...Crossing — Indictment — Variance — Arrest of Judgment in Supreme Court. 1. An indictment charging a railroad company with obstructing a public road by the use of plank at a crossing is fatally defective if it does not charge the manner of the misuse of the plank, as plank may be used for such a purpose. 2. It is fatal variance in an.... 3. Judgment will be arrested in the Supreme Court if the indictment is defective, although no motion in arrest was made in the court below...from those proven. The indictment charged one offense, that proven was, in substance, as to the constituent fact, a distinct and different one. In such case, the court should direct the jury to render...

...officer that he did not like the defendant and suggesting some sort of "personal vendetta." 2. Narcotics 2 — indictment charging possession of heroin — no fatal variance There was no fatal variance in an indictment which...the offense, trafficking. Defendant alleges that this constitutes a fatal variance. However, G.S. 15A-924(a)(6) clearly mandates that such an omission does not constitute grounds for reversal of a...mandates that such an omission does not constitute grounds for reversal of a conviction. 3. Constitutional Law 67 — exclusion of questions leading to identity of informant — no error In...

...court held that there was no fatal variance in an indictment for breaking and entering when the indictment described the building as being owned and operated by a corporation while evidence showed...immediately identified him as the person they saw run from them. 4. Burglary and Unlawful Breakings 3.1 — description of premises — no fatal variance between indictment and proof In a...of not guilty and a motion for a new trial. He argues that there is a fatal variance between the allegations in the indictment that the home broken into and entered was occupied by Elvin Kitchens and...

...cumulatively. Accordingly, we hold that the trial court's evidentiary rulings did not rise to the level of prejudicial error or plain error. V. Variance in the Indictment In her fifth argument, defendant contends that there was a fatal variance between the indictment against her and the proof offered at trial. We disagree. A. Standard of Review We review the issue of a fatal variance in an indictment...fact, they haven't submitted anything specific as to even close to that amount in their -- in their charging instrument. "A variance occurs where the allegations in an indictment, although they may be sufficiently specific on their face, do not conform to the evidence actually established at trial." State v. Norman, 149 N.C. App. 588, 594, 562 S.E.2d 453, 457 (2002). However, "[a] variance is not material, and is therefore not fatal, if...amount of $38,627, as alleged in the indictment, is indeed a variance. However, because it does not concern an essential element of the charges, this variance is not fatal to the indictment and the...

...: there was a fatal variance between indictment and proof. Where an indictment in a criminal prosecution charges the defendant with having fraudulently obtained goods...same, and there is a fatal variance between the indictment and proof, and the defendant's demurrer to the evidence will be sustained in the Supreme Court on appeal. C. S., 4643.... STACY, C. J. The defendant was indicted under one statute and convicted under another. The two are not the same. There is a fatal variance between the indictment...

...with whom the victim was "caused" to commit sodomy. The use of "caused," as opposed to "engaged in," in this context was not a fatal variance. See Morris v. Commonwealth, 33 Va. App. 664, 668, 536 S.E.2d 458, 460 (2000) (finding the difference between the terms "adjudicated" and "determined" did not create a fatal variance in an indictment for.... We agree with the Commonwealth. "An indictment need not be drafted in the exact words of the applicable statute so long as the accused is given notice of the nature and...). While a party must aver an affidavit that requested writings and/or objects are material, nothing in the Rules suggest this statement by a party is binding on the court or non...

.... Forgery — Indictment — Variance. Where in the purport clause of the indictment the instrument is charged to be the act of Gay Simpson and when the instrument is set out according to its tenor, it appears to be signed by Mayer and Simpson, the variance is fatal in an indictment.... An examination of the indictment discloses that it is insufficient. The pleader attempted to set out the alleged forged instrument according to its purport and tenor. In the purport clause the..., between the purport and tenor clauses, and is fatal to the indictment. Campbell v. State, 32 S.W. Rep., 899; Fite v. State, 34 S.W. Rep., 921; Stephens v. State, 37 S.W. Rep., 425; Gibbons v. State, 37...

...forgery in the first degree. 1. The trial court did not err in denying appellant's motion for a directed verdict of acquittal based on an alleged fatal variance in the indictment.... Time was not made a material element of the offense charged and the state proved that the offense occurred within the statute of limitation prior to the return of the indictment...err in denying Ms. King's motion for a directed verdict based on the grounds that the state failed in carrying the burden of proof. We have examined the entire transcript and find that the state did...

...— Variance To be fatal, a variance between the allegations in an indictment or information and the proof offered at trial must be material and prejudicial.... 3. Indictment and Information — Variance Where uniform traffic ticket, which served as information, alleged that defendant travelled 40 miles per hour in a 25-mile-per-hour zone...in an indictment or information and the proof offered at trial must be material and prejudicial. State v. Lamelle, 133 Vt. 378, 381...

...review a trial court's ruling on a motion to dismiss based upon an alleged fatal variance in an indictment de novo. State v. Call,349 N.C. 382, 424..., 508 S.E.2d 496, 522 (1998). “Where an indictment charges the defendant with a crime against someone other than the actual victim, the variance is fatal.” State v. Abraham,338...variance where there was a “slight discrepancy between the corporate name given in the indictment [American Cleaners Corporation, a corporation doing business as Holiday Cleaners] and the name given by an employee...

...asserts that: (1) the court erred in enhancing his punishment because the evidence was insufficient to sustain an enhancement allegation in the indictment; (2) there was a fatal variance between an enhancement allegation in the indictment and...in Harris County in 1971 as alleged in the indictment and that the proof was at fatal variance with the indictment because it showed the prior conviction was had in the 184th District Court of Harris County. The Court, in expressly overruling Corley and Morman and relying on Arce v. State, supra, and Bray v. State, supra, wrote: "Although Arce was an indictment...alleged in the indictment. On motion for rehearing, Judge Davidson stated: "The variance between the two numbers is apparent. A conviction in Cause No...

...incarceration in the Shelby County Correctional Center. The Court of Criminal Appeals concluded that a fatal variance existed between the allegations of the indictment and the proof at trial respecting the...and prejudicial. A variance between an indictment and the proof in a criminal case is not material where the allegations and proof substantially correspond, the variance is not of a character which...determinative of such questions. The policy now followed in this and in most other jurisdictions is that before a variance will be held to be fatal it must be deemed to be material...

...— no fatal variance There was no fatal variance in an embezzlement case because the indictment placed ownership of the embezzled funds in "The Provident Finance Company" and the evidence placed...verdict at the close of State's evidence. As ground for his motion defendant argued a fatal variance between the indictment and proof. The indictment placed ownership of the embezzled funds in the "Provident Finance Company." Evidence educed at trial placed ownership of the funds in the "Provident Finance Company of Henderson, Inc." Defendant contends the difference in names constitutes a fatal variance. We disagree. In an indictment..."embezzlement and conversion" — proof of misapplication — no fatal variance There was no fatal variance between indictment and proof where the indictment alleged that defendant did "embezzle and convert to...

...was taken therefrom by defendants during the night. Held: There is a fatal variance between charge and proof in that the vehicle was not the property of the municipality. 4. Indictment § 19: Criminal Law § 52a — A fatal variance between an indictment...their motion to nonsuit. STACY, C. J. The question for decision is whether there is a fatal variance between the indictment and the proof. Stare decisis would seem to require an affirmative answer. Conceding that the automobile in question...automobiles, such as would fit the description in the bill, but none of these was stolen. "The object of an indictment is to inform the prisoner with what he is charged, as well to enable him to make his defense as to protect him from another prosecution for the same criminal act." S. v. Carlson, 171 N.C. 818, 89 S.E. 30. Usually a fatal variance results, in larceny...

...correct legal title holder of a vehicle must be alleged in an information or indictment. We so conclude since in prosecutions for theft of an automobile, no fatal variance is created by an indictment..., which is particularly applicable to the instant case, we find no merit in defendant's contention that there was a fatal variance as to the proof adduced at trial when viewed in respect to the allegations...which alleges ownership in a person who assigned title to an insurance company rather than alleging ownership in the insurance company, in that defendant could show no prejudice either in the sense...

...trial did not constitute a material variance under the circumstances presented in this case. The material (fatal) variance rule protects a defendant against misidentifications and improper notice in an indictment which...variance. See, House v. State, 380 So.2d 940 (Ala. 1979), reversing, 380 So.2d 938 (Ala.Cr.App.), and cases therein cited. In this case, the appellant could not have been misled by the language in the indictment alleging an escape...indictment is void or because there was a material variance between the indictment and the proof at trial. We disagree. Appellant's contention that an indictment charging a third-degree...

....'" Thus, there would be a fatal variance in proof if the prosecution failed to prove "an unnecessarily minute description of a necessary fact" required to be alleged in an indictment, but there would...that the problem of sufficiency of an indictment is usually inextricably tied to the problem of variance of proof from the wording of the indictment. For example, in a post- DePalma case...not be a fatal variance of allegata et probata if the prosecution failed to prove "an unnecessary description of an unnecessary fact." We have the same two problems tied together in the instant case...

...conviction of criminal attempt to commit burglary is the contended material, hence fatal, variance between the allegation in the indictment of an "attempt to force door open causing burglar alarm to sound...statutory changes in the criminal law, we question overly-technical applications of the fatal variance rule but can not reach that issue because it is not presented in this case." (Emphasis...which the fatal variance rule, as construed by the courts, is designed to offer protection. The verdict was authorized by the evidence, and the trial judge did not err in overruling the motion for a...

...where the money was taken and that the money was owned by the motel. The trial judge erroneously ruled that this was a fatal variance. The Courts of this state have repeatedly held that if the person from whom goods are stolen holds them in trust for his employer, such person has a special ownership in the goods, and an indictment which... BYERS, Judge. The trial judge, pre-trial, quashed the indictment in this case on the basis of a fatal variance. The state...trial judge dismissed the one in this case rather than pursue an appeal. There would have been no double jeopardy problem created by such action. The indictment alleged the...

.... II The appellant also contends that there is a fatal variance between the crimes charged in the indictments and the verdicts returned by the jury. A fatal variance between an indictment and...300 (Ala. 1986) (a fatal variance does not exist merely because the word "murder" was used in the jury verdict rather than the words "intentional killing" as used in the indictment). Moreover, during...a jury verdict occurs when the language in the indictment and the judgment charge different crimes and the variance between the two...