In a trafficking by possession case, the trial judge properly refused to instruct on attempt where the State's uncontroverted evidence showed that defendant gave officer a tube sock full of cash and discussed the exchange before the officer placed cocaine in the back seat of his vehicle and left the car. State v. Broome, 136 N.C. App. 82, 523 S.E.2d 448 (1999), cert. denied, 351 N.C. 362, 543 S.E.2d 136 (2000).

Error to Charge on Unsupported Lesser Degree. - Where all the evidence tends to show that the crime charged in the indictment was committed, and there is no evidence tending to show the commission of a crime of lesser degree, the principle of lesser included offenses does not apply and it would be erroneous for the court to charge on the unsupported lesser degree. State v. Gray, 58 N.C. App. 102, 293 S.E.2d 274, cert. denied, 306 N.C. 746, 295 S.E.2d 482 (1982).

But Such Error Not Prejudicial. - Error committed by the court in submitting the question of defendant's guilt of a lesser degree of the offense charged cannot be prejudicial to defendant. State v. Chase, 231 N.C. 589, 58 S.E.2d 364 (1950).

In a prosecution for armed robbery, defendant was not prejudiced by error, if any, in the trial court's submission to the jury of the lesser included offense of common-law robbery. State v. Mitchell, 48 N.C. App. 680, 270 S.E.2d 117 (1980).

Instruction as to Lesser Offense Absent Evidence. - If there is evidence of self-defense and no evidence of involuntary manslaughter, it is prejudicial error to submit a charge of involuntary manslaughter in a trial for second-degree murder. State v. Brooks, 46 N.C. App. 833, 266 S.E.2d 3 (1980).

Instructions as to Lesser Degree May Invite Compromise Verdict. - Upon a trial under an indictment for first-degree burglary, there being no announcement by the solicitor (now district attorney) of his intent to seek a milder verdict, the prosecuting witness testified that the defendant broke and entered her dwelling house in the nighttime and assaulted and raped her therein and the defense is alibi, to instruct the jury that it might return a verdict of second-degree burglary is simply to invite a compromise verdict. State v. Allen, 279 N.C. 115, 181 S.E.2d 453 (1971), overruled on other grounds, State v. Hickey, 317 N.C. 457, 346 S.E.2d 646 (1986).

III. LESSER AND INCLUDED OFFENSES.

.

Crime of accessory after the fact is not included in the charge of the principal crime. State v. Jones, 254 N.C. 450, 119 S.E.2d 213 (1961), commented on in 41 N.C.L. Rev. 118 (1962).

An indictment charging a completed offense is sufficient to support a conviction for attempt to commit the crime charged. This statute applies even though the completed crime and the attempt are not in the same statute. State v. Slade, 81 N.C. App. 303, 343 S.E.2d 571, cert. denied and appeal dismissed, 318 N.C. 419, 349 S.E.2d 604 (1986); State v. Bennett, 132 N.C. App. 187, 510 S.E.2d 698 (1999).

Indictment charging defendant with the completed offense of giving a controlled substance to an inmate was sufficient to enable him to adequately prepare for trial and to protect him from being twice put in jeopardy for the same offense, so as to support his conviction of attempt to give a controlled substance to an inmate. State v. Slade, 81 N.C. App. 303, 343 S.E.2d 571, cert. denied and appeal dismissed, 318 N.C. 419, 349 S.E.2d 604 (1986).

Indictment for statutory sexual offense was sufficient to support defendant's conviction for attempted statutory sexual offense. State v. Smith, 180 N.C. App. 86, 636 S.E.2d 267 (2006).

When an appellate court held insufficient evidence supported defendant's second-degree kidnapping conviction, it was error not to consider if defendant committed attempted second-degree kidnapping because (1) that was the North Carolina Supreme Court's practice, and (2) sufficient evidence showed defendant committed that crime. State v. Stokes, 367 N.C. 474, 756 S.E.2d 32 (2014).

Sufficiency of Indictment. - As a result of the fact that an indictment would support a conviction of the crime charged therein or of a less degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a less degree of the same crime, defendant's conviction for the attempted manufacture of marijuana rested upon the indictment returned against defendant for the purpose of charging defendant with manufacturing marijuana. State v. Lofton, 372 N.C. 216, 827 S.E.2d 88 (2019).

Murder. - In a prosecution for murder, where the evidence raises a question as to whether or not the killing was intentional, this section requires that the question of the defendant's guilt of manslaughter be submitted to the jury with proper instructions. State v. McNeill, 229 N.C. 377, 49 S.E.2d 733 (1948).

Where there is evidence to support a charge of murder and evidence to support the defendant's plea of homicide by misadventure, and also evidence of manslaughter, this section requires that the less degree of the same crime be submitted to the jury with proper instructions. State v. Childress, 228 N.C. 208, 45 S.E.2d 42 (1947).

Where the evidence in a first-degree murder prosecution is susceptible to the interpretation that defendant killed in self-defense, the court must submit the question of defendant's guilt of manslaughter. State v. Holloway, 7 N.C. App. 147, 171 S.E.2d 475 (1970).

Where the original indictment charging defendant with attempted first-degree murder was constitutionally and statutorily sufficient to provide jurisdiction, allege attempted voluntary manslaughter, and was not fatally defective, no manifest necessity existed to declare a mistrial over defendant's objections, the State was barred from re-indicting defendant on attempted murder or manslaughter and the trial court erred by denying defendant's motion to dismiss the subsequent indictment. Therefore, defendant's double jeopardy rights were violated by his subsequent indictment, prosecution, trial, and conviction of attempted first-degree murder. State v. Schalow, 251 N.C. App. 334, 795 S.E.2d 567 (2016).

Rape. - An indictment for rape includes an assault with intent to commit rape under former G.S. 14-22. State v. Green, 246 N.C. 717, 100 S.E.2d 52 (1957); State v. Birckhead, 256 N.C. 494, 124 S.E.2d 838 (1962).

Rape of Child Under Age 12. - The offense of assault on a female by a male over the age of 18, G.S. 14-33(b)(2), is not, as a matter of law, a lesser included offense of first-degree rape of a child of the age of 12 or less, under G.S. 14-27.2(a)(1). State v. Weaver, 306 N.C. 629, 295 S.E.2d 375 (1982).

The offense of assaulting a child under the age of 12, G.S. 14-33(b)(3), is not, as a matter of law, a lesser included offense of first-degree rape of a child of the age of 12 or less, under G.S. 14-27.2(a)(1). State v. Weaver, 306 N.C. 629, 295 S.E.2d 375 (1982).

The offense of taking indecent liberties with a child under the age of 16, G.S. 14-202.1, is not, as a matter of law, a lesser included offense of first-degree rape of a child of the age of 12 or less, under G.S. 14-27.2(a)(1). State v. Weaver, 306 N.C. 629, 295 S.E.2d 375 (1982), overruling State v. Shaw, 293 N.C. 616, 239 S.E.2d 439 (1977).

Larceny Pursuant to Breaking or Entering. - While it is error for the court to permit the jury to convict based on some abstract theory not supported by the bill of indictment, an indictment charging defendant with larceny pursuant to a burglary was sufficient to uphold defendant's conviction for larceny pursuant to a breaking or entering, as felonious breaking or entering is a lesser degree of the offense of second degree burglary, and this section provides that upon the trial of any indictment the prisoner may be convicted of the crime charged therein or of a lesser degree of the same crime. State v. McCoy, 79 N.C. App. 273, 339 S.E.2d 419 (1986).

Felony Murder While Discharging Firearm into Occupied Building. - In felony murder trial for murder committed during the act of discharging a firearm into an occupied building, a felony under G.S. 14-34.1, where defendant's sole and unequivocal defense was that he was nowhere near the area on the night in question, an instruction on the offense of involuntary manslaughter was not warranted by the evidence. State v. Brewer, 325 N.C. 550, 386 S.E.2d 569 (1989), cert. denied, 495 U.S. 951, 110 S. Ct. 2215, 109 L. Ed. 2d 541 (1990).

Assault with Intent to Commit Rape. - Where the evidence was sufficient to carry the case to the jury upon the charge of assault with intent to commit rape under former G.S. 14-22 but the jury returned a verdict of guilty of an assault upon a female, the defendant being a male person over 18 years of age, such verdict was authorized by this section. State v. Morgan, 225 N.C. 549, 35 S.E.2d 621 (1945).

Crimes Against Nature. - In a prosecution for the crime against nature, the accused may be convicted of the offense charged therein or the attempt to commit the offense. State v. Harward, 264 N.C. 746, 142 S.E.2d 691 (1965).

Sodomy. - An assault upon a woman is not a less degree of the crime of sodomy. State v. Jernigan, 255 N.C. 732, 122 S.E.2d 711 (1961).

Assault with a Deadly Weapon. - Where a warrant charges a criminal assault with a deadly weapon, specifying the weapon, the jury is empowered to convict of simple assault, a less degree of the same crime, where the evidence warrants the verdict. State v. Gooding, 251 N.C. 175, 110 S.E.2d 865 (1959).

Assault with a deadly weapon is an essential element of the felony created and defined by G.S. 14-32, being an included less degree of the same crime. State v. Weaver, 264 N.C. 681, 142 S.E.2d 633 (1965).

Assault with a Deadly Weapon with Intent to Kill. - In prosecution for assault with a deadly weapon with intent to kill, the court's instruction that the jury might find defendant guilty of a less degree of the crime, including assault with a deadly weapon, if they so found beyond a reasonable doubt, is without error. State v. Elmore, 212 N.C. 531, 193 S.E. 713 (1937); State v. Anderson, 230 N.C. 54, 51 S.E.2d 895 (1949).

An indictment sufficiently charging defendant with assault with a deadly weapon, to wit, a pistol, with intent to kill and inflicting serious injury not resulting in death, includes the offense of assault with a deadly weapon. State v. Caldwell, 269 N.C. 521, 153 S.E.2d 34 (1967).

Aggravated Assault. - Simple assault is a lesser degree of the crime of aggravated assault. State v. Jeffries, 3 N.C. App. 218, 164 S.E.2d 398 (1968).

Burglary in the First Degree. - In a prosecution for burglary in the first degree, it is permissible for the jury to convict the defendant of an attempt to commit burglary in the second degree. State v. Surles, 230 N.C. 272, 52 S.E.2d 880 (1949).

A violation of G.S. 14-54 is a less degree of the felony of burglary in the first degree. State v. Fikes, 270 N.C. 780, 155 S.E.2d 277 (1967); State v. Gaston, 4 N.C. App. 575, 167 S.E.2d 510 (1969).

Where the bill of indictment returned by the grand jury charged all elements of burglary in the first degree, the bill of indictment would have supported a verdict of guilty of either first-degree burglary or second-degree burglary as the evidence might warrant. State v. Allen, 279 N.C. 115, 181 S.E.2d 453 (1971), overruled on other grounds, State v. Hickey, 317 N.C. 451, 346 S.E.2d 646 (1986).

Breaking and Entering. - Any person who breaks or enters any building described in G.S. 14-54, with intent to commit any felony or larceny therein, is guilty of a felony. A wrongful breaking or entering into such building, without the intent to commit any felony therein, is a misdemeanor, a lesser included offense within the meaning of this section. State v. Dozier, 19 N.C. App. 740, 200 S.E.2d 348 (1973), cert. denied, 284 N.C. 618, 201 S.E.2d 690 (1974).

Arson. - The felony created by G.S. 14-67 is a lesser included offense of the crime of arson. State v. Arnold, 285 N.C. 751, 208 S.E.2d 646 (1974).

Armed Robbery. - An indictment for armed robbery under G.S. 14-87 will support a verdict of guilty of common-law robbery. State v. Jackson, 6 N.C. App. 406, 170 S.E.2d 137 (1969).

In a prosecution for robbery with firearms, an accused may be acquitted of the major charge and convicted of an included or lesser offense, such as common-law robbery, or assault, or larceny from the person, or simple larceny, if a verdict for the included or lesser offense is supported by allegations of the indictment and by evidence on the trial. State v. McLean, 2 N.C. App. 460, 163 S.E.2d 125 (1968); State v. Black, 286 N.C. 191, 209 S.E.2d 458 (1974).

Defendant's conviction of armed robbery, pursuant to G.S. 14-87, had to be reversed because defendant used only his hands in the robbery and, thus, the evidence was not sufficient to support the conviction of armed robbery; however, pursuant to G.S. 15-170, there was sufficient evidence for a conviction of the lesser included offense of common law robbery, as defendant stole a car from the victim with the use of force. State v. Staten, 172 N.C. App. 673, 616 S.E.2d 650 (2005), cert. denied, 547 U.S. 1080, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006).

Robbery. - Where the evidence was not sufficient to make out a case of common-law robbery, the court properly submitted the case on larceny from the person. State v. Kirk, 17 N.C. App. 68, 193 S.E.2d 377 (1972).

Larceny from the person is a lesser included offense of common-law robbery, and an indictment for common-law robbery will support a conviction for larceny from the person. State v. Young, 54 N.C. App. 366, 283 S.E.2d 812 (1981), aff'd, 305 N.C. 391, 289 S.E.2d 374 (1982).

Testimony of defendants in a prosecution for robbery that they took the pistol from prosecuting witness to prevent him from harming them or some other person, requires the court to submit the question of each defendant's guilt of simple assault to the jury as a lesser offense included in the crime charged, since such verdict would be justified in the event the jury should find that defendants took the pistol without intent to steal it, but were not warranted in doing so on the principle of self-protection. State v. Lunsford, 229 N.C. 229, 49 S.E.2d 410 (1948).

Misdemeanor of larceny is a less degree of the felony of larceny within the meaning of this section. State v. Cooper, 256 N.C. 372, 124 S.E.2d 91 (1962); State v. Summers, 263 N.C. 517, 139 S.E.2d 627 (1965); State v. Respass, 27 N.C. App. 137, 218 S.E.2d 227, appeal dismissed, 288 N.C. 733, 220 S.E.2d 352 (1975); State v. Daniels, 51 N.C. App. 294, 276 S.E.2d 738 (1981).

Larceny from the Person. - Assault is not a less degree of the crime of larceny from the person. State v. Acrey, 262 N.C. 90, 136 S.E.2d 201 (1964).

Possession of Marijuana. - To prove the offense of possession of over one ounce of marijuana, the State must show possession and that the amount possessed was greater than one ounce. To prove the offense of possession with intent to sell or deliver marijuana, the State must show possession of any amount of marijuana and that the person possessing the substance intended to sell or deliver it. Thus, the two crimes each contain one element that is not necessary for proof of the other crime. One is not a lesser included offense of the other. State v. Gooch, 58 N.C. App. 582, 294 S.E.2d 13, rev'd on other grounds, 307 N.C. 253, 297 S.E.2d 599 (1982).

Barratry. - An attempt to commit barratry is an offense in this State and a defendant may be convicted of an attempt to commit the offense upon an indictment charging the common-law offense of barratry. State v. Batson, 220 N.C. 411, 17 S.E.2d 511, 139 A.L.R. 614 (1941).

§ 15-171: Repealed by Session Laws 1953, c. 100.

I. GENERAL CONSIDERATION.

Necessity of Moving for Judgment or Dismissal at Trial. - Although G.S. 15A-1446(d)(5) allows a defendant to appeal on insufficiency of evidence grounds, notwithstanding the fact that no objection, exception or motion was made at trial, this statute is negated by N.C.R.A.P., Rule 10(b)(3), which states that a defendant may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action or for judgment as in case of nonsuit at trial. State v. Jordan, 321 N.C. 714, 365 S.E.2d 617 (1988).

Means of Raising Objection That Evidence Is Insufficient for Jury. - Objection that the evidence is not sufficient to carry the case to the jury must be raised by motion to nonsuit under this section, or by prayer for instructions to the jury, and may not be raised after verdict by motion for new trial or motion in arrest of judgment. State v. Gaston, 236 N.C. 499, 73 S.E.2d 311 (1952); State v. Wiggs, 269 N.C. 507, 153 S.E.2d 84 (1967).

The objection that the evidence is not sufficient to carry the case to the jury must be raised during the trial by a motion for a compulsory nonsuit under this section or by a prayer for instruction to the jury. State v. Glover, 270 N.C. 319, 154 S.E.2d 305 (1967); State v. Spencer, 281 N.C. 121, 187 S.E.2d 779 (1972).

