STATE of North Carolina
v.
Joseph WADDELL.
No. 12.
Supreme Court of North Carolina.
October 13, 1971.*645 Robert Morgan, Atty. Gen. by Myron C. Banks, Asst. Atty. Gen., for the State.
Jerry C. Wilson, High Point, for defendant appellant.
*646 HIGGINS, Justice.
The defendant by exceptive assignments, presents two questions for appellate review: (1) Did the court err in refusing to allow the motion to quash the indictment because of a variance between the charge and the proof? (2) Did the court err in denying the motion for a mistrial because of an unknown party's statement to the prospective juror (Hinson) before his acceptance on the trial panel?
The indictment was drawn under G.S. § 14-87 which makes it a felony for any person to take or attempt to take personal property from another, or from any place of business by the use or threatened use of a firearm or other dangerous weapon whereby the life of a person is endangered or threatened. State v. Parker, 262 N.C. 679, 138 S.E.2d 496.
The defendant objected to the indictment and moved to quash on the ground of variance between the allegation in the indictment which alleged that Brown was the owner and in charge of the Mart from which the property was forcibly taken and the evidence which disclosed that Don Kennedy owned the Mart. The indictment clearly alleged the defendant by the threatened use of a pistol "* * * (W)hereby the life of Jesse L. Brown was endangered and threatened * * * by violence did unlawfully and feloniously take and carry away personal property, to-wit, $261.21 * * * from the place of business known as 7 Day Mart where * * * Jesse L. Brown was in attendance, said money being the property of Jesse L. Brown, t/d/b/a (trading and doing business as) 7 Day Mart." The defendant cites as his authority for the motion the case of State v. Mull, 224 N.C. 574, 31 S.E.2d 764.
A motion to quash an indictment is in order when the purpose is to challenge its sufficiency to charge a criminal offense. A motion to dismiss is in order when the prosecution fails to offer sufficient evidence the defendant committed the offense charged. A variance between the criminal offense charged and the offense established by the evidence is in essence a failure of the State to establish the offense charged. However, we have treated the defendant's motion made in this case as a motion to dismiss for lack of evidence to go to the jury on the charge of armed robbery. State v. Barnes, 253 N.C. 711, 117 S.E.2d 849; State v. Cooper, 275 N.C. 283, 167 S.E.2d 266; State v. Vaughan et al., 268 N.C. 105, 150 S.E.2d 31.
Actually the Mull case on which defendant relies is good authority upon which to sustain a bill of indictment. "The gist of the offense, as thus alleged, is the accomplishment of the robbery by the use or threatened use of firearms. State v. Keller, 214 N.C. 447, 199 S.E. 620. Force or intimidation occasioned by the use or threatened use of firearms, is the main element of the offense. G.S. § 14-87; State v. Sawyer, ante, 224 N.C. 61, 29 S.E.2d 34; State v. Burke, 73 N.C. 83. `In such case it is not necessary or material to describe accurately or prove the particular identity or value of the property taken, further than to show it was the property of the person assaulted or in his care, and had a value.' People v. Nolan, 250 Ill. 351, 95 N.E. 140, 34 L.R.A.,N.S., 301, Ann.Cas. 1912B, 401; 46 Am.Jur. 154."
When tested by the rules approved in the Parker and Mull cases, and others therein cited, the indictment in this case contained all essential averments required by the statute. See also State v. Lynch, 266 N.C. 584, 146 S.E.2d 677. The motion to quash the indictment was properly overruled.
The trial judge did not commit error in refusing to order a mistrial on defendant's motion. Mr. Hinson and another were among those summoned for jury duty. They were in the courthouse ready to be called. Three men approached. One asked, "Are you on the jury?" and on receiving an affirmative answer the speaker said, "Don't find any Black Panthers guilty." Mr. Hinson did not know either *647 of the men and did not know any Black Panthers. However, after he was accepted on the trial jury he told the bailiff of the occurrence in the courthouse. The bailiff evidently reported the incident to the trial judge. Before the jury was selected, each juror was interrogated, including Mr. Hinson who stated he knew of no reason why he could not give the defendant a fair and impartial trial.
After the verdict, however, the court notified counsel and the post-verdict inquiry resulted. The showing was insufficient upon which to order a new trial. The general rule in this jurisdiction is succinctly stated in a number of our cases. "`Generally speaking neither the common law nor statutes contemplate as ground for a new trial a conversation between a juror and a third person unless it is of such a character as is calculated to impress the case upon the mind of the juror in a different aspect than (sic) was presented by the evidence in the courtroom, or is of such a nature as is calculated to result in harm to a party on trial. The matter is one resting largely within the discretion of the trial judge.' (Citing authorities.) Denial of such motion is equivalent to a finding by the trial judge that prejudicial misconduct has not been shown." State v. Sneeden, 274 N.C. 498, 164 S.E.2d 190. See also State v. Shedd, 274 N.C. 95, 161 S.E.2d 477; G.S. § 9-14; Strong's N.C. Index 2d, Criminal Law, Vol. 3, § 130, New Trial for Misconduct of or Affecting Jury, p. 52.
It is entirely proper for the trial judge to conduct an open inquiry into an attempt to influence a prospective juror in any case. The inquiry in this case, however, did not disclose whether the defendant was or was not a Black Panther, or whether he was or was not in sympathy with them. There is no evidence from which the court could conclude the incident before the jury was selected had any bearing on the verdict or in Mr. Hinson's participation in it. The cases cited, and others of like import, hold to the contrary. The cases relied on by the defendant do not support his contention. He cites as authority for the motion these cases: State v. Chamberlain, 263 N.C. 406, 139 S.E.2d 620; State v. Grayson, 239 N.C. 453, 80 S.E.2d 387; State v. Manning, 251 N.C. 1, 110 S.E.2d 474; State v. Carter, 233 N.C. 581, 65 S.E.2d 9; State v. Wagstaff, 235 N.C. 69, 68 S.E.2d 858. These cases do not offer support for a motion for a mistrial. Neither the cases cited, nor any others with which we are familiar appear to justify or authorize a mistrial on a showing so flimsy and nebulous as the occurrence which is the basis for Assignment of Error No. 2.
In the trial and judgment we find
No error.