9 N.C. App. 62 | N.C. Ct. App. | 1970
The only exception brought forward by the defendant on this appeal is that the court committed error in failing to grant
However, he does contend that the court erred in not directing a verdict in his favor in that the State failed to prove the elements of the case in that the alleged purchaser of the narcotic drugs testified on direct examination for the State that he purchased the marijuana on 8 July 1969 and that he purchased the heroin on 11 July 1969, instead of the reverse as stated in the bills of indictment. We do not believe this is such a fatal variance as to require a new trial. G.S. 15-155 provides:
“No judgment upon any indictment for felony or misdemeanor, whether after verdict, or by confession, or otherwise, shall be stayed or reversed for .. . omitting to state the time at which the offense was committed in any case where time is not of the essence of the offense, nor for stating the time imperfectly, nor for stating the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or on a day that never happened; . . . .” (Emphasis added)
After a careful consideration of the record, it is our opinion that time was not of the essence in the present case and that the court below committed no prejudicial error.
No error.