In a criminal case the proper motion to test the sufficiency of the State's evidence to carry the case to the jury is a motion to dismiss the action or a motion for judgment as in case of nonsuit. State v. Dickens, 278 N.C. 537, 180 S.E.2d 844 (1971); State v. Everette, 284 N.C. 67, 199 S.E.2d 409 (1973); State v. Holton, 284 N.C. 391, 200 S.E.2d 612 (1973); State v. Chavis, 30 N.C. App. 75, 226 S.E.2d 389, cert. denied, 290 N.C. 778, 229 S.E.2d 33 (1976).

A motion to dismiss under G.S. 15A-1227 is substantively identical to a motion for nonsuit under this section. State v. Cameron, 83 N.C. App. 69, 349 S.E.2d 327 (1986).

Motion for Nonsuit Challenges Sufficiency of Evidence. - A motion for judgment as in case of nonsuit challenges the sufficiency of the State's evidence to warrant its submission to the jury and to support a verdict of guilty of the criminal offense charged in the warrant or indictment on which the prosecution is based. State v. Vaughan, 268 N.C. 105, 150 S.E.2d 31 (1966).

Defendant's motion for nonsuit at the close of all the evidence draws into question the sufficiency of all of the evidence to go to the jury. State v. Stewart, 292 N.C. 219, 232 S.E.2d 443 (1977).

Defendant's later motion for nonsuit, made at the close of all the evidence, draws into question the sufficiency of all the evidence to go to the jury. State v. Barrow, 292 N.C. 227, 232 S.E.2d 693 (1977).

Whether correct or erroneous, a judgment of nonsuit has the force and effect of a verdict of "not guilty." State v. Ballard, 280 N.C. 479, 186 S.E.2d 372 (1972).

Where indictments contain two separate charges and State takes a voluntary nonsuit upon the first count, defendant's contention that the nonsuit established his innocence of acts charged under that count which also constituted essential elements of the offense charged in the second count must be presented by a plea of former jeopardy or former acquittal, and not by motion for judgment as of nonsuit, under this section, and the failure of a plea of former jeopardy amounts to a waiver of his rights in the premises. State v. Baldwin, 226 N.C. 295, 37 S.E.2d 898 (1946).

Submission of Lesser Degree upon Nonsuit on Offense Charged. - An instruction that the court grants a nonsuit on the offense charged in the indictment, followed by submission of the case on the question of defendants' guilt of a lesser degree of the offense charged, does not amount to a nonsuit on the indictment. State v. Matthews, 231 N.C. 617, 58 S.E.2d 625, cert. denied, 340 U.S. 838, 71 S. Ct. 24, 95 L. Ed. 615 (1950).

Effect of Judgment of Nonsuit on Subsequent Prosecution. - The granting of a motion under this section for judgment of nonsuit, or verdict of not guilty in a criminal prosecution charging defendant with willful neglect or refusal to support and maintain his illegitimate child, does not constitute an adjudication on the issue of paternity, and will not support a plea of former acquittal in a subsequent prosecution under G.S. 49-2. State v. Robinson, 236 N.C. 408, 72 S.E.2d 857 (1952).

Raising Question of Variance. - The defendant in a criminal action may raise the question of a variance between the indictment and the proof by a motion to dismiss the prosecution as in case of nonsuit. This is clearly set forth in State v. Gibson, 170 N.C. 697, 86 S.E. 774 (1915); State v. Harbert, 185 N.C. 760, 118 S.E. 6 (1923); State v. Harris, 195 N.C. 306, 141 S.E. 883 (1928); State v. Grace, 196 N.C. 280, 145 S.E. 399 (1928); State v. Hicks, 233 N.C. 511, 64 S.E.2d 871, cert. denied, 342 U.S. 831, 72 S. Ct. 56, 96 L. Ed. 629 (1951); State v. Overman, 257 N.C. 464, 125 S.E.2d 920 (1962); State v. Bell, 270 N.C. 25, 153 S.E.2d 741 (1967).

Motion Sustained Where Variance Fatal. - Where there is a fatal variance between the indictment and the proof, it is proper to sustain the demurrer to the evidence, or to dismiss the action as in case of nonsuit. State v. Franklin, 204 N.C. 157, 167 S.E. 569 (1933). See also State v. Martin, 199 N.C. 636, 155 S.E. 447 (1930).

Even in child sexual abuse cases, a variance as to time becomes material and of the essence when it deprives a defendant of an opportunity to adequately present his defense; while time variances do not always prejudice a defendant so as to require dismissal, even when an alibi is involved, when the defendant relies on the date set forth in the indictment, but the State's evidence substantially varies to the prejudice of defendant's alibi defense, the interests of justice and fair play require that the defendant's motion for dismissal be granted. In a child abuse case where the State's proof failed to show that alleged abuse occurred on the dates in the indictment, where the defendant had relied on those dates in building his alibi defense, and where all the evidence presented at trial went to sexual encounters over a period of years that ended a significant period of time prior to the dates listed in the indictment, defendant's motion to dismiss should have been granted, and defendant's conviction was reversed on appeal. State v. Custis, 162 N.C. App. 715, 591 S.E.2d 895 (2004).

Applied in State v. Tankersley, 172 N.C. 955, 90 S.E. 781 (1916); State v. Jenkins, 182 N.C. 818, 108 S.E. 767 (1921); State v. Fulcher, 184 N.C. 663, 113 S.E. 769 (1922); State v. Williams, 187 N.C. 492, 122 S.E. 13 (1924); State v. Sigmon, 190 N.C. 684, 130 S.E. 854 (1925); State v. Pace, 192 N.C. 780, 136 S.E. 11 (1926); State v. Everett, 194 N.C. 442, 140 S.E. 22 (1927); State v. Leonard, 195 N.C. 242, 141 S.E. 736 (1928); State v. Swinson, 196 N.C. 100, 144 S.E. 555 (1928); State v. McLeod, 196 N.C. 542, 146 S.E. 409 (1929); State v. McLamb, 203 N.C. 442, 166 S.E. 507 (1932); State v. Brown, 204 N.C. 392, 168 S.E. 532 (1933); State v. Fogleman, 204 N.C. 401, 168 S.E. 536 (1933); State v. Anthony, 206 N.C. 120, 173 S.E. 47 (1934); State v. Bittings, 206 N.C. 798, 175 S.E. 299 (1934); State v. Yates, 208 N.C. 194, 179 S.E. 756 (1935); State v. Sims, 208 N.C. 459, 181 S.E. 269 (1935); State v. White, 208 N.C. 537, 181 S.E. 558 (1935); State v. Landin, 209 N.C. 20, 182 S.E. 689 (1935); State v. Webber, 210 N.C. 137, 185 S.E. 659 (1936); State v. Creech, 210 N.C. 700, 188 S.E. 316 (1936); State v. Smith, 211 N.C. 93, 189 S.E. 175 (1937); State v. Ormond, 211 N.C. 437, 191 S.E. 22 (1937); State v. Callett, 211 N.C. 563, 191 S.E. 27 (1937); State v. McDonald, 211 N.C. 672, 191 S.E. 733 (1937); State v. Brewington, 212 N.C. 244, 193 S.E. 24 (1937); State v. Delk, 212 N.C. 631, 194 S.E. 94 (1937); State v. Lockey, 214 N.C. 525, 199 S.E. 715 (1938); State v. Myers, 214 N.C. 652, 200 S.E. 443 (1939); State v. Goodman, 220 N.C. 250, 17 S.E.2d 8 (1941); State v. Johnson, 220 N.C. 252, 17 S.E.2d 7 (1941); State v. Jones, 222 N.C. 37, 21 S.E.2d 812 (1942); State v. Reynolds, 222 N.C. 40, 21 S.E.2d 813 (1942); State v. King, 222 N.C. 239, 22 S.E.2d 445 (1942); State v. Todd, 222 N.C. 346, 23 S.E.2d 47 (1942); State v. Forte, 222 N.C. 537, 23 S.E.2d 842 (1943); State v. Vincent, 222 N.C. 543, 23 S.E.2d 832 (1943); State v. Smith, 223 N.C. 199, 25 S.E.2d 619 (1943); State v. Vicks, 223 N.C. 384, 26 S.E.2d 873 (1943); State v. Dilliard, 223 N.C. 446, 27 S.E.2d 85 (1943); State v. Cameron, 223 N.C. 449, 27 S.E.2d 81 (1943); State v. Suddreth, 223 N.C. 610, 27 S.E.2d 623 (1943); State v. Oxendine, 223 N.C. 659, 27 S.E.2d 814 (1943); State v. Dill, 224 N.C. 57, 29 S.E.2d 145 (1944); State v. Nunley, 224 N.C. 96, 29 S.E.2d 17 (1944); State v. Gay, 224 N.C. 141, 29 S.E.2d 458 (1944); State v. Gordon, 224 N.C. 304, 30 S.E.2d 43 (1944); State v. King, 224 N.C. 329, 30 S.E.2d 230 (1944); State v. Rivers, 224 N.C. 419, 30 S.E.2d 322 (1944); State v. Parker, 224 N.C. 524, 31 S.E.2d 531 (1944); State v. Stewart, 224 N.C. 528, 31 S.E.2d 534 (1944); State v. Edwards, 224 N.C. 577, 31 S.E.2d 762 (1944); State v. Biggs, 224 N.C. 722, 32 S.E.2d 352 (1944); State v. Kirkman, 224 N.C. 778, 32 S.E.2d 328 (1944); State v. Oxendine, 224 N.C. 825, 32 S.E.2d 648 (1945); State v. Stone, 224 N.C.
848, 32 S.E.2d 651 (1945); State v. Cody, 225 N.C. 38, 33 S.E.2d 71 (1945); State v. Hill, 225 N.C. 74, 33 S.E.2d 470 (1945); State v. Matheson, 225 N.C. 109, 33 S.E.2d 590 (1945); State v. Williams, 225 N.C. 182, 33 S.E.2d 880 (1945); State v. Heglar, 225 N.C. 220, 34 S.E.2d 76 (1945); State v. Murdock, 225 N.C. 224, 34 S.E.2d 69 (1945); State v. Peterson, 225 N.C. 540, 35 S.E.2d 645 (1945); State v. Stutts, 225 N.C. 647, 35 S.E.2d 881 (1945); State v. Robinson, 226 N.C. 95, 36 S.E.2d 655 (1946); State v. Malpass, 226 N.C. 403, 38 S.E.2d 156 (1946); State v. Perry, 226 N.C. 530, 39 S.E.2d 460 (1946); State v. Johnson, 227 N.C. 587, 42 S.E.2d 685 (1947); State v. Weaver, 228 N.C. 39, 44 S.E.2d 360 (1947); State v. Harvey, 228 N.C. 62, 44 S.E.2d 472 (1947); State v. Brooks, 228 N.C. 68, 44 S.E.2d 482 (1947); State v. Coffey, 228 N.C. 119, 44 S.E.2d 886 (1947); State v. Little, 228 N.C. 417, 45 S.E.2d 542 (1947); State v. Ray, 229 N.C. 40, 47 S.E.2d 494 (1948); State v. Minton, 228 N.C. 518, 46 S.E.2d 296 (1948); State v. Wooten, 228 N.C. 628, 46 S.E.2d 868 (1948); State v. Palmer, 230 N.C. 205, 52 S.E.2d 908 (1949); State v. Speller, 230 N.C. 345, 53 S.E.2d 294 (1949); State v. Baker, 231 N.C. 136, 56 S.E.2d 424 (1949); State v. Cranford, 231 N.C. 211, 56 S.E.2d 423 (1949); State v. Hill, 233 N.C. 61, 62 S.E.2d 532 (1950); State v. Goins, 233 N.C. 460, 64 S.E.2d 289 (1951); State v. Hicks, 233 N.C. 511, 64 S.E.2d 871 (1951); State v. Fuqua, 234 N.C. 168, 66 S.E.2d 667 (1951); State v. Holland, 234 N.C. 354, 67 S.E.2d 272 (1951); State v. Minton, 234 N.C. 716, 68 S.E.2d 844 (1951); State v. McLamb, 235 N.C. 251, 69 S.E.2d 537 (1952); State v. Birchfield, 235 N.C. 410, 70 S.E.2d 5 (1952); State v. Bryant, 235 N.C. 420, 70 S.E.2d 186 (1952); State v. Reeves, 235 N.C. 427, 70 S.E.2d 9 (1952); State v. Murphy, 235 N.C. 503, 70 S.E.2d 498 (1952); State v. Needham, 235 N.C. 555, 71 S.E.2d 29 (1952); State v. Sears, 235 N.C. 623, 70 S.E.2d 907 (1952); State v. Wood, 235 N.C. 636, 70 S.E.2d 665 (1952); State v. Griffin, 236 N.C. 219, 72 S.E.2d 427 (1952); State v. Bryant, 236 N.C. 745, 73 S.E.2d 791 (1953); State v. Ham, 238 N.C. 94, 76 S.E.2d 346 (1953); State v. Cranfield, 238 N.C. 110, 76 S.E.2d 353 (1953); State v. Myers, 240 N.C. 462, 82 S.E.2d 213 (1954); State v. Simpson, 244 N.C. 325, 93 S.E.2d 425 (1956); State v. Stephens, 244 N.C. 380, 93 S.E.2d 431 (1956); State v. Bass, 249 N.C. 209, 105 S.E.2d 645 (1958); State v. Glenn, 251 N.C. 156, 110 S.E.2d 791 (1959); State v. Walker, 251 N.C. 465, 112 S.E.2d 61 (1960); State v. Paschal, 253 N.C. 795, 117 S.E.2d 749 (1961); State v. Bailey, 261 N.C. 783, 136 S.E.2d 37 (1964); State v. Duncan, 264 N.C. 123, 141 S.E.2d 23 (1965); State v. Hill, 266 N.C. 103, 145 S.E.2d 346 (1965); State v. Burgess, 266 N.C. 363, 145 S.E.2d 905 (1966); State v. Frazier, 268 N.C. 249, 150 S.E.2d 431 (1966); State v. Chavis, 270
N.C. 306, 154 S.E.2d 340 (1967); State v. Canady, 8 N.C. App. 320, 174 S.E.2d 140 (1970); State v. Stevens, 9 N.C. App. 665, 177 S.E.2d 339 (1970); State v. Allred, 279 N.C. 398, 183 S.E.2d 553 (1971); State v. Jones, 280 N.C. 60, 184 S.E.2d 862 (1971); State v. Pitts, 10 N.C. App. 355, 178 S.E.2d 632 (1971); State v. Thompson, 280 N.C. 202, 185 S.E.2d 666 (1972); State v. Spillars, 280 N.C. 341, 185 S.E.2d 881 (1972); State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972); State v. Fountain, 282 N.C. 58, 191 S.E.2d 674 (1972); State v. Davis, 282 N.C. 107, 191 S.E.2d 664 (1972); State v. Barr, 15 N.C. App. 116, 189 S.E.2d 638 (1972); State v. Alexander, 16 N.C. App. 95, 191 S.E.2d 395 (1972); State v. Reynolds, 18 N.C. App. 10, 195 S.E.2d 581 (1973); State v. Griffin, 18 N.C. App. 14, 195 S.E.2d 569 (1973); State v. Wright, 18 N.C. App. 76, 195 S.E.2d 801 (1973); State v. Foust, 18 N.C. App. 138, 196 S.E.2d 375 (1973); State v. Rankin, 18 N.C. App. 252, 196 S.E.2d 621 (1973); State v. Hines, 286 N.C. 377, 211 S.E.2d 201 (1975); State v. Carter, 289 N.C. 35, 220 S.E.2d 313 (1975); State v. Dull, 289 N.C. 55, 220 S.E.2d 344 (1975); State v. Mull, 24 N.C. App. 502, 211 S.E.2d 515 (1975); State v. Burch, 24 N.C. App. 514, 211 S.E.2d 511 (1975); State v. Graham, 24 N.C. App. 591, 211 S.E.2d 805 (1975); State v. Wallace, 25 N.C. App. 360, 213 S.E.2d 420 (1975); State v. Bush, 289 N.C. 159, 221 S.E.2d 333 (1976); State v. Sellers, 289 N.C. 268, 221 S.E.2d 264 (1976); State v. Hunt, 289 N.C. 403, 222 S.E.2d 234 (1976); State v. McCall, 289 N.C. 512, 223 S.E.2d 303 (1976); State v. Warren, 289 N.C. 551, 223 S.E.2d 317 (1976); State v. Atwood, 290 N.C. 266, 225 S.E.2d 543 (1976); State v. McMorris, 290 N.C. 286, 225 S.E.2d 553 (1976); State v. Crawford, 29 N.C. App. 117, 223 S.E.2d 534 (1976); State v. Millsaps, 29 N.C. App. 176, 223 S.E.2d 559 (1976); State v. Williams, 31 N.C. App. 588, 229 S.E.2d 839 (1976); State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1977); State v. Yancey, 291 N.C. 656, 231 S.E.2d 637 (1977); State v. Manuel, 291 N.C. 705, 231 S.E.2d 588 (1977); State v. Tilley, 292 N.C. 132, 232 S.E.2d 433 (1977); State v. McKenzie, 292 N.C. 170, 232 S.E.2d 424 (1977); State v. Stewart, 292 N.C. 219, 232 S.E.2d 443 (1977); State v. Barrow, 292 N.C. 227, 232 S.E.2d 693 (1977); State v. Warren, 292 N.C. 235, 232 S.E.2d 419 (1977); State v. Siler, 292 N.C. 543, 234 S.E.2d 733 (1977); State v. Hill, 32 N.C. App. 261, 231 S.E.2d 682 (1977); State v. Lilly, 32 N.C. App. 467, 232 S.E.2d 495 (1977); State v. Hales, 32 N.C. App. 729, 233 S.E.2d 601 (1977); State v. Correll, 38 N.C. App. 451, 248 S.E.2d 451 (1978); State v. Rhyne, 39 N.C. App. 319, 250 S.E.2d 102 (1979); State v. Hough, 299 N.C. 245, 262 S.E.2d 268 (1980); State v. Horton, 299 N.C. 690, 263 S.E.2d 745 (1980); State v. Harris, 47 N.C. App. 121, 266 S.E.2d 735 (1980); State v. Bailey, 49 N.C. App. 377, 271 S.E.2d 752 (1980); State v. Summitt,
301 N.C. 591, 273 S.E.2d 425 (1981); State v. Fletcher, 301 N.C. 709, 272 S.E.2d 859 (1981); State v. Hammonds, 301 N.C. 713, 272 S.E.2d 856 (1981); State v. Wright, 302 N.C. 122, 273 S.E.2d 699 (1981); State v. Harren, 302 N.C. 142, 273 S.E.2d 694 (1981); State v. Spicer, 50 N.C. App. 214, 273 S.E.2d 521 (1981); State v. Wagner, 50 N.C. App. 286, 273 S.E.2d 33 (1981); State v. Murrell, 54 N.C. App. 342, 283 S.E.2d 173 (1981); State v. Calloway, 305 N.C. 747, 291 S.E.2d 622 (1982); State v. Pratt, 306 N.C. 673, 295 S.E.2d 462 (1982); State v. Long, 58 N.C. App. 467, 294 S.E.2d 4 (1982); State v. Elliott, 69 N.C. App. 89, 316 S.E.2d 632 (1984); State v. Noland, 312 N.C. 1, 320 S.E.2d 642 (1984); State v. Bullard, 312 N.C. 129, 322 S.E.2d 370 (1984); State v. Upright, 72 N.C. App. 94, 323 S.E.2d 479 (1984); State v. Wilson, 73 N.C. App. 398, 326 S.E.2d 360 (1985); State v. Blankenship, 89 N.C. App. 465, 366 S.E.2d 509 (1988); State v. Woodard, 324 N.C. 227, 376 S.E.2d 753 (1989); State v. Britt, 93 N.C. App. 126, 377 S.E.2d 79 (1989); State v. Purdie, 93 N.C. App. 269, 377 S.E.2d 789 (1989); State v. Ray, 97 N.C. App. 621, 389 S.E.2d 422 (1990); State v. Vanhoy, 343 N.C. 476, 471 S.E.2d 404 (1996), overruled on other grounds, State v. Gaines, 345 N.C. 647, 483 S.E.2d 396 (1997); State v. Jones, 140 N.C. App. 691, 538 S.E.2d 228 (2000); State v. Shepherd, 163 N.C. App. 646, 594 S.E.2d 439 (2004); State v. Edwards, 185 N.C. App. 701, 649 S.E.2d 646, review denied, 362 N.C. 89, 656 S.E.2d 281 (2007).

Cited in State v. Eubanks, 194 N.C. 319, 139 S.E. 451 (1927); State v. Pridgen, 194 N.C. 795, 139 S.E. 601 (1927); State v. Mickle, 194 N.C. 808, 140 S.E. 150 (1927); State v. Dowell, 195 N.C. 523, 143 S.E. 13 (1928); State v. Golden, 196 N.C. 246, 145 S.E. 236 (1928); State v. Weston, 197 N.C. 25, 147 S.E. 618 (1929); State v. McKinnon, 197 N.C. 576, 150 S.E. 25 (1929); State v. Hickey, 198 N.C. 45, 150 S.E. 615 (1929); State v. Burleson, 198 N.C. 61, 150 S.E. 628 (1929); State v. Wrenn, 198 N.C. 260, 151 S.E. 261 (1930); State v. McLeod, 198 N.C. 649, 152 S.E. 895 (1930); State v. Spivey, 198 N.C. 655, 153 S.E. 255 (1930); State v. Ritter, 199 N.C. 116, 154 S.E. 62 (1930); State v. Beal, 199 N.C. 278, 154 S.E. 604 (1930); State v. Johnson, 199 N.C. 429, 154 S.E. 730 (1930); State v. Baker, 199 N.C. 578, 155 S.E. 249 (1930); State v. Sizemore, 199 N.C. 687, 155 S.E. 724 (1930); State v. Fletcher, 199 N.C. 815, 155 S.E. 927 (1930); State v. Wilson, 205 N.C. 376, 171 S.E. 338 (1933); State v. Davidson, 205 N.C. 735, 172 S.E. 489 (1934); State v. Mansfield, 207 N.C. 233, 176 S.E. 761 (1934); State v. Mozingo, 207 N.C. 247, 176 S.E. 582 (1934); State v. Newton, 207 N.C. 323, 177 S.E. 184 (1934); State v. Anderson, 208 N.C. 771, 182 S.E. 643 (1935); State v. Jones, 209 N.C. 49, 182 S.E. 699 (1935); State v. Camby, 209 N.C. 50, 182 S.E. 715 (1935); State v. Langley, 209 N.C. 178, 183 S.E. 526 (1936); State v. Hinson, 209 N.C. 187, 183 S.E. 397 (1936); State v. Lewis, 209 N.C. 191, 183 S.E. 357 (1936); State v. Oakley, 210 N.C. 206, 186 S.E. 244 (1936); State v. Gallman, 210 N.C. 288, 186 S.E. 236 (1936); State v. Evans, 211 N.C. 458, 190 S.E. 724 (1937); State v. Caldwell, 212 N.C. 484, 193 S.E. 716 (1937); State v. Perry, 212 N.C. 533, 193 S.E. 727 (1937); State v. Hanford, 212 N.C. 746, 194 S.E. 481 (1938); State v. Libby, 213 N.C. 662, 197 S.E. 154 (1938); State v. Epps, 213 N.C. 709, 197 S.E. 580 (1938); State v. Stiers, 214 N.C. 126, 198 S.E. 601 (1938); State v. Bowser, 214 N.C. 249, 199 S.E. 31 (1938); State v. Hawkins, 214 N.C. 326, 199 S.E. 284 (1938); State v. Jones, 215 N.C. 660, 2 S.E.2d 867 (1939); State v. Hudson, 218 N.C. 219, 10 S.E.2d 730 (1940); State v. Wilson, 218 N.C. 769, 12 S.E.2d 654 (1941); State v. Hunt, 223 N.C. 173, 25 S.E.2d 598 (1943); State v. Graham, 224 N.C. 351, 30 S.E.2d 154 (1944); State v. Ogle, 224 N.C. 468, 31 S.E.2d 444 (1944); State v. Curling, 225 N.C. 769, 35 S.E.2d 179 (1945); State v. Williams, 229 N.C. 348, 49 S.E.2d 617 (1948); State v. Tilley, 231 N.C. 734, 58 S.E.2d 720 (1950); State v. Lamm, 232 N.C. 402, 61 S.E.2d 188 (1950); State v. Lambe, 232 N.C. 570, 61 S.E.2d 608 (1950); State v. Buchanan, 233 N.C. 477, 64 S.E.2d 549 (1951); State v. Wilson, 234 N.C. 552, 67 S.E.2d 748 (1951); State v. Dunn, 245 N.C. 102, 95 S.E.2d 274 (1956); State v. Revis, 253 N.C. 50, 116 S.E.2d 171 (1960); State v. Faust, 254 N.C. 101, 118 S.E.2d 769 (1961); State v. Aldridge,
254 N.C. 297, 118 S.E.2d 766 (1961); State v. Carter, 254 N.C. 475, 119 S.E.2d 461 (1961); State v. Gough, 257 N.C. 348, 126 S.E.2d 118 (1962); State v. Thompson, 257 N.C. 452, 126 S.E.2d 58 (1962); State v. Jones, 264 N.C. 134, 141 S.E.2d 27 (1965); State v. Meadows, 272 N.C. 327, 158 S.E.2d 638 (1968); State v. Howard, 274 N.C. 186, 162 S.E.2d 495 (1968); State v. Conrad, 275 N.C. 342, 168 S.E.2d 39 (1969); State v. Collins, 5 N.C. App. 516, 168 S.E.2d 514 (1969); State v. Parker, 279 N.C. 168, 181 S.E.2d 432 (1971); State v. Williams, 13 N.C. App. 233, 185 S.E.2d 27 (1971); State v. Black, 14 N.C. App. 373, 188 S.E.2d 634 (1972); State v. Wiggins, 16 N.C. App. 527, 192 S.E.2d 680 (1972); State v. Luther, 285 N.C. 570, 206 S.E.2d 238 (1974); State v. Womble, 292 N.C. 455, 233 S.E.2d 534 (1977); State v. Hensley, 294 N.C. 231, 240 S.E.2d 332 (1978); State v. Adams, 298 N.C. 802, 260 S.E.2d 431 (1979); State v. Alston, 44 N.C. App. 72, 259 S.E.2d 767 (1979); State v. Brackett, 55 N.C. App. 410, 285 S.E.2d 852 (1982); State v. Lowery, 309 N.C. 763, 309 S.E.2d 232 (1983); State v. Nelson, 69 N.C. App. 455, 317 S.E.2d 70 (1984); State v. Ausley, 78 N.C. App. 791, 338 S.E.2d 547 (1986); State v. Spaugh, 321 N.C. 550, 364 S.E.2d 368 (1988); State v. Clark, 90 N.C. App. 489, 369 S.E.2d 607 (1988); In re Lucas, 94 N.C. App. 442, 380 S.E.2d 563 (1989); State v. Franklin, 327 N.C. 162, 393 S.E.2d 781 (1990); State v. Joe, 213 N.C. App. 148, 711 S.E.2d 842 (2011), vacated in part 365 N.C. 538,723 S.E.2d 339, 2012 N.C. LEXIS 268 (N.C. 2012); State v. Kirkwood, 229 N.C. App. 656, 747 S.E.2d 730, dismissed, 367 N.C. 277, 752 S.E.2d 487, 2013 N.C. LEXIS 1491 (2013); State v. Chamberlain, 232 N.C. App. 246, 753 S.E.2d 725 (2014).

II. OTHER MOTIONS COMPARED.

G.S. 15A-1227 Compared. - Both this section and G.S. 15A-1227 allow motions to dismiss to be made at the close of the State's evidence. However, they are not identical. This section provides that "If the defendant introduces evidence, he thereby waives any motion for dismissal or judgment as in case of nonsuit which he may have made prior to the introduction of his evidence and cannot urge such prior motion as ground for appeal." Although no such provision is contained in G.S. 15A-1227, its enactment did not create a new type of motion to challenge the sufficiency of the evidence. State v. Mendez, 42 N.C. App. 141, 256 S.E.2d 405 (1979).

A challenge to the sufficiency of the evidence to sustain a conviction is still properly made by either a motion for dismissal or a motion for judgment as in the case of nonsuit. Both motions were known to the law for many years prior to the enactment of G.S. 15A-1227. The motion for dismissal referred to in G.S. 15A-1227 is the same motion for dismissal referred to in this section. Therefore, there is but one motion for dismissal for insufficiency of the evidence to sustain a conviction, and that motion is governed by the provisions of both this section and G.S. 15A-1227. State v. Mendez, 42 N.C. App. 141, 256 S.E.2d 405 (1979).

Cases Under This Section Applicable to G.S. 15A-1227. - A motion for dismissal under G.S. 15A-1227 is identical to a motion to dismiss the action, or for judgment as in the case of nonsuit, under this section in this respect: both statutes allow counsel to make a motion challenging the sufficiency of the evidence at the close of the State's evidence or at the close of all the evidence. Hence, cases dealing with the sufficiency of the evidence to withstand the latter motion made under the older statute, this section, are applicable when ruling on motions made under the more recent statute, G.S. 15A-1227. State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982).

Motion to dismiss under G.S. 15A-1227(a)(1) for insufficiency of the evidence to go to the jury is tantamount to a motion for nonsuit under this section. State v. Bruce, 315 N.C. 273, 337 S.E.2d 510 (1985); State v. Griffin, 319 N.C. 429, 355 S.E.2d 474 (1987); State v. Stocks, 319 N.C. 437, 355 S.E.2d 492 (1987).

No Difference in Motions to Dismiss and for Judgment as in Case of Nonsuit. - As used in this section, there is no difference in legal significance between a motion "to dismiss the action" and a motion "for judgment as in case of nonsuit." State v. Cooper, 275 N.C. 283, 167 S.E.2d 266 (1969); State v. Everhart, 291 N.C. 700, 231 S.E.2d 604 (1977); State v. Lindsay, 45 N.C. App. 514, 263 S.E.2d 364 (1980).

A motion to dismiss will be treated the same as a motion for judgment of nonsuit. State v. Stewart, 292 N.C. 219, 232 S.E.2d 443 (1977).

Motion for directed verdict of not guilty treated as motion for judgment of nonsuit under this section. State v. Holton, 284 N.C. 391, 200 S.E.2d 612 (1973).

The motion for judgment of nonsuit and the motion for a directed verdict of not guilty have the same legal effect. State v. Williams, 286 N.C. 422, 212 S.E.2d 113 (1975); State v. Hunt, 289 N.C. 403, 222 S.E.2d 234, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976); State v. Hammonds, 290 N.C. 1, 224 S.E.2d 595 (1976).

And Test for Granting Them Is the Same. - The standard governing the granting or not of a motion as of nonsuit is the same with regard to a motion for a directed verdict. State v. Flannery, 31 N.C. App. 617, 230 S.E.2d 603 (1976).

The test of the sufficiency of the evidence to withstand motions for a directed verdict and for judgment of nonsuit is the same. State v. Hunt, 289 N.C. 403, 222 S.E.2d 234, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976).

Arrest of Judgment and Judgment of Nonsuit Compared. - An order for arrest of judgment is based upon the insufficiency of the indictment or other defect appearing on the face of the record and it is appealable by the State; a judgment of nonsuit, on the other hand, has the force and effect of verdict of not guilty, and the State may not appeal. State v. Pinkney, 25 N.C. App. 316, 212 S.E.2d 907 (1975).

Civil and Criminal Actions Compared. - This section serves, and was intended to serve, the same purpose in criminal prosecutions as was accomplished by former G.S. 1-183, in civil actions. State v. Fulcher, 184 N.C. 663, 113 S.E. 769 (1922); State v. Sigmon, 190 N.C. 684, 130 S.E. 854 (1925); State v. Norris, 206 N.C. 191, 173 S.E. 14 (1934); State v. Ormond, 211 N.C. 437, 191 S.E. 22 (1937); State v. Hill, 225 N.C. 74, 33 S.E.2d 470 (1945); State v. Bryant, 235 N.C. 420, 70 S.E.2d 186 (1952); State v. Sears, 235 N.C. 623, 70 S.E.2d 907 (1952); State v. Nall, 239 N.C. 60, 79 S.E.2d 354 (1953).

Former G.S. 1-183 was the statute setting forth the procedure to make a motion for judgment of compulsory nonsuit in civil actions and this section is the statute setting forth the procedure to make a motion for judgment of compulsory nonsuit in criminal actions. Jenkins v. Hawthorne, 269 N.C. 672, 153 S.E.2d 339 (1967).

III. QUESTION PRESENTED BY MOTION.

.

Question Presented. - The question for the court in considering a motion for judgment of nonsuit is whether there is reasonable basis upon which the jury might find that an offense charged in the indictment has been committed and the defendant is the perpetrator, or one of the perpetrators, of it. State v. Price, 280 N.C. 154, 184 S.E.2d 866 (1971); State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976); State v. Thomas, 292 N.C. 527, 234 S.E.2d 615 (1977); State v. Hyatt, 32 N.C. App. 623, 233 S.E.2d 649, cert. denied, 292 N.C. 733, 235 S.E.2d 786 (1977); State v. Joyner, 301 N.C. 18, 269 S.E.2d 125 (1980).

A motion for nonsuit presents only the question of the sufficiency of the evidence to carry the case to the jury. State v. Green, 251 N.C. 40, 110 S.E.2d 609 (1959); State v. Thompson, 256 N.C. 593, 124 S.E.2d 728, cert. denied, 371 U.S. 820, 83 S. Ct. 36, 9 L. Ed. 2d 60 (1962).

The test on a motion to dismiss is whether sufficient evidence has been presented to support a finding by the jury that defendant committed an offense with which he is charged. State v. Church, 43 N.C. App. 365, 258 S.E.2d 812 (1979).

Motion for nonsuit brings in question the sufficiency of all the evidence to take the case to the jury. State v. Sallie, 13 N.C. App. 499, 186 S.E.2d 667, cert. denied, 281 N.C. 316, 188 S.E.2d 900 (1972).

On a motion to nonsuit the question is whether, when all of the evidence is considered, there is substantial evidence to support a finding both that an offense charged in the bill of indictment has been committed and that the defendant committed it. State v. Scott, 289 N.C. 712, 224 S.E.2d 185 (1976); State v. Burke, 36 N.C. App. 577, 244 S.E.2d 477 (1978); State v. Riddle, 300 N.C. 744, 268 S.E.2d 80 (1980).

Upon motion for judgment as of nonsuit in a criminal prosecution, the questions before the court are whether there is substantial evidence of each essential element of the crime charged, and whether the accused was the perpetrator of the charged offense. State v. Bush, 289 N.C. 159, 221 S.E.2d 333, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976); State v. Lindsay, 45 N.C. App. 514, 263 S.E.2d 364 (1980); State v. LeDuc, 48 N.C. App. 227, 269 S.E.2d 220 (1980), rev'd on other grounds, 306 N.C. 62, 291 S.E.2d 607 (1982).

Upon the defendant's motion for judgment of nonsuit in a criminal action, the question for the court is whether there is substantial evidence of each essential element of the offense charged, or of a lesser offense included therein, and of the defendant's being the perpetrator of such offense. State v. Hill, 32 N.C. App. 261, 231 S.E.2d 682 (1977); State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982).

Upon motion for nonsuit, the question is whether there is substantial evidence - direct, circumstantial or both - to support a finding that the offense charged has been committed and that the accused committed it. State v. Stewart, 292 N.C. 219, 232 S.E.2d 443 (1977); State v. Barrow, 292 N.C. 227, 232 S.E.2d 693 (1977); State v. Jenkins, 300 N.C. 578, 268 S.E.2d 458 (1980).

Question for the trial court on a motion to dismiss is whether, upon consideration of the evidence in the light most favorable to the State, there is a reasonable basis upon which the jury might find that the crime charged has been committed and that defendant was a perpetrator of the crime. State v. Shelton, 53 N.C. App. 632, 281 S.E.2d 684 (1981), appeal dismissed, 305 N.C. 306, 290 S.E.2d 707 (1982); State v. Perry, 316 N.C. 87, 340 S.E.2d 450 (1986).

On a motion for nonsuit the sole question for decision is whether upon a consideration of all the evidence admitted - whether competent or incompetent - in the light most favorable to the State, there is substantial evidence to support the finding that the offenses charged in the bills of indictment were committed by defendant. State v. Allen, 279 N.C. 406, 183 S.E.2d 680 (1971).

When the court is to rule upon a demurrer to the evidence in a criminal case, it is required merely to ascertain whether there is any competent evidence to sustain the allegations of the indictment, the evidence being construed in the light most favorable to the State. State v. Murdock, 225 N.C. 224, 34 S.E.2d 69 (1945).

When ruling on a defendant's motion to dismiss, the question for the court is whether substantial evidence which will support a reasonable inference of the defendant's guilt has been introduced. In deciding this question, the trial court must consider the evidence in the light most favorable to the State. State v. Thomas, 52 N.C. App. 186, 278 S.E.2d 535, cert. denied, 305 N.C. 591, 292 S.E.2d 16 (1982).

When the motion for nonsuit calls into question the sufficiency of circumstantial evidence, the question for the court is whether a reasonable inference of defendant's guilt may be drawn from the circumstances. If so, it is for the jury to decide whether the facts, taken singly or in combination, satisfy them beyond a reasonable doubt that the defendant is guilty. State v. Mapp, 45 N.C. App. 574, 264 S.E.2d 348 (1980).

On motion to nonsuit, the court is required merely to ascertain whether there is any competent evidence to sustain the allegations of the indictment. State v. Landin, 209 N.C. 20, 182 S.E. 689 (1935). See also State v. Lefevers, 216 N.C. 494, 5 S.E.2d 552 (1939); State v. Alston, 233 N.C. 341, 64 S.E.2d 3 (1951).

In considering a motion to dismiss, it is the duty of the court to ascertain whether there is substantial evidence of each essential element of the offense charged. State v. Smith, 300 N.C. 71, 265 S.E.2d 164 (1980).

On a motion for nonsuit or dismissal, the court must determine whether there is substantial evidence of all the material elements of the offense charged. State v. Avery, 48 N.C. App. 675, 269 S.E.2d 708 (1980).

When a defendant moves under G.S. 15A-1227(a)(2) or under this section for dismissal at the close of all of the evidence, the trial court is to determine whether there is substantial evidence (a) of each essential element of the offense charged, or of a lesser offense included therein, and (b) of the defendant's being the perpetrator of the offense. State v. Bruce, 315 N.C. 273, 337 S.E.2d 510 (1985).

Question Presented - Circumstantial Evidence. - When the motion questions the sufficiency of circumstantial evidence, the question for the court is whether a reasonable inference of defendant's guilt may be drawn from the circumstances. State v. Spencer, 281 N.C. 121, 187 S.E.2d 779 (1972); State v. Solomon, 24 N.C. App. 527, 211 S.E.2d 478 (1975); State v. Shelton, 53 N.C. App. 632, 281 S.E.2d 684 (1981), appeal dismissed, 305 N.C. 306, 290 S.E.2d 707 (1982).

When a motion is made for a judgment of nonsuit or for a directed verdict of not guilty, the trial judge must determine whether there is substantial evidence of every essential element of the offense, and it is immaterial whether the substantial evidence is circumstantial, or direct, or both. State v. Jones, 280 N.C. 60, 184 S.E.2d 862 (1971).

When the motion for nonsuit calls into question the sufficiency of circumstantial evidence, the question for the court is whether a reasonable inference of defendant's guilt may be drawn from the circumstances. If so, it is for the jury to decide whether the facts, taken singly or in combination, satisfy them beyond a reasonable doubt that the defendant is actually guilty. State v. Rowland, 263 N.C. 353, 139 S.E.2d 661 (1965).

Motion Presents Question of Law for Court. - On motion for nonsuit, it is a question of law for the court to determine, in the first instance, whether the evidence adduced, when considered in its light most favorable to the State, is of sufficient probative force to justify the jury in drawing the affirmative inference of guilt. State v. Needham, 235 N.C. 555, 71 S.E.2d 29 (1952).

Whether the State has offered substantial evidence presents a question of law for the trial court. State v. McKinney, 24 N.C. App. 259, 210 S.E.2d 450 (1974), rev'd on other grounds, 288 N.C. 113, 215 S.E.2d 578 (1975); State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982).

To withstand defendant's motion for judgment as of nonsuit, there must be substantial evidence against the accused of every essential element that goes to make up the crime charged and whether the State has offered such substantial evidence presents a question of law for the court. State v. Allred, 279 N.C. 398, 183 S.E.2d 553 (1971).

When Jury Question Presented. - If there is any evidence tending to prove the fact of guilt or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not such as merely raises a suspicion or conjecture of guilt, it is for the jury to say whether they are convinced beyond a reasonable doubt of the fact of guilt. State v. Marion, 200 N.C. 715, 158 S.E. 406 (1931); State v. Rhodes, 252 N.C. 438, 113 S.E.2d 917 (1960); State v. Rogers, 252 N.C. 499, 114 S.E.2d 355 (1960).

Weight and Credibility of Evidence Are Jury Questions. - A demurrer to the evidence presents only the question of the sufficiency of the evidence to carry the case to the jury, the weight and credibility of the evidence being for the jury and not the court. State v. Smith, 221 N.C. 400, 20 S.E.2d 360 (1942).

When considering a motion for nonsuit the court is not concerned with the weight of the testimony but only with its sufficiency to carry the case to the jury and sustain the indictment. State v. McNeil, 280 N.C. 159, 185 S.E.2d 156 (1971).

Upon motion to dismiss under this section, it is required that the court ascertain merely where there is any sufficient evidence to sustain the allegations of the indictment and not whether it be true nor whether the jury should believe it. State v. McLeod, 196 N.C. 542, 146 S.E. 409 (1929).

The trial court in considering motions under this section is concerned only with the sufficiency of the evidence to carry the case to the jury and not with its weight. The trial court's function is to test whether a reasonable inference of the defendant's guilt of the crime charged may be drawn from the evidence. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980); State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982).

In ruling on a motion for nonsuit the court does not pass upon the credibility of the witnesses for the prosecution, or take into account any evidence contradicting them offered by the defense. The court merely considers the testimony favorable to the State, assumes it to be true, and determines its legal sufficiency to sustain the allegations of the indictment. Whether the testimony is true or false, and what it proves if it be true, are matters for the jury. State v. Wood, 235 N.C. 636, 70 S.E.2d 665 (1952).

In considering a motion for judgment as of nonsuit, the court is not concerned with the weight of the testimony, or with its truth or falsity, but only with the question of whether there is sufficient evidence for the jury to find that the offense charged has been committed and that defendant committed it. State v. Hines, 286 N.C. 377, 211 S.E.2d 201 (1975); State v. Williams, 31 N.C. App. 588, 229 S.E.2d 839 (1976), further review denied, 303 N.C. 712, 283 S.E.2d 138 (1981); State v. Flannery, 31 N.C. App. 617, 230 S.E.2d 603 (1976).

The reconciliation of any apparent discrepancy in the testimony, the weight of the evidence, and the credibility of the witnesses are all matters for the jury and not the court. State v. Reeves, 235 N.C. 427, 70 S.E.2d 9 (1952).

The credibility of witnesses and the weight to be given to their testimony is exclusively a matter for the jury. State v. Keller, 50 N.C. App. 364, 273 S.E.2d 741, appeal dismissed, 302 N.C. 400, 279 S.E.2d 354 (1981).

IV. ALLOWANCE OF MOTION.

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When Motion Allowed. - When all the evidence, that of the State and that of the defendant, is to the same effect and tends only exculpate the defendant, his motion for judgment as of nonsuit should be allowed. State v. McWilliams, 277 N.C. 680, 178 S.E.2d 476 (1971); State v. Atwood, 290 N.C. 266, 225 S.E.2d 543 (1976).

When the evidence most favorable to the State is sufficient only to raise a suspicion or conjecture that the accused was the perpetrator of the crime charged in the indictment, the motion for judgment as in case of nonsuit should be allowed. State v. Poole, 285 N.C. 108, 203 S.E.2d 786 (1974).

If, when the evidence is considered in the light most favorable to the State, it is sufficient only to raise a suspicion or conjecture as to the commission of the offense, the motion for nonsuit should be allowed. State v. Atwood, 290 N.C. 266, 225 S.E.2d 543 (1976).

If, when the evidence is considered in the light most favorable to the State, it is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion for nonsuit should be allowed, and this is true even though the suspicion aroused by the evidence is strong. State v. Scott, 289 N.C. 712, 224 S.E.2d 185 (1976); State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982).

Mere Suspicion of Guilt Warrants Dismissal. - When the facts and circumstances warranted by the evidence do no more than raise a suspicion of guilt, they are insufficient to make out a case and a motion to dismiss should be allowed. State v. Blizzard, 280 N.C. 11, 184 S.E.2d 851 (1971); State v. McCall, 286 N.C. 472, 212 S.E.2d 132 (1975); State v. Miller, 289 N.C. 1, 220 S.E.2d 572 (1975); State v. Warren, 289 N.C. 551, 223 S.E.2d 317 (1976); State v. Manuel, 291 N.C. 705, 231 S.E.2d 588 (1977); State v. Fletcher, 301 N.C. 515, 271 S.E.2d 913 (1980).

On a motion to dismiss for insufficient evidence, the court must find that there is substantial evidence, whether direct, circumstantial, or both, that the offense charged has been committed and that defendant committed it, in order to properly deny the motion; if, on the other hand, the evidence raises merely a suspicion or conjecture as to either the commission of the offense or defendant's identity as the perpetrator, the motion should be allowed. State v. Collins, 50 N.C. App. 155, 272 S.E.2d 603 (1980).

When a motion for judgment as of nonsuit or a motion to dismiss is lodged in a criminal action, the court must consider all the evidence actually admitted, whether competent or incompetent, in the light most favorable to the State. All contradictions or discrepancies must be resolved in its favor, and it must be given the benefit of every reasonable inference to be drawn from the evidence. When all the evidence is so considered, it is for the court to decide whether there is sufficient evidence to support a finding that the charged offense has been committed and that the defendant was the perpetrator of the offense. If, when so considered, the evidence is only sufficient to raise a suspicion or conjecture that the offense has been committed or that the defendant committed the charged offense, then the motion for judgment as of nonsuit or the motion to dismiss should be allowed. State v. Brown, 300 N.C. 41, 265 S.E.2d 191 (1980).

Where a complete defense is established by the State's case, on a criminal indictment, the defendant should be allowed to avail himself of a motion for nonsuit under this section. State v. Boyd, 223 N.C. 79, 25 S.E.2d 456 (1943); State v. Watts, 224 N.C. 771, 32 S.E.2d 348 (1944); State v. Jarrell, 233 N.C. 741, 65 S.E.2d 304 (1951).

When the State's evidence presents a complete defense, a defendant's motion for nonsuit should be allowed. State v. Cameron, 83 N.C. App. 69, 349 S.E.2d 327 (1986).

V. DENIAL OF MOTION.

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A. IN GENERAL.

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When Motion Denied. - A motion to dismiss or as of nonsuit upon the evidence in a criminal case will be denied if the evidence is sufficient, considered in the light most favorable to the State, to prove guilty of the defendant beyond a reasonable doubt. State v. Sigmon, 190 N.C. 684, 130 S.E. 854 (1925).

The rule to be applied when considering whether the State has introduced sufficient evidence to withstand a motion for nonsuit is well settled in this jurisdiction. A motion for nonsuit is properly denied when there is any evidence, whether introduced by the State or defendant, which will support the charges contained in the bill of indictment or warrant, considering the evidence in the light most favorable to the State and drawing every reasonable inference, deducible from the evidence, in favor of the State. State v. Everhart, 291 N.C. 700, 231 S.E.2d 604 (1977).

On a motion for judgment of nonsuit the evidence must be considered in the light most favorable for the State, and if there be any competent evidence to support the charge contained in the bill of indictment the case is one for the jury. State v. Scoggins, 225 N.C. 71, 33 S.E.2d 473 (1945); State v. Block, 245 N.C. 661, 97 S.E.2d 243 (1957); State v. Bell, 285 N.C. 746, 208 S.E.2d 506 (1974); State v. Yancey, 291 N.C. 656, 231 S.E.2d 637 (1977).

If, when the evidence is viewed in the light most favorable to the State, there is evidence from which a jury could find that the offense charged has been committed and that defendant committed it, the motion to nonsuit should be overruled. State v. McKenna, 289 N.C. 668, 224 S.E.2d 537, death sentence vacated, 429 U.S. 912, 97 S. Ct. 301, 50 L. Ed. 2d 278 (1976).

Motion for directed verdict or for judgment of nonsuit should be denied when, upon such consideration of the evidence, there is substantial evidence to support a finding that an offense charged in the bill of indictment has been committed and the defendant committed it. State v. Hunt, 289 N.C. 403, 222 S.E.2d 234, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976).

If there is substantial evidence, whether direct, circumstantial, or both, of all material elements of the offense charged, then the motion for nonsuit must be denied and it is then for the jury to determine whether the evidence establishes guilt beyond a reasonable doubt. State v. Coble, 24 N.C. App. 79, 210 S.E.2d 118 (1974); State v. Williams, 38 N.C. App. 138, 247 S.E.2d 630 (1978), cert. denied, 296 N.C. 108, 249 S.E.2d 807 (1979).

Motion to nonsuit should be denied if there is substantial evidence tending to prove each essential element of the offense charged. This rule applies whether the evidence is direct or circumstantial, or a combination of both. State v. Stephens, 244 N.C. 380, 93 S.E.2d 431 (1956); State v. Joyner, 301 N.C. 18, 269 S.E.2d 125 (1980).

Defendant's motion must be denied if the State has offered substantial evidence against defendant of every element of the crime charged. State v. Porter, 303 N.C. 680, 281 S.E.2d 377 (1980).

Whether the evidence is direct, circumstantial, or both, if there is evidence from which a jury could find that the offense charged has been committed and that defendant committed it, the motion to nonsuit should be overruled. State v. Cummings, 301 N.C. 374, 271 S.E.2d 277 (1980).

When there is sufficient evidence, direct or circumstantial, from which the jury could find that the charged offense has been committed and that defendant was the person who committed it, the motion should be denied. State v. McNeil, 280 N.C. 159, 185 S.E.2d 156 (1971); State v. Reynolds, 18 N.C. App. 10, 195 S.E.2d 581 (1973); State v. Mull, 24 N.C. App. 502, 211 S.E.2d 515 (1975); State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976); State v. Mull, 24 N.C. App. 502, 211 S.E.2d 515 (1975); State v. Phifer, 290 N.C. 203, 225 S.E.2d 786 (1976), cert. denied, 429 U.S. 1050, 97 S. Ct. 761, 50 L. Ed. 2d 766, 429 U.S. 1123, 97 S. Ct. 1160, 51 L. Ed. 2d 573 (1977); State v. Abrams, 29 N.C. App. 144, 223 S.E.2d 516 (1976); State v. Dangerfield, 32 N.C. App. 608, 233 S.E.2d 663, cert. denied, 292 N.C. 642, 235 S.E.2d 63 (1977); State v. Phillips, 300 N.C. 678, 268 S.E.2d 452 (1980); State v. Owen, 51 N.C. App. 429, 276 S.E.2d 478 (1981), cert. denied, 305 N.C. 154, 289 S.E.2d 382 (1982).

Motion challenging the sufficiency of circumstantial evidence to go to the jury should be denied if there is evidence, considered in the light most favorable to the State, from which the jury could find that a crime has been committed and that defendant committed it. State v. Solomon, 24 N.C. App. 527, 211 S.E.2d 478 (1975).

The motion for nonsuit must be denied where there is sufficient evidence that the offense charged was committed and that the defendant committed it. State v. Hales, 32 N.C. App. 729, 233 S.E.2d 601, cert. denied, 292 N.C. 732, 235 S.E.2d 782 (1977).

If there is any competent evidence tending to establish each material element of the offense charged in the bill of indictment the motion to dismiss or for nonsuit must be overruled. State v. Thomas, 292 N.C. 251, 232 S.E.2d 411 (1977).

Where there is any competent evidence to support the allegations of the indictment, the motion to dismiss is properly denied. State v. Shelton, 53 N.C. App. 632, 281 S.E.2d 684 (1981), appeal dismissed, 305 N.C. 306, 290 S.E.2d 707 (1982).

If there is any evidence tending to prove the fact of guilt, or which reasonably leads to that conclusion as a logical and legitimate deduction, the motion must be denied. State v. Stewart, 292 N.C. 219, 232 S.E.2d 443 (1977); State v. Barrow, 292 N.C. 227, 232 S.E.2d 693 (1977).

If there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury. State v. Bogan, 266 N.C. 99, 145 S.E.2d 374 (1965); State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982).

A motion for judgment as of nonsuit should be denied if there is any evidence tending to prove the fact in issue, or which reasonably conduces the conclusion of guilt as a fairly logical and legitimate deduction, but evidence which merely raises a suspicion or conjecture of the fact of guilt is insufficient to be submitted to the jury. State v. Stephenson, 218 N.C. 258, 10 S.E.2d 819 (1940); State v. Boyd, 223 N.C. 79, 25 S.E.2d 456 (1943); State v. Kirkman, 224 N.C. 778, 32 S.E.2d 328 (1944); State v. Murphy, 225 N.C. 115, 33 S.E.2d 588 (1945); State v. Simmons, 240 N.C. 780, 83 S.E.2d 904 (1954).

Where the evidence for the prosecution is sufficient to make out a case, nonsuit on the ground that the defendant's evidence tended to establish a defense is properly denied. State v. Werst, 232 N.C. 330, 59 S.E.2d 835 (1950).

A motion for judgment of nonsuit must be denied, if there be any substantial evidence - more than a scintilla - to prove the allegations of the indictment. State v. Weinstein, 224 N.C. 645, 31 S.E.2d 920, cert. denied, 324 U.S. 849, 65 S. Ct. 689, 89 L. Ed. 1410 (1944).

If there is any evidence which reasonably tends to show guilt of the offense charged and from which a jury might legitimately convict, a motion for nonsuit should be denied. State v. McWilliams, 277 N.C. 680, 178 S.E.2d 476 (1971).

Trial court did not err in not dismissing the charges of assault with a deadly weapon with intent to kill, as the evidence was sufficient to show that defendant intended to kill the man that defendant fired his semi-automatic gun at five times in rapid succession; however, four of the five charges should have been dismissed since the evidence only showed one assault, not five assaults. State v. Maddox, 159 N.C. App. 127, 583 S.E.2d 601 (2003).

Where a motion is not limited to a single count or to any one degree of the crimes charged, but is addressed to the entire bill or to both counts as a whole, it cannot be allowed to support either count or any degree of either count. State v. Marsh, 234 N.C. 101, 66 S.E.2d 684 (1951).

A motion for judgment as of nonsuit addressed to the entire bill is properly overruled if there is evidence sufficient to support a conviction of the crime charged or of an included crime. State v. Virgil, 263 N.C. 73, 138 S.E.2d 777 (1964); State v. Rowland, 263 N.C. 353, 139 S.E.2d 661 (1965).

When State offers evidence of corpus delicti in addition to defendant's extrajudicial confessions, the defendant's motion to nonsuit is correctly denied. State v. Whitfield, 51 N.C. App. 241, 275 S.E.2d 540 (1981).

Motion will not lie for failure of the State to offer evidence of a nonessential averment in the indictment, when each essential element of the offense is supported by competent evidence. State v. Atkinson, 210 N.C. 661, 188 S.E. 73 (1936).

Denial of Motion Held Proper. - Motion to dismiss the charge of attempted first-degree murder was properly denied because the evidence was sufficient to support a conclusion that defendant acted with premeditation and deliberation. There was no provocation by the police officer, defendant fired multiple shots within a fairly close range towards the officer, which required separate pulls of the trigger, and defendant's own words demonstrated his intent to kill. State v. Mack, 161 N.C. App. 595, 589 S.E.2d 168 (2003).

Trial court did not err in denying defendant's motion to dismiss the charges because, although defendant's actions while driving were not impaired by alcohol, they were still sufficient to establish the culpable negligence needed to support both involuntary manslaughter and assault with a deadly weapon inflicting serious injury. A witness noticed inappropriate driving by both defendant and the decedent prior to their vehicles approaching a sharp curve, as they approached the curve, defendant attempted to pass the decedent and the witness despite having no visibility around the curve, and defendant's attempt to pass the vehicles at that particular time was in blatant disregard of safety concerns associated with that portion of the highway and a violation of G.S. 20-150. State v. Wade, 161 N.C. App. 686, 589 S.E.2d 379 (2003), cert. denied, 358 N.C. 241, 594 S.E.2d 33 (2004).

State presented sufficient evidence to survive G.S. 15-173 motion to dismiss kidnapping charges in capital murder case where a defendant and codefendant confined, restrained, or removed the victim for the purpose of doing serious bodily harm to or terrorizing the victim, resulting in serious injury to the victim including putting the victim in the victim's car trunk and then burning the car; the jury was not required to unanimously find any one of the "either/or" kidnapping predicates, as long as there was evidence for them to find at least one of the predicates - "unanimity" was not required. State v. Bell, 359 N.C. 1, 603 S.E.2d 93 (2004).

Trial court properly denied defendant's motion to dismiss the charge of attempted murder of an infant child as the State of North Carolina presented sufficient evidence of defendant's specific intent to kill the child by showing that defendant carjacked a woman and her infant child, drove the woman and her infant child to a deserted area, raped the woman, beat the woman to death, and drove away while leaving the child behind in his diapers on a hot day in grass a foot tall at the deserted area. Additionally, a pediatric critical care expert testified that the infant's injuries, especially sunburns, were life-threatening and that if the infant had not been found by a passerby before nightfall he could have died as a result of exposure and dehydration. State v. Edwards, 174 N.C. App. 490, 621 S.E.2d 333 (2005).

B. APPEAL FROM DENIAL OF MOTION.

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Scope of Appellate Review. - On appeal in criminal cases the Supreme Court cannot pass upon the weight of evidence, but only upon whether there is sufficient evidence to support conviction. State v. Shoup, 226 N.C. 69, 36 S.E.2d 697 (1946).

Supreme Court Not to Weigh Evidence. - This section provides that if on the motion the judgment of nonsuit is allowed on appeal, it shall, in all cases, have the force and effect of a verdict of not guilty. This is not, therefore, the case of a new trial for some error of the judge, but is a verdict by the court of not guilty, which theretofore was without precedent. But the statute certainly did not intend that the Supreme Court should weigh the evidence and render a verdict. State v. Cooke, 176 N.C. 731, 97 S.E. 171 (1918).

Effect of Reversal of Judgment of Guilty. - Under the provisions of this section the reversal of a judgment of guilty has the force and effect of a verdict of "not guilty." State v. Corey, 199 N.C. 209, 153 S.E. 923 (1930).

Where defendant's motion to nonsuit was allowed in the Supreme Court, this ruling was tantamount to a verdict of not guilty. State v. Smith, 236 N.C. 748, 73 S.E.2d 901 (1953); State v. Wooten, 239 N.C. 117, 79 S.E.2d 254 (1953).

Appeal of Denial of Motion Without Exception in Record. - A defendant may properly present on appeal the questions enumerated in N.C.R.A.P., Rule 10(a) without taking any exceptions or making any assignments of error in the record and may properly present for review the denial of his motion for nonsuit under this section without making any exception in the record. However, in both these situations, the defendant must still bring those questions forward in his brief, argue them and cite authorities in support of his arguments. Failure to do so means that those questions are not properly presented for review. State v. Samuels, 298 N.C. 783, 260 S.E.2d 427 (1979).

Question on Appeal Where Defendant Offers Evidence. - Where defendant offers evidence, the only question on appeal is whether the court erred in the denial of the motion made by defendant at the close of all the evidence. State v. Leggett, 255 N.C. 358, 121 S.E.2d 533 (1961).

Where defendant offers evidence in his own behalf, his assignment of error must be directed to the court's refusal to grant his motion for compulsory nonsuit at the close of all the evidence. State v. Jones, 6 N.C. App. 712, 171 S.E.2d 17 (1969).

The denial of defendant's motion to dismiss at the close of the State's evidence was not properly at issue on appeal, where defendant chose to offer evidence after his motion was denied and thereby waived appellate review of the trial judge's decision. State v. Rasor, 319 N.C. 577, 356 S.E.2d 328 (1987).

Under this section, a defendant who introduces evidence waives any motion for dismissal or nonsuit made prior to the introduction of his evidence and cannot urge the prior motion as grounds for appeal. State v. Smith, 320 N.C. 404, 358 S.E.2d 329 (1987).

Where defendant chose to offer evidence after his motion to dismiss was denied, he thereby waived appellate review of the trial judge's decision. State v. Harris, 323 N.C. 112, 371 S.E.2d 689 (1988).

Because defendant failed to renew his motion for dismissal at the close of all the evidence, defendant failed to preserve the issue of whether the court properly denied his motion to dismiss the charges against him for appellate review. State v. Brunson, 187 N.C. App. 472, 653 S.E.2d 552 (2007).

Supreme Court Will Consider Only Denial of Motion Made at Close of All the Evidence. - Where defendant offered evidence after his motion for judgment as of nonsuit at the close of the State's evidence, the Supreme Court on appeal will consider only the denial of the motion made at the close of all the evidence, and the court must act in light of all the evidence. State v. Robbins, 275 N.C. 537, 169 S.E.2d 858 (1969).

Consideration of Entire Evidence on Appeal. - Where a defendant in a criminal action desires to except to the sufficiency of the evidence to convict him, his excepting, under this section, at the close of the State's evidence, and upon the overruling of his motion to nonsuit, excepting at the close of all the evidence, brings his exception to the Supreme Court on appeal upon the sufficiency of the entire evidence to convict, and is the proper procedure for that purpose. State v. Kelly, 186 N.C. 365, 119 S.E. 755 (1923).

Where both before and after he had introduced evidence, the defendant moved to dismiss the prosecution as in case of nonsuit, and duly excepted to the court's denial of his motion, the exceptions, therefore, required a consideration of the entire evidence. State v. Pasour, 183 N.C. 793, 111 S.E. 779 (1922).

An exception to a motion to dismiss in a criminal action taken after the close of the State's evidence, and renewed by defendant after the introduction of his own evidence, does not confine the appeal to the State's evidence alone, and a conviction will be sustained under the second exception if there is any sufficient evidence on the whole record of the defendant's guilt. State v. Brinkley, 183 N.C. 720, 110 S.E. 783 (1922).

A motion as of nonsuit in a criminal case at the close of the State's evidence, renewed after all the evidence has been introduced, does not confine its sufficiency to the time of the first motion, and will be denied if there is sufficient evidence in the State's behalf viewing all the evidence in its entirety. State v. Earp, 196 N.C. 164, 145 S.E. 23 (1928).

Upon appeal from the denial of a motion as of nonsuit in a criminal action, review of the evidence is not confined to the State's evidence alone, but all the evidence in the State's favor, taken in the light most favorable to the State and giving it every reasonable intendment therefrom, will be considered, and where there is sufficient evidence of the defendant's guilt upon the whole record, the action of the trial judge in denying the motion of nonsuit will be upheld. State v. Lawrence, 196 N.C. 562, 146 S.E. 395 (1929).

When upon the trial of a criminal action, the State produces its evidence and rests, and the defendant preserves his exception to the refusal of his motion for judgment as of nonsuit, and, after offering evidence and the case closed, defendant renews his motion for judgment as of nonsuit, the court must act, not only in the light of the evidence of the State, but of all the evidence; and, in such case, the defendant is entitled to the benefit only of his exception to the refusal of the latter motion. State v. Norton, 222 N.C. 418, 23 S.E.2d 301 (1942).

Defendant's exception to the denial of his motion to dismiss, made at the close of all of the evidence, presented the issue of the sufficiency of all of the evidence to go to the jury. Therefore, for purposes of reviewing this assignment of error, the court would consider all of the evidence introduced at trial, and would not determine whether that evidence was competent. State v. Evangelista, 319 N.C. 152, 353 S.E.2d 375 (1987).

Later Testimony of Codefendant Not Considered. - Where the defendant had not offered evidence, he was entitled to have his motion for nonsuit passed upon based on the facts in evidence when the State rested its case, and the Court of Appeals did not consider the later testimony of the codefendant. State v. Berryman, 10 N.C. App. 649, 179 S.E.2d 875 (1971).

Where evidence was substantially similar to that introduced at former trial, decision of the Supreme Court on the former appeal that evidence was sufficient to be submitted to the jury is res judicata on question of nonsuit or sufficiency of evidence. State v. Stone, 226 N.C. 97, 36 S.E.2d 704 (1946).

Defendant's exception to the denial of his motion to dismiss, made at the close of all of the evidence, presented the issue of the sufficiency of all of the evidence to go to the jury. Therefore, for purposes of reviewing this assignment of error, the court would consider all of the evidence introduced at trial, and would not determine whether that evidence was competent. State v. Evangelista, 319 N.C. 152, 353 S.E.2d 375 (1987).

Denial of Motion to Dismiss Was Proper. - Defendant's motion to dismiss a conspiracy to commit robbery with a dangerous weapon charge was properly denied as there was conflicting evidence as to whether a gun given to a person who committed a robbery (the actor) was real or not and there was sufficient evidence that the gun was an operable weapon where: (1) defendant and two other men told the actor to rob a store in exchange for drugs, which she agreed to do, (2) the men provided the actor with a gun and she committed the robbery, (3) the actor spoke primarily with defendant regarding the robbery, (4) the actor stated that one of the men told her that the gun was fake, but that she was uncertain whether it was fake, and (5) the actor stated that defendant and the others had a real gun and a fake gun and that she believed she had been given the fake one. State v. Carter, 177 N.C. App. 539, 629 S.E.2d 332 (2006).

Where the victim, defendant's girlfriend, stated that defendant was angry that she had called the police after she discovered her car was gone, and had strangled, raped, and threatened to kill her, and her testimony was corroborated by witnesses who saw her afterwards, the trial court properly denied defendant's motion to dismiss. State v. Brunson, 187 N.C. App. 472, 653 S.E.2d 552 (2007).

VI. EVIDENCE.

.

Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. State v. Smith, 300 N.C. 71, 265 S.E.2d 164 (1980); State v. Porter, 303 N.C. 680, 281 S.E.2d 377 (1980); State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982).

Terms "more than a scintilla of evidence" and "substantial evidence" are in reality the same, and simply mean that the evidence must be existing and real, not just seeming or imaginary. State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982).

"No Evidence to Go to Jury" Not Taken Literally. - When it is said that there is no evidence to go to the jury, it does not mean that there is literally and absolutely none, for as to this there could be no room for any controversy, but there is none which ought reasonably to satisfy the jury that the fact sought to be proved is established. State v. Woodell, 211 N.C. 635, 191 S.E. 334 (1937).

Evidence Required to Withstand Motion. - There must be substantial evidence of all material elements of the offense to withstand the motion to dismiss. State v. Bogan, 266 N.C. 99, 145 S.E.2d 374 (1965); State v. Rigsbee, 285 N.C. 708, 208 S.E.2d 656 (1974); State v. McKinney, 24 N.C. App. 259, 210 S.E.2d 450 (1974), rev'd on other grounds, 288 N.C. 113, 215 S.E.2d 578 (1975); State v. McKinney, 288 N.C. 113, 215 S.E.2d 578 (1975); State v. Barrow, 292 N.C. 227, 232 S.E.2d 693 (1977).

Upon motions for directed verdict of not guilty and nonsuit, the court must find that there is substantial evidence both that an offense charged has been committed and that the defendant committed it before it can overrule the motions. State v. Alford, 289 N.C. 372, 222 S.E.2d 222, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976); State v. McCall, 289 N.C. 512, 223 S.E.2d 303, death sentence vacated, 429 U.S. 912, 97 S. Ct. 301, 50 L. Ed. 2d 278 (1976); State v. Avery, 48 N.C. App. 675, 269 S.E.2d 708 (1980).

To withstand defendant's motion to dismiss, the State must have presented evidence of every essential element of the crime. State v. Church, 43 N.C. App. 365, 258 S.E.2d 812 (1979).

Evidence May Be Either Circumstantial or Direct. - There must be substantial evidence of all material elements of the offense to withstand the motion to dismiss, and it is immaterial whether the substantial evidence is circumstantial or direct, or both. State v. Poole, 285 N.C. 108, 203 S.E.2d 786 (1974); State v. Minor, 290 N.C. 68, 224 S.E.2d 180 (1976).

The test of the sufficiency of the evidence to withstand the motion for judgment of nonsuit is the same whether the evidence is circumstantial, direct or both. State v. Porter, 303 N.C. 680, 281 S.E.2d 377 (1980); State v. LeDuc, 48 N.C. App. 227, 269 S.E.2d 220 (1980), rev'd on other grounds, 306 N.C. 62, 291 S.E.2d 607 (1982); State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982).

Standard of Proof Not Same as for Conviction. - A trial judge, in passing upon a motion for a judgment as of nonsuit, under the provisions of this section is not bound by the measure or quantum of proof by which the State must prove a defendant's guilt before the jury can convict him. State v. Davenport, 227 N.C. 475, 42 S.E.2d 686 (1947).

Evidence Need Not Exclude Every Reasonable Hypothesis of Innocence. - The trial court is not required to determine that the evidence excludes every reasonable hypothesis of innocence before denying a defendant's motion to dismiss. State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982); State v. Bruce, 315 N.C. 273, 337 S.E.2d 510 (1985).

Circumstantial Evidence Need Not Point Unerringly to Defendant's Guilt. - Where all of the evidence introduced by the State is circumstantial in nature, it is not necessary that such evidence must establish facts so connected and related as to point unerringly to defendant's guilt and exclude any other reasonable hypothesis, but only that there be substantial evidence of all elements of the crime sufficient to submit the case to the jury. State v. Griffin, 18 N.C. App. 14, 195 S.E.2d 569 (1973).

There must be legal evidence of the fact in issue and not merely such as raises a suspicion or conjecture in regard to it. State v. Bass, 253 N.C. 318, 116 S.E.2d 772 (1960).

Evidence Raising Suspicion Only. - Evidence that does no more than raise a suspicion, somewhat strong, perhaps, of a crime and the defendant's guilt, is not enough, and demurrer to the evidence will be sustained. State v. Carter, 204 N.C. 304, 168 S.E. 204 (1933).

Where the evidence, taken in the light most favorable to the State, on motion by defendants for judgment as of nonsuit in a criminal prosecution, raises no more than a suspicion as to the guilt of defendants, the same is insufficient to support a verdict of guilt and the motion must be allowed. State v. Heglar, 225 N.C. 220, 34 S.E.2d 76 (1945).

On the trial of several defendants, upon an indictment for robbery, where the evidence against one of the defendants raises no more than a suspicion of his guilt, a motion to dismiss as to such defendant should be allowed. State v. Ham, 224 N.C. 128, 29 S.E.2d 449 (1944).

Mere Possibility or Conjecture Insufficient. - Evidence which merely shows it possible for the fact in issue to be as alleged, or which raises a mere conjecture that it was so, is an insufficient foundation for a verdict and should not be left to a jury. State v. Glenn, 251 N.C. 156, 110 S.E.2d 791 (1959).

Upon a motion for judgment of nonsuit the evidence is to be considered in the light most favorable for the State, but evidence which merely suggests the possibility of guilt or which raises only a conjecture is insufficient to require submission to the jury. State v. Guffey, 252 N.C. 60, 112 S.E.2d 734 (1960).

Defendant's motion to dismiss must be considered in light of all the evidence introduced by the State, as well as that introduced by defendant. State v. Perry, 316 N.C. 87, 340 S.E.2d 450 (1986).

Renewal of the motion to dismiss at the conclusion of all the evidence compels the court to consider the motion in light of all the evidence presented at trial. State v. Britt, 87 N.C. App. 152, 360 S.E.2d 291 (1987), cert. denied, 321 N.C. 475, 364 S.E.2d 924 (1988).

Evidence Considered in Light Most Favorable to State. - On a motion for judgment as of nonsuit in a criminal case the evidence must be considered in the light most favorable to the State. State v. Marion, 200 N.C. 715, 158 S.E. 406 (1931); State v. Herndon, 223 N.C. 208, 25 S.E.2d 611, cert. denied, 320 U.S. 759, 64 S. Ct. 67, 88 L. Ed. 452 (1943). See State v. McMahan, 224 N.C. 476, 31 S.E.2d 357 (1944); State v. Fulk, 232 N.C. 118, 59 S.E.2d 617 (1950); State v. Hendrick, 232 N.C. 447, 61 S.E.2d 349 (1950); State v. Jarrell, 233 N.C. 741, 65 S.E.2d 304 (1951); State v. Holland, 234 N.C. 354, 67 S.E.2d 272 (1951); State v. Reeves, 253 N.C. 427, 70 S.E.2d 9 (1952); State v. Simmons, 240 N.C. 780, 83 S.E.2d 904 (1954); State v. Neal, 248 N.C. 544, 103 S.E.2d 722 (1958); State v. Glenn, 251 N.C. 156, 110 S.E.2d 791 (1959); State v. Rhodes, 252 N.C. 438, 113 S.E.2d 917 (1960); State v. Rogers, 252 N.C. 499, 114 S.E.2d 355 (1960); State v. Downey, 253 N.C. 348, 117 S.E.2d 39 (1960); State v. Bogan, 266 N.C. 99, 145 S.E.2d 374 (1965); State v. Allred, 279 N.C. 398, 183 S.E.2d 553 (1971); State v. Jones, 280 N.C. 60, 184 S.E.2d 862 (1971); State v. Bolin, 281 N.C. 415, 189 S.E.2d 235 (1972); State v. Ferguson, 17 N.C. App. 367, 194 S.E.2d 219 (1973); State v. White, 18 N.C. App. 31, 195 S.E.2d 576, appeal dismissed, 283 N.C. 587, 196 S.E.2d 811 (1973); State v. Reynolds, 18 N.C. App. 10, 195 S.E.2d 581 (1973); State v. Atwood, 290 N.C. 266, 225 S.E.2d 543 (1976); State v. Waite, 32 N.C. App. 279, 232 S.E.2d 278 (1977); State v. Hales, 32 N.C. App. 729, 233 S.E.2d 601, cert. denied, 292 N.C. 732, 235 S.E.2d 782 (1977); State v. McRae, 58 N.C. App. 225, 292 S.E.2d 778 (1982); State v. Cameron, 83 N.C. App. 69, 349 S.E.2d 327 (1986).

In considering a motion under this section, the evidence most favorable to the State must be considered as true. State v. Poole, 285 N.C. 108, 203 S.E.2d 786 (1974).

Upon a motion for judgment of nonsuit, the evidence by the State is to be deemed true and is to be considered in the light most favorable to the State. State v. Madden, 292 N.C. 114, 232 S.E.2d 656 (1977).

Upon a motion for judgment as of nonsuit, the evidence must be considered in the light most favorable to the State and the court will not pass upon its weight or the credibility of the witnesses. State v. Rountree, 181 N.C. 535, 106 S.E. 669 (1921); State v. Atlantic Ice & Coal Co., 210 N.C. 742, 188 S.E. 412 (1936); State v. Johnson, 226 N.C. 671, 40 S.E.2d 113 (1946). See State v. Eubanks, 209 N.C. 758, 184 S.E. 839 (1936). See also State v. Mann, 219 N.C. 212, 13 S.E.2d 247, 132 A.L.R. 1309 (1941); State v. Webb, 233 N.C. 382, 64 S.E.2d 268 (1951); State v. McLamb, 235 N.C. 251, 69 S.E.2d 537 (1952); State v. Robbins, 243 N.C. 161, 90 S.E.2d 322 (1955); State v. Edmundson, 244 N.C. 693, 94 S.E.2d 844 (1956); State v. Gay, 251 N.C. 78, 110 S.E.2d 458 (1959).

The court is required, in a motion for judgment of nonsuit, to consider all the State's voluminous and interlocking evidence in the light most favorable to it. State v. Goldberg, 261 N.C. 181, 134 S.E.2d 334, cert. denied, 377 U.S. 978, 84 S. Ct. 1884, 12 L. Ed. 2d 747 (1964).

On motion for judgment as of nonsuit, the evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference therefrom. State v. Beaver, 266 N.C. 115, 145 S.E.2d 330 (1965); State v. Moore, 279 N.C. 455, 183 S.E.2d 546 (1971); State v. Berryman, 10 N.C. App. 649, 179 S.E.2d 875 (1971); State v. Dull, 289 N.C. 55, 220 S.E.2d 344 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1211 (1976); State v. Mull, 24 N.C. App. 502, 211 S.E.2d 515 (1975); State v. Bush, 289 N.C. 159, 221 S.E.2d 333, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976); State v. Phifer, 290 N.C. 203, 225 S.E.2d 786 (1976), cert. denied, 429 U.S. 1050, 97 S. Ct. 761, 50 L. Ed. 2d 766, 429 U.S. 1123, 97 S. Ct. 1160, 51 L. Ed. 2d 573 (1977); State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976); State v. Hunter, 290 N.C. 556, 227 S.E.2d 535 (1976), cert. denied, 429 U.S. 1093, 97 S. Ct. 1106, 51 L. Ed. 2d 539 (1977); State v. Yancey, 291 N.C. 656, 231 S.E.2d 637 (1977); State v. Thomas, 292 N.C. 251, 232 S.E.2d 411 (1977); State v. Warren, 292 N.C. 235, 232 S.E.2d 419 (1977); State v. Stewart, 292 N.C. 219, 232 S.E.2d 443 (1977); State v. Barrow, 292 N.C. 227, 232 S.E.2d 693 (1977); State v. Dollar, 292 N.C. 344, 233 S.E.2d 521 (1977); State v. Foust, 32 N.C. App. 301, 232 S.E.2d 276 (1977); State v. Porter, 303 N.C. 680, 281 S.E.2d 377 (1980); State v. LeDuc, 48 N.C. App. 227, 269 S.E.2d 220 (1980), rev'd on other grounds, 306 N.C. 62, 291 S.E.2d 607 (1982); State v. Hunter, 48 N.C. App. 656, 270 S.E.2d 120 (1980); State v. Batts, 303 N.C. 155, 277 S.E.2d 385 (1981); State v. Owen, 51 N.C. App. 429, 276 S.E.2d 478 (1981), 305 N.C. 154, 289 S.E.2d 382 (1982); State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982); State v. Dow, 70 N.C. App. 82, 318 S.E.2d 883 (1984).

On motion for nonsuit in a criminal case the evidence must be considered in the light most favorable to the State, the State is entitled to every reasonable inference which may legitimately be drawn from the evidence. State v. Sallie, 13 N.C. App. 499, 186 S.E.2d 667, cert. denied, 281 N.C. 316, 188 S.E.2d 900 (1972); State v. McCall, 286 N.C. 472, 212 S.E.2d 132 (1975); State v. Jackson, 306 N.C. 642, 295 S.E.2d 383 (1982).

Motion to nonsuit requires the trial judge to consider the evidence in the light most favorable to the State, take it as true, and give the State the benefit of every reasonable inference to be drawn therefrom. State v. McNeil, 280 N.C. 159, 185 S.E.2d 156 (1971); State v. Miller, 289 N.C. 1, 220 S.E.2d 572 (1975); State v. Hunt, 289 N.C. 403, 222 S.E.2d 234, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976); State v. McCall, 289 N.C. 512, 223 S.E.2d 303, death sentence vacated, 429 U.S. 912, 97 S. Ct. 301, 50 L. Ed. 2d 278 (1976); State v. Biggs, 289 N.C. 522, 223 S.E.2d 371 (1976); State v. Haywood, 295 N.C. 709, 249 S.E.2d 429 (1978); State v. Phillips, 300 N.C. 678, 268 S.E.2d 452 (1980); State v. Cummings, 301 N.C. 374, 271 S.E.2d 277 (1980); State v. Fletcher, 301 N.C. 515, 271 S.E.2d 913 (1980).

On a motion for nonsuit in a criminal action, the evidence is to be taken in the light most favorable to the State, and it is entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom. State v. Fleming, 194 N.C. 42, 138 S.E. 342 (1927). See also, State v. Lawrence, 196 N.C. 562, 146 S.E. 395 (1929); State v. Durham, 201 N.C. 724, 161 S.E. 398 (1931); State v. Smoak, 213 N.C. 79, 195 S.E. 72 (1938); State v. Adams, 213 N.C. 243, 195 S.E. 822 (1938); State v. Hammonds, 216 N.C. 67, 3 S.E.2d 439 (1939); State v. Brown, 218 N.C. 415, 11 S.E.2d 321 (1940); State v. Block, 245 N.C. 661, 97 S.E.2d 243 (1957); State v. Avent, 253 N.C. 580, 118 S.E.2d 47 (1961), judgment vacated, 373 U.S. 375, 83 S. Ct. 1311, 10 L. Ed. 2d 420 (1963), rev'd on other grounds, 262 N.C. 425, 137 S.E.2d 161 (1964); State v. Walker, 266 N.C. 269, 145 S.E.2d 833 (1966); State v. Murphy, 280 N.C. 1, 184 S.E.2d 845 (1971); State v. McKinney, 288 N.C. 113, 215 S.E.2d 578 (1975); State v. Carter, 289 N.C. 35, 220 S.E.2d 313 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3212, 49 L. Ed. 2d 1211 (1976); State v. Abrams, 29 N.C. App. 144, 223 S.E.2d 516 (1976); State v. Flannery, 31 N.C. App. 617, 230 S.E.2d 603 (1976); State v. Dangerfield, 32 N.C. App. 608, 233 S.E.2d 663, cert. denied, 292 N.C. 642, 235 S.E.2d 63 (1977); State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980); State v. Smith, 300 N.C. 71, 265 S.E.2d 164 (1980); State v. Jenkins, 300 N.C. 578, 268 S.E.2d 458 (1980); State v. Joyner, 301 N.C. 18, 269 S.E.2d 125 (1980); State v. McNeil, 46 N.C. App. 533, 265 S.E.2d 416, cert. denied, 300 N.C. 560, 270 S.E.2d 114 (1980); State v. Avery, 48 N.C. App. 675, 269 S.E.2d 708 (1980); State v. Collins, 50 N.C. App. 155, 272 S.E.2d 603 (1980); State v. Mettrick, 54 N.C. App. 1, 283 S.E.2d 139 (1981), aff'd, 305 N.C. 642, 289 S.E.2d 354 (1982).

In passing upon a motion for judgment as of nonsuit, the trial judge must consider all the evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from the evidence and considering so much of defendant's evidence as may be favorable to the State. State v. Hines, 286 N.C. 377, 211 S.E.2d 201 (1975); State v. Williams, 31 N.C. App. 588, 229 S.E.2d 839 (1976), further review denied, 303 N.C. 712, 283 S.E.2d 138 (1981).

Upon a motion as of nonsuit in a criminal action, made at the close of the State's evidence and renewed at the close of all of the evidence, all the evidence, whether offered by the State or elicited from defendant's witnesses, will be considered in the light most favorable to the State, and it is entitled to every reasonable intendment thereon and every reasonable inference therefrom, and only evidence favorable to the State will be considered, the weight and credibility of the evidence being for the jury. State v. Shipman, 202 N.C. 518, 163 S.E. 657 (1932); State v. Ammons, 204 N.C. 753, 169 S.E. 631 (1933); State v. Mann, 219 N.C. 212, 13 S.E.2d 247, 132 A.L.R. 1309 (1941).

In considering a motion to dismiss the action under the statute, the appellate court is merely to ascertain whether there is any evidence to sustain the indictment; and in deciding the question the appellate court must not forget that the State is entitled to the most favorable interpretation of the circumstances and all inferences that may fairly be drawn from them. State v. Carlson, 171 N.C. 818, 89 S.E. 30 (1916); State v. Rountree, 181 N.C. 535, 106 S.E. 669 (1921); State v. Carr, 196 N.C. 129, 144 S.E. 698 (1928).

Upon defendant's motion to dismiss, all the evidence favorable to the State must be considered, such evidence must be deemed true and considered in the light most favorable to the State, and the State is entitled to every inference of fact which may be reasonably deduced therefrom. State v. Stanley, 74 N.C. App. 178, 327 S.E.2d 902, cert. denied, 314 N.C. 546, 335 S.E.2d 318 (1985).

When defendant moves under G.S. 15A-1227(a)(2) or under this section for dismissal at the close of all the evidence, the trial court is to view all of the evidence in the light most favorable to the state and give the state all reasonable inferences that may be drawn from the evidence supporting the charges against the defendant. State v. Bruce, 315 N.C. 273, 337 S.E.2d 510 (1985).

Renewal of the motion to dismiss at the conclusion of all the evidence compels the court to consider the motion in light of all the evidence presented at trial. State v. Britt, 87 N.C. App. 152, 360 S.E.2d 291 (1987).

Whether True or False. - For purposes of ruling on the motion, the court takes as true all of the State's evidence; whether the testimony is true or false and what it proves or fails to prove are matters for the jury. State v. Joyner, 301 N.C. 18, 269 S.E.2d 125 (1980).

Any contradictions and discrepancies in the evidence are resolved in favor of the State for the purpose of considering a motion for nonsuit. State v. Bush, 289 N.C. 159, 221 S.E.2d 333, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976).

Reasonable Inferences Unfavorable to State Must Be Ignored. - If the trial court determines that a reasonable inference of the defendant's guilt may be drawn from the evidence, it must deny the defendant's motion for nonsuit and send the case to the jury even though the evidence may also support reasonable inferences of the defendant's innocence. State v. McNeil, 46 N.C. App. 533, 265 S.E.2d 416, cert. denied, 300 N.C. 560, 270 S.E.2d 114 (1980).

Evidence favorable to the State is to be considered as a whole in determining its sufficiency. State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982).

Only incriminating evidence need be considered upon defendant's motion as of nonsuit under this section, and contradictions in the inculpatory testimony and equivocations of some of the State's witnesses, which affects the weight or credibility of the evidence but not its competency, need not be taken into account in determining whether there is any competent evidence to sustain the allegations of the indictment. State v. Satterfield, 207 N.C. 118, 176 S.E. 466 (1934). See also State v. Moses, 207 N.C. 139, 176 S.E. 267 (1934).

Defendant's Evidence May Be Considered. - In considering a motion to dismiss made at the close of all the evidence, the defendant's evidence as well as the State's evidence may be considered. State v. Davis, 80 N.C. App. 523, 342 S.E.2d 530 (1986).

In reviewing a motion to dismiss at the conclusion of all the evidence, the court must consider any evidence presented by defendant which rebuts the inference of guilt, so long as it is not contradicted by any of the State's evidence. State v. Britt, 87 N.C. App. 152, 360 S.E.2d 291 (1987), cert. denied, 321 N.C. 475, 364 S.E.2d 924 (1988).

Defendant's Evidence Conflicting with State's Evidence Not Considered. - In considering a motion for judgment of nonsuit, evidence of the defendant which is favorable to the State is considered, but his evidence in conflict with that of the State is not considered. State v. Price, 280 N.C. 154, 184 S.E.2d 866 (1971); State v. Jacobs, 31 N.C. App. 582, 230 S.E.2d 550 (1976); State v. Banks, 31 N.C. App. 667, 230 S.E.2d 429 (1976), cert. denied, 292 N.C. 260, 233 S.E.2d 393 (1977); State v. Cooley, 47 N.C. App. 376, 268 S.E.2d 87, cert. denied and appeal dismissed, 301 N.C. 96, 273 S.E.2d 442 (1980).

In ruling on defendant's motions for nonsuit or for directed verdict of not guilty the trial judge must consider the State's evidence in the light most favorable to the State without considering the evidence of defendant in conflict therewith. State v. Alford, 289 N.C. 372, 222 S.E.2d 222, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976).

All of the evidence favorable to the State is considered, and defendant's evidence relating to matters of defense or defendant's evidence in conflict with that of the State is not considered. State v. McKinney, 24 N.C. App. 259, 210 S.E.2d 450 (1974), rev'd on other grounds, 288 N.C. 113, 215 S.E.2d 578 (1975); State v. Williams, 38 N.C. App. 138, 247 S.E.2d 630 (1978), cert. denied, 296 N.C. 108, 249 S.E.2d 807 (1979); State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980); State v. Bryant, 50 N.C. App. 139, 272 S.E.2d 916 (1980).

But Is Considered Where It Explains or Clarifies State's Evidence. - On a demurrer to the evidence only the State's evidence is to be considered, and the defendant's evidence is not to be taken into account, unless it tends to explain or make clear that offered by the State. State v. Oldham, 224 N.C. 415, 30 S.E.2d 318 (1944).

On a motion to nonsuit, the defendant's evidence which explains or makes clear the evidence of the State may be considered. State v. Blizzard, 280 N.C. 11, 184 S.E.2d 851 (1971); State v. Atwood, 290 N.C. 266, 225 S.E.2d 543 (1976).

In considering a motion under this section, the defendant's evidence, unless favorable to the State, is not to be taken into consideration, except when not in conflict with the State's evidence, it may be used to explain or make clear that which has been offered by the State. State v. Bryant, 235 N.C. 420, 70 S.E.2d 186 (1952); State v. Sears, 235 N.C. 623, 70 S.E.2d 907 (1952); State v. Roop, 255 N.C. 607, 122 S.E.2d 363 (1961); State v. Colson, 262 N.C. 506, 138 S.E.2d 121 (1964); State v. Jones, 280 N.C. 60, 184 S.E.2d 862 (1971); State v. Sallie, 13 N.C. App. 499, 186 S.E.2d 667, cert. denied, 281 N.C. 316, 188 S.E.2d 900 (1972); State v. Church, 43 N.C. App. 365, 258 S.E.2d 812 (1979); State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982).

In considering a motion for nonsuit lodged at the close of all the evidence, any portion of defendant's evidence which is favorable to the State and any portion of defendant's evidence which explains or clarifies the State's evidence is to be considered; thus by omitting defendant's evidence from the record on appeal, defendant would deprive the State of the benefit of such portions of defendant's evidence, which are entitled to consideration. State v. Paschall, 14 N.C. App. 591, 188 S.E.2d 521 (1972).

Or Where Not Inconsistent with State's Evidence. - On a motion for nonsuit, defendant's evidence which rebuts the inference of guilt may be considered when it is not inconsistent with the State's evidence. State v. Blizzard, 280 N.C. 11, 184 S.E.2d 851 (1971); State v. Atwood, 290 N.C. 266, 225 S.E.2d 543 (1976).

Defendant's evidence relating to matters in defense should not be considered on motion to nonsuit. State v. Avery, 236 N.C. 276, 72 S.E.2d 670 (1952); State v. Moseley, 251 N.C. 285, 111 S.E.2d 308 (1959).

Only the evidence favorable to the State will be considered, and defendant's evidence relating to matters of defense, or defendant's evidence in conflict with that of the State, will not be considered. State v. Henderson, 276 N.C. 430, 173 S.E.2d 291 (1970); State v. Coble, 24 N.C. App. 79, 210 S.E.2d 118 (1974).

Conflicting Evidence. - Where evidence is conflicting in a criminal case and where, considering the evidence in the light most favorable to the State, the jury might find the defendant guilty, a motion as of nonsuit is properly denied. State v. Carr, 196 N.C. 129, 144 S.E. 698 (1928).

Conflicts in State's Evidence. - When the substantive evidence offered by the State is conflicting - some tending to inculpate and some tending to exculpate the defendant - it is sufficient to repel a demurrer thereto. State v. Tolbert, 240 N.C. 445, 82 S.E.2d 201 (1954); State v. Green, 251 N.C. 40, 110 S.E.2d 609 (1959); State v. Gay, 251 N.C. 78, 110 S.E.2d 458 (1959); State v. Rogers, 252 N.C. 499, 114 S.E.2d 355 (1960).

Conflicts Resolved in State's Favor. - Upon a motion for judgment of nonsuit the evidence offered by the State must be taken in the light most favorable to the State and conflicts therein must be resolved in the State's favor, the credibility and effect of such evidence being a question for the jury. State v. Church, 265 N.C. 534, 144 S.E.2d 624 (1965).

The court must consider all of the evidence actually admitted in the light most favorable to the State, resolve any contradictions and discrepancies therein in the State's favor, and give the State the benefit of all reasonable inferences from the evidence. State v. Scott, 289 N.C. 712, 224 S.E.2d 185 (1976).

On a motion for nonsuit, the court considers all of the evidence actually admitted, whether from the State or defendant, in the light most favorable to the State, resolves any contradictions and discrepancies therein in the State's favor, and gives the State the benefit of all reasonable inferences from the evidence. State v. Strickland, 290 N.C. 169, 225 S.E.2d 531 (1976); State v. Aleem, 49 N.C. App. 359, 271 S.E.2d 575 (1980).

Contradictions and Discrepancies in Evidence Are for Jury to Resolve. - Contradictions and discrepancies, even in the State's evidence, are for the jury to resolve, and do not warrant nonsuit. State v. Carter, 265 N.C. 626, 144 S.E.2d 826 (1965); State v. Henderson, 276 N.C. 430, 173 S.E.2d 291 (1970); State v. Allred, 279 N.C. 398, 183 S.E.2d 553 (1971); State v. Bolin, 281 N.C. 415, 189 S.E.2d 235 (1972); State v. Sallie, 13 N.C. App. 499, 186 S.E.2d 667, cert. denied, 281 N.C. 316, 188 S.E.2d 900 (1972); State v. Holton, 284 N.C. 391, 200 S.E.2d 612 (1973); State v. Coble, 24 N.C. App. 79, 210 S.E.2d 118 (1974); State v. McKinney, 24 N.C. App. 259, 210 S.E.2d 450 (1974), rev'd on other grounds, 288 N.C. 113, 215 S.E.2d 578 (1975); State v. Carter, 289 N.C. 35, 220 S.E.2d 313 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3212, 49 L. Ed. 2d 1211 (1976); State v. Cox, 289 N.C. 414, 222 S.E.2d 246 (1976); State v. McCall, 289 N.C. 512, 223 S.E.2d 303, death sentence vacated, 429 U.S. 912, 97 S. Ct. 301, 50 L. Ed. 278 (1976); State v. Dangerfield, 32 N.C. App. 608, 633 S.E.2d 663, cert. denied, 292 N.C. 642, 235 S.E.2d 63 (1977); State v. Williams, 38 N.C. App. 138, 247 S.E.2d 630 (1978), cert. denied, 296 N.C. 108, 249 S.E.2d 807 (1979); State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980); State v. Smith, 300 N.C. 71, 265 S.E.2d 164 (1980); State v. Jenkins, 300 N.C. 578, 268 S.E.2d 458 (1980); State v. Owen, 51 N.C. App. 429, 276 S.E.2d 478 (1981), cert. denied, 305 N.C. 154, 289 S.E.2d 382 (1982); State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982); State v. Dow, 70 N.C. App. 82, 318 S.E.2d 883 (1984).

Ordinarily contradictions and discrepancies bear solely upon the weight to be given the testimony of a witness, a matter within the province of the jury. State v. Allred, 279 N.C. 398, 183 S.E.2d 553 (1971).

On demurrer to the evidence and motion to nonsuit, the evidence must be considered in the light most favorable to the State, and contradictions and discrepancies in the testimony of the State's witnesses are to be resolved by the jury. State v. Simpson, 244 N.C. 325, 93 S.E.2d 425 (1956); State v. Walker, 251 N.C. 465, 112 S.E.2d 61 (1960), cert. denied, 364 U.S. 832, 81 S. Ct. 45, 5 L. Ed. 2d 58 (1960).

Upon a motion for judgment of nonsuit, only the evidence favorable to the State is considered, and contradictions and discrepancies, even in the State's evidence, are matters for the jury and do not warrant nonsuit. State v. Murphy, 280 N.C. 1, 184 S.E.2d 845 (1971); State v. Rigsbee, 285 N.C. 708, 208 S.E.2d 656 (1974).

The conclusion of the court with respect to the sufficiency of the evidence is unaffected by defendant's contention that some of the State's evidence is contradictory and casts doubt on the credibility of the witnesses. Such contradictions and discrepancies are matters for the jury and do not warrant nonsuit. State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1977).

Contradictions and discrepancies in the testimony of the State's witnesses are to be resolved by the jury and, for the purposes of this motion, they are to be deemed by the court as if resolved in favor of the State. State v. LeDuc, 48 N.C. App. 227, 269 S.E.2d 220 (1980), rev'd on other grounds, 306 N.C. 62, 291 S.E.2d 607 (1982).

Contradictions and discrepancies in the evidence are for the jury to resolve and do not warrant dismissal. State v. Bruce, 315 N.C. 273, 337 S.E.2d 510 (1985).

And Do Not Warrant Granting Motion. - On motion for judgment of nonsuit the evidence must be considered in the light most favorable to the State and contradictions and discrepancies therein do not warrant the granting of the motion. State v. Jackson, 265 N.C. 558, 144 S.E.2d 584 (1965).

Discrepancies in the State's evidence will not justify the granting of a motion for nonsuit. State v. Moseley, 251 N.C. 285, 111 S.E.2d 308 (1959).

And Are Disregarded in Ruling on Motion. - For the purpose of ruling upon a motion for judgment as of nonsuit, the evidence for the State is taken to be true, every reasonable inference favorable to the State is to be drawn therefrom and discrepancies therein are to be disregarded. State v. Sellers, 289 N.C. 268, 221 S.E.2d 264 (1976); State v. Manuel, 291 N.C. 705, 231 S.E.2d 588 (1977); State v. Cooley, 47 N.C. App. 376, 268 S.E.2d 87, cert. denied and appeal dismissed, 301 N.C. 96, 273 S.E.2d 442 (1980); State v. Keller, 50 N.C. App. 364, 273 S.E.2d 741, appeal dismissed, 302 N.C. 400, 279 S.E.2d 354 (1981).

In considering a trial court's denial of a motion for judgment of nonsuit, the evidence for the State, considered in the light most favorable to it, is deemed to be true and inconsistencies or contradictions therein are disregarded. State v. Price, 280 N.C. 154, 184 S.E.2d 866 (1971); State v. Jacobs, 31 N.C. App. 582, 230 S.E.2d 550 (1976); State v. Banks, 31 N.C. App. 667, 230 S.E.2d 429 (1976), cert. denied, 292 N.C. 266, 233 S.E.2d 393 (1977); State v. Hyatt, 32 N.C. App. 623, 233 S.E.2d 649, cert. denied, 292 N.C. 733, 235 S.E.2d 786 (1977).

Upon a motion for judgment of nonsuit, the evidence for the State is taken to be true and the State is entitled to every reasonable inference which may be drawn therefrom, contradictions and discrepancies in the State's evidence are disregarded and the evidence of the defendant in conflict with that of the State is not taken into consideration. State v. Lampkins, 286 N.C. 497, 212 S.E.2d 106 (1975), cert. denied, 428 U.S. 909, 96 S. Ct. 3220, 49 L. Ed. 2d 1216 (1976); State v. Williams, 286 N.C. 422, 212 S.E.2d 113 (1975).

Any contradictions and inconsistencies, when in the State's evidence, are to be disregarded by the court in considering a trial court's denial of a motion for judgment as of nonsuit. State v. Williams, 31 N.C. App. 588, 229 S.E.2d 839 (1976), further review denied, 303 N.C. 712, 283 S.E.2d 138 (1981).

Both Competent and Incompetent Evidence Considered. - Incompetent evidence admitted is considered as if it were competent in considering a motion for nonsuit. State v. Bush, 289 N.C. 159, 221 S.E.2d 333, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976); State v. LeDuc, 48 N.C. App. 227, 269 S.E.2d 220 (1980), rev'd on other grounds, 306 N.C. 62, 291 S.E.2d 607 (1982).

Admitted evidence, whether competent or incompetent, must be considered in passing on defendant's motions for judgment as of nonsuit. State v. Virgil, 263 N.C. 73, 138 S.E.2d 777 (1964); State v. Walker, 266 N.C. 269, 145 S.E.2d 833 (1966); State v. Accor, 277 N.C. 65, 175 S.E.2d 583 (1970); State v. Holton, 284 N.C. 391, 200 S.E.2d 612 (1973).

All admitted evidence which is favorable to the State, whether competent or incompetent, must be taken into account and so considered by the court when ruling upon a motion for nonsuit. State v. Biggs, 289 N.C. 522, 223 S.E.2d 371 (1976); State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1977); State v. Stewart, 292 N.C. 219, 232 S.E.2d 443 (1977); State v. Barrow, 292 N.C. 227, 232 S.E.2d 693 (1977); State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980); State v. Jenkins, 300 N.C. 578, 268 S.E.2d 458 (1980); State v. Owen, 51 N.C. App. 429, 276 S.E.2d 478 (1981), cert. denied, 305 N.C. 154, 289 S.E.2d 382 (1982); State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982).

All of the evidence actually admitted, whether competent or incompetent, which is favorable to the State must be taken into account and must be so considered by the court in ruling upon the motion for directed verdict or for judgment of nonsuit. State v. Hunt, 289 N.C. 403, 222 S.E.2d 234, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976).

All of the evidence actually admitted, whether competent or incompetent, including that offered by defendant, if any, which is favorable to the State, must be taken into account and so considered by the court in ruling upon a motion for nonsuit. State v. Jones, 6 N.C. App. 712, 171 S.E.2d 17 (1969); State v. Jones, 32 N.C. App. 408, 232 S.E.2d 475 (1977).

In determining whether there is evidence sufficient for the judge to submit a case to the jury, all admitted evidence favorable to the State, whether competent or incompetent, must be considered and must be deemed true. State v. Riddle, 300 N.C. 744, 268 S.E.2d 80 (1980).

Improperly Admitted Evidence. - Upon the consideration of a motion for judgment of nonsuit, evidence for the State, even though improperly admitted, is taken into account. State v. Williams, 286 N.C. 422, 212 S.E.2d 113 (1975).

Evidence which is inherently impossible or in conflict with indisputable physical facts or laws of nature is not sufficient to take the case to the jury. State v. Cox, 289 N.C. 414, 222 S.E.2d 246 (1976).

Evidence as to Accomplices and Codefendants. - The evidence of accomplices is sufficient to carry the case to the jury and to justify a refusal of motion to nonsuit. State v. Rising, 223 N.C. 747, 28 S.E.2d 221 (1943).

The direct evidence of the guilt of one of the defendants and the circumstantial evidence as to the other's participation and guilt, is held sufficient to overrule their motions as of nonsuit. State v. Ammons, 204 N.C. 753, 169 S.E. 631 (1933).

Nonsuit May Not Be Based on Ground That Testimony Was Incredible. - Nonsuit may not be granted on the ground that the testimony of the State's witnesses was incredible and unworthy of belief, the credibility of the witnesses being for the jury and not the court. State v. Bowman, 232 N.C. 374, 61 S.E.2d 107 (1950); State v. Wood, 235 N.C. 636, 70 S.E.2d 665 (1952).

Evidence of Mere Opportunity to Commit Crime Insufficient. - Where the evidence for the State where the defendants are charged with fornication and adultery, shows no more than that the defendants had opportunities to commit the crime, on motion of the defendants, the action should be dismissed, and a verdict of not guilty, entered under this section. State v. Woodell, 211 N.C. 635, 191 S.E. 334 (1937).

When State's case must rest entirely on declarations made by defendant, and there is no evidence contra which does more than suggest a possibility of guilt or raise a conjecture, demurrer thereto should be sustained. In such case, the declarations of the defendant are presented by the State as worthy of belief, and when they are wholly exculpatory, the defendant is entitled to his acquittal. State v. Tolbert, 240 N.C. 445, 82 S.E.2d 201 (1954).

Defendant May Rely upon Complete Defense Made Out by State's Evidence. - It is axiomatic that when a complete defense is made out by the State's evidence, a defendant should be allowed to avail himself of such defense on a demurrer to the evidence under this section. This is true even when the exculpating evidence is in the form of statements of defendant offered in evidence by the State. State v. Tolbert, 240 N.C. 445, 82 S.E.2d 201 (1954).

Where State introduces declarations by defendant which present a complete defense while its evidence contra raises only a possibility of guilt, the defendant is entitled to acquittal upon his demurrer to the evidence. However, that the State, upon offering evidence of exculpatory declarations of a defendant, is not precluded from showing that the true facts differ from those related by the defendant and such conflicting evidence is sufficient to overcome a motion to dismiss. State v. Caudle, 58 N.C. App. 89, 293 S.E.2d 205 (1982).

Testimony by State witness that defendant made a declaration of innocence does not entitle defendant to judgment as of nonsuit, since such self-serving declaration does not rebut any proof by the State. State v. Baldwin, 226 N.C. 295, 37 S.E.2d 898 (1946).

When State Bound by Defendant's Extrajudicial Statement. - When the State introduced the defendant's extrajudicial statement, it was bound by what he said except insofar as it was contradicted and shown to be false. State v. Bolin, 281 N.C. 415, 189 S.E.2d 235 (1972).

Fingerprints of Accused. - Evidence given by a qualified expert that fingerprints found at the scene of a crime correspond with those of an accused, when accompanied by substantial evidence of circumstances from which the jury can find that such fingerprints could have been impressed only at the time the offense was committed, is sufficient to withstand a motion for nonsuit. State v. Reynolds, 18 N.C. App. 10, 195 S.E.2d 581 (1973); State v. Miller, 289 N.C. 1, 220 S.E.2d 572 (1975).

VII. INTRODUCTION OF TESTIMONY BY DEFENDANT AT TRIAL.

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Effect of Defendant Introducing Testimony at Trial. - By introducing testimony at the trial, a defendant waives his right to except on appeal to the denial of his motion for nonsuit at the close of the State's evidence. His later exception to the denial of his motion for nonsuit made at the close of all the evidence, however, draws into question the sufficiency of all the evidence to go to the jury. State v. McWilliams, 277 N.C. 680, 178 S.E.2d 476 (1971); State v. Jones, 296 N.C. 75, 248 S.E.2d 858 (1978); State v. Evangelista, 319 N.C. 152, 353 S.E.2d 375 (1987).

Where defendant introduced evidence, he waived his right to except on appeal to the denial of his motion for nonsuit at the close of the State's evidence. State v. Rigsbee, 285 N.C. 708, 208 S.E.2d 656 (1974); State v. Logan, 25 N.C. App. 49, 212 S.E.2d 236 (1975); State v. Stewart, 292 N.C. 219, 232 S.E.2d 443 (1977); State v. Barrow, 292 N.C. 227, 232 S.E.2d 693 (1977); State v. Lilly, 32 N.C. App. 467, 232 S.E.2d 495, cert. denied, 292 N.C. 643, 235 S.E.2d 64 (1977); State v. Lee, 33 N.C. App. 162, 234 S.E.2d 482 (1977); State v. Daniels, 51 N.C. App. 294, 276 S.E.2d 738 (1981); State v. Lilley, 78 N.C. App. 100, 337 S.E.2d 89 (1985), aff 'd, State v. Patrick, 88 N.C. App. 582, 364 S.E.2d 450 (1988); State v. Patrick, 88 N.C. App. 582, 364 S.E.2d 450 (1988); State v. Long, 37 N.C. App. 662, 246 S.E.2d 846 (1978); State v. Guy, 54 N.C. App. 208, 282 S.E.2d 560 (1981).

By introducing evidence after the denial of his motion for judgment of nonsuit, made when the State had rested its case, defendant waived the motion for dismissal which he made prior to the introduction of his evidence. State v. Prince, 270 N.C. 769, 154 S.E.2d 897 (1967); State v. Davis, 80 N.C. App. 523, 342 S.E.2d 530 (1986).

When the defendant offers evidence, he waives a motion for nonsuit lodged, either actually or by statute, at the close of the State's evidence and only the motion lodged at the close of all the evidence is considered. State v. Paschall, 14 N.C. App. 591, 188 S.E.2d 521 (1972).

Defendant's motions for nonsuit must be considered in light of all the evidence since he introduced evidence and thereby waived the motions made at the close of the State's evidence. State v. Allen, 279 N.C. 406, 183 S.E.2d 680 (1971).

When a defendant offers evidence after his motion for judgment as of nonsuit is overruled, he thereby waives all right to urge that denial as error upon appeal. State v. McLamb, 13 N.C. App. 705, 187 S.E.2d 458, cert. denied, 281 N.C. 316, 188 S.E.2d 899 (1972).

By introducing evidence defendant waived his motion to dismiss made at the close of the State's evidence, and having failed to renew his motion at the close of all evidence, defendant established no basis upon which to appeal denial of his motion. State v. Chambers, 53 N.C. App. 358, 280 S.E.2d 636, cert. denied, 304 N.C. 197, 285 S.E.2d 103 (1981).

By introducing evidence following denial of motion to dismiss made at the end of the State's case in chief, defendant waived the motion. State v. Melvin, 57 N.C. App. 503, 291 S.E.2d 885, cert. denied, 306 N.C. 748, 295 S.E.2d 484 (1982).

Motion Must Be Renewed. - A motion as of nonsuit upon the evidence will not be considered when it is not renewed after the conclusion of all the evidence as this section requires. State v. Helms, 181 N.C. 566, 107 S.E. 228 (1921); State v. Kiziah, 217 N.C. 339, 8 S.E.2d 474 (1940).

Exception to Denial of Motion. - Defendant's exception to the denial of his motion for nonsuit made at the close of all the evidence raises the question of the sufficiency of all the evidence to go to the jury. State v. Rigsbee, 285 N.C. 708, 208 S.E.2d 656 (1974); State v. Daniels, 51 N.C. App. 294, 276 S.E.2d 738 (1981).

Failure to Renew Motion After Introducing Testimony. - Where the defendant in a criminal action moves for the dismissal or for judgment as of nonsuit after the close of the State's evidence, and thereafter elects to introduce his own evidence, his failure to renew his motion after the whole evidence has been introduced is a waiver of his right to insist upon his first motion, and it is not subject to review in the Supreme Court on Appeal. State v. Hayes, 187 N.C. 490, 122 S.E. 13 (1924). See also State v. Hargett, 196 N.C. 692, 146 S.E. 801 (1929); State v. Chapman, 221 N.C. 157, 19 S.E.2d 250 (1942); State v. Epps, 223 N.C. 741, 28 S.E.2d 219 (1943); State v. Jackson, 226 N.C. 760, 40 S.E.2d 417 (1946).

Waiver of Motion. - Where defendant's motion to dismiss made at the close of the State's evidence was denied, and following the denial of the motion, he put on evidence in his own behalf, and no motion was made at the conclusion of all the evidence, defendant, therefore, waived his prior motion and cannot bring it forward as appealable error. State v. Harden, 42 N.C. App. 677, 257 S.E.2d 635 (1979).

The failure of a defendant to renew his motion for nonsuit at the close of all the evidence constitutes a waiver of his right to insist upon his first motion for nonsuit, and it is not subject to review in the Supreme Court. State v. Howell, 261 N.C. 657, 135 S.E.2d 625 (1964); State v. Fikes, 270 N.C. 780, 155 S.E.2d 277 (1967).

Having elected to offer evidence defendant waived her motion to dismiss at the close of the State's evidence, and proper consideration is thereafter upon her motion to dismiss made at the close of all the evidence. State v. Leonard, 300 N.C. 223, 266 S.E.2d 631, cert. denied, 449 U.S. 960, 101 S. Ct. 372, 66 L. Ed. 2d 227 (1980).

Where defendant introduced evidence at trial on his own behalf, he waived his right to complain on appeal of the denial of his initial motion to dismiss at the conclusion of the State's evidence. Accordingly, only the sufficiency of the evidence at the close of all of the evidence was before the court on appeal. State v. McElrath, 322 N.C. 1, 366 S.E.2d 442 (1988).

Under this section, a defendant who introduces evidence waives any motion for dismissal or nonsuit made prior to the introduction of his evidence and cannot urge the prior motion as ground for appeal. State v. Degree, 322 N.C. 302, 367 S.E.2d 679 (1988).

Waiver Not Affected by G.S. 15A-1227(d) or G.S. 15A-1446(d)(5). - Under this section, a defendant, by presenting evidence, has waived his right to assert the denial of his motion to dismiss at the close of the State's evidence as a ground for appeal. The provisions of G.S. 15A-1227(d) and 15A-1446(d)(5), allowing review on appeal of the sufficiency of the State's evidence in a criminal case without regard to whether the appropriate motion has been made, do not change this rule. State v. Mendez, 42 N.C. App. 141, 256 S.E.2d 405 (1979).