STATE
v.
Ernest OVERMAN.
No. 725.
Supreme Court of North Carolina.
June 15, 1962.*923 Atty. Gen. T. W. Bruton, Asst. Atty. Gen. Harry W. McGalliard, for the State.
Clarence Ross, B. F. Wood, Graham, and W. R. Dalton, for defendant appellant.
SHARP, Justice.
The defendant's plea of not guilty placed the burden upon the State to satisfy the jury beyond a reasonable doubt of every element of the offenses charged in the bill of indictment. Therefore, in order to convict the defendant on the first count which charged a violation of G.S. § 20-166 (a), it was necessary for the State to prove that on the occasion in question, the defendant was the operator of the 1957 two-tone green Chevrolet automobile which the State contended drove westerly down Stonewall Street between Delaware Avenue and Queen Anne Street; that this vehicle was involved in an accident or collision with Frank E. Nutley; and that knowing he had struck Nutley, the defendant failed to stop his vehicle immediately at the scene. State v. Ray, 229 N.C. 40, 47 S.E.2d 494.
To secure a conviction on the second count, which charged a violation of G.S. § 20-166(c), the State was required to prove that the defendant was the operator of a vehicle which had been involved in an accident or collision which resulted in injury to Frank E. Nutley; that defendant failed to give his name, address, operator's license number, and the registration number of his vehicle to Frank E. Nutley; that it was apparent that medical treatment was necessary to Frank E. Nutley but that defendant failed to render him reasonable assistance, including carrying him to a physician or surgeon for medical treatment. State v. Brown, 226 N.C. 681, 40 S.E.2d 34.
The State could not assume any one of the foregoing facts. "The rule is that the trial court in charging a jury may not give an instruction which assumes as true the existence or nonexistence of any material fact in issue." State v. Cuthrell, 235 N.C. 173, 69 S.E.2d 233.
The defendant not only contended that he was not the driver of the green Chevrolet which Frank E. Hatley testified collided with him, but he also contended that there was no collision between the boy and any automobile. He contended that the slight injuries the boy sustained necessitated no medical treatment and were so inconsequential that they could not have been inflicted by an automobile. He contended that the boy must have stumbled in one of the holes in the street and fallen with his bag of Pepsi-Colas when the automobile approached thereby causing the scratches and minor bruises he sustained.
However, the judge charged the jury as followsthose portions between the lines (O) and (P) being the subject of assignment of error No. 8.
"Now, I instruct you, this case presents nothing but a simple question of fact. It has been extensively argued to you, there has been a lot of evidence in the case that may or may not aid you in arriving at a verdict, (O) but if you find from this evidence and beyond a reasonable doubt that on this day the defendant was operating the automobile involved in the collision, striking this little boy on the highway, and that he knew he had hit him and failed to stop, it would be your duty to return a verdict of guilty on the first count in the Bill of Indictment. If you also find in addition to that beyond a reasonable doubt that he failed to give his name and address, render any aid or assistance or that he failed to see that the boy needed medical attention to take him to the doctor or determine if he needed hospitalization, it would be your duty to return a verdict of *924 Guilty on the second count. (P) If you have a reasonable doubt about it, you will return a verdict of Not Guilty."
From the foregoing, it appears that His Honor assumed that if defendant were the driver of the green Chevrolet automobile which went west on Stonewall Street at the time in question then (1) it collided with the boy and (2) that thereafter the boy needed medical attention. This was error.
Furthermore, when the trial judge undertook to apply the law to the evidence with reference to the first count, he told the jury that if they were satisfied beyond a reasonable doubt that the stated hypotheses were the facts it would be their duty to return a verdict of guilty as charged. However, he failed to give the converse or alternative view and to tell the jury that if they were not satisfied beyond a reasonable doubt that those were the facts, they would acquit the defendant. This likewise was error. State v. Alston, 228 N.C. 555, 46 S.E.2d 567. In his mandate with reference to the second count, he did give the alternative instruction.
It is noted that there is a fatal variance between the indictment and the proof on this record. The indictment charged in both counts that Frank E. Nutley was the person injured. The proof is that the person was Frank E. Hatley.
The defendant in a criminal action may raise the question of variance between the indictment and the proof by a motion of nonsuit. State v. Grace, 196 N.C. 280, 145 S.E. 399. The defendant in this case made a motion of nonsuit at the close of the State's evidence and again at the close of all the evidence. The motions were overruled. The motion for judgment of nonsuit should have been allowed with leave to the Solicitor to secure another bill of indictment if so advised. State v. Hicks, 233 N.C. 31, 62 S.E.2d 497.
However, the defendant did not assign the failure to allow his motion of nonsuit as error and, on this appeal, we cannot consider any of the questions which were raised by the motion for nonsuit. Rules 21 and 28, Rules of Practice in the Supreme Court of North Carolina. State v. Stantliff, 240 N.C. 332, 82 S.E.2d 84.
Since the case goes back for a new trial upon assignment of Error No. 8, we do not deem it necessary to consider the other assignments as those questions may not arise again.
New trial.
BOBBITT, J., concurs in result.