CLARK, C. J., dissenting; CLARKSON, J., concurring in the dissenting opinion. Criminal prosecution, tried upon an indictment charging the defendant with the larceny of an automobile.
From an adverse verdict and judgment of three years in the State's Prison, the defendant appealed, assigning errors. The bill of indictment charges the defendant with the larceny of "one automobile, owned by and in the possession of Frank Rosenberg." All the evidence on the record shows that the stolen automobile was owned by and in the possession of Mrs. Elsie Rosenberg. There is no evidence that Mrs. Elsie Rosenberg was the wife of Frank Rosenberg, or that she was related to him, or in any way associated with him. The suggestion that if all the evidence had been sent up, it might have shown Frank Rosenberg to be the husband of the prosecuting witness, and therefore, in possession of the car as bailee, merits no serious consideration at our hands. This is only a surmise. Maybe it would and maybe not. Cases are to be determined here upon the record. S. v. Wheeler, ante, 670.
There is a fatal variance between the indictment and the proof. This was conceded on the argument by the Assistant Attorney-General, Mr. Nash, who always presents his cases with great frankness and candor; and the only question for our decision is whether the defendant may take *Page 800 advantage of this defect by his exception to the overruling of his motion for judgment as of nonsuit. We think he can, for there was a (762) total failure of proof. Speaking to this question in S. v. Gibson, 169 N.C. 322, Walker, J., said:
"You cannot amend an indictment — at least, against the will of the defendant. You must abide by its terms, and prove the charge as it is laid in the bill. A variance cannot be taken advantage of by motion in arrest of judgment. S. v. Foushee, 117 N.C. 766; S. v. Ashford,120 N.C. 588; S. v. Jarvis, 129 N.C. 698. It is waived if there is no objection to it before the verdict is rendered, as those cases show. But a motion to nonsuit is a proper method of raising the question as to a variance. It is based on the assertion, not that there is no proof of a crime having been committed, but that there is none which tends to prove that the particular offense charged in the bill has been committed. In other words, the proof does not fit the allegation, and, therefore, leaves the latter without any evidence to sustain it. It challenges the right of the State to a verdict upon its own showing, and asks that the court, without submitting the case to the jury, decide as matter of law that the State has failed in its proof." See. also, S. c., 170 N.C. 697.
In all criminal prosecutions the defendant has a constitutional right to be informed of the accusation against him; and it is a rule of universal observance in administering the criminal law that a defendant must be convicted, if convicted at all, of the particular offense charged in the bill of indictment. "The allegation and proof must correspond. It would be contrary to all rules of procedure and violative of his constitutional right to charge him with the commission of one crime and convict him of another and very different one. He is entitled to be informed of the accusation against him and to be tried accordingly." Walker, J., in S. v.Wilkerson, 164 N.C. 444, citing as authority for the position: S. v. Ray,92 N.C. 810; S. v. Sloan, 67 N.C. 357; S. v. Lewis, 93 N.C. 581; Clark's Cr. Proc. 150. See, also, S. v. Snipes, ante 743, and cases there cited.
In S. v. Davis, 150 N.C. 851, the defendant was charged with obtaining a clay-bank mare by means of a false pretense as to the qualities of a "sorrel horse," and the proof was that he obtained the clay-bank mare in exchange for a bay "saddle horse." This was held to be a material variance, Hoke, J., saying that "under the authorities there would seem to be a clear case of variance between the allegation and the proof, and the jury should have been so instructed." The charge related to one trade and the proof to another. Again it was held to be a fatal variance in S. v. Hill 79 N.C. 656, "where the defendant was charged with injuring a cow, and the proof was that the animal injured was an ox." See, *Page 801 also, S. v. McWhirter, 141 N.C. 809; S. v. Miller, 93 N.C. 511; S. v.Corbitt, 46 N.C. 264.
The trial court should have sustained the defendant's motion and dismissed the indictment, but this will not prevent a conviction (763) upon another bill charging the defendant with the larceny of an automobile, the property of Mrs. Elsie Rosenberg.
The present verdict will be set aside, the action dismissed, and the solicitor allowed to send another bill, if so advised.
Reversed.