#### STATE v. JAMES LAW and MATTHEW KELLY.

(Filed 18 December, 1946.)

1. Intoxicating liquor § 8—

Where a vehicle is seized by a municipal police officer for illegal transportation of intoxicating liquor, the vehicle is in the custody of the officer or of the law and not the municipality. G. S., 18-6.

2. Indictment. § 9—

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.

3. Indictment § 30: Larceny § 4—

The indictment charged larceny of a vehicle the property of a municipality. The evidence tended to show that the automobile had been seized by a municipal police officer for illegal transportation of intoxicating liquor and placed by him in the municipal parking lot, and that the car 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 § 53a—

A fatal variance between an indictment and proof may be taken advantage of by motion to nonsuit, since in such instance there is no sufficient evidence to support the charge as laid in the indictment.

Appeal by defendants from *Rousseau, J.,*at July Term, 1946, of Forsyth.

Criminal prosecution on indictment charging the defendants, in one count, with the larceny of an automobile, of tbe value of $700.00, the property of the City of Winston-Salem; and, in a second count, with receiving said automobile, of the value of $700.00, the property of the City of Winston-Salem, knowing it to have been feloniously stolen or taken in violation of G. S., 14-71.

The record discloses that on the night of 15 April, 1946, Oscar Morrison, a police officer of the City of Winston-Salem, discovered an automobile on one of the city streets from which a 5-gallon container full of nontax-paid whiskey had just been taken and which had evidently been transported therein contrary to law. He took possession of the automobile, drove it to the city lot and parked it for the night.

The automobile was stolen from the city lot during the night, and there is evidence, circumstantial and presumptive, tending to connect the defendants with its disappearance.

The defendants offered no evidence.

Yerdict: Guilty as to each defendant.

*104Judgment: Imprisonment in the State’s Prison for not less tban 2 nor more tban 4 years as to botb defendants.

Defendants appeal, assigning errors, and relying chiefly upon tbeir motion to nonsuit.

*Attorney-General McMullan and Assistant Attorneys-General Bruton, Rhodes, and Moody for the State.*

*William II. Boyer, Sally J. Jackson, and H. Bryce Parker for defendants.*

Stacy, C. J.

Tbe question for decision is wbetber there is a fatal variance between tbe indictment and tbe proof. *Stare decisis*would seem to require an affirmative answer.

Conceding that tbe automobile in question, even if originally tbe property of one of tbe defendants, was tbe subject of larceny while in tbe custody of tbe officer who bad seized it under authority of law, still it does not follow that its ownership was properly laid in tbe City of Winston-Salem. Tbe City bad no property right in it, special or otherwise. Only tbe officer who seized tbe property was authorized to bold it, take and approve bond for its return “to tbe custody of said officer,” and to bold it subject to tbe orders of tbe court. G. S., 18-6. A conviction under tbe present bill would not perforce protect tbe defendants against another prosecution with tbe right to tbe property laid in tbe seizing officer or in tbe custody of tbe law. *S. v. Bell,*65 N. C., 313. Tbe City of Winston-Salem, no doubt, owns a number of automobiles, such as would fit tbe description in tbe bill, but none of these was stolen. “Tbe object of an indictment is to inform tbe prisoner with what be is charged, as well to enable him to make bis defense as to protect him from another prosecution for tbe same criminal act.” *S. v. Carlson,*171 N. C., 818, 89 S. E., 30.

Usually a fatal variance results, in larceny cakes, where title to tbe property is laid in one person and tbe proof shows it to be in another. *S. v. Jenkins,*78 N. C., 478. “In all cases tbe charge must be proved as laid.” *S. v. Bell, supra.*

Tbe question of variance may be raised by demurrer to tbe evidence or by motion to nonsuit. “It is based on tbe assertion, not that there is no *proof*of a crime having been committed, but that there is none which tends to prove that tbe particular offense charged in tbe bill has been committed. In other words, tbe proof does not fit tbe allegation, and, therefore, leaves tbe latter without any evidence to sustain it. It challenges tbe right of tbe State to a verdict upon its own showing, and asks that tbe court, without submitting tbe case to tbe jury, decide, as matter of law, that tbe State has failed in its *proof”*—Walker, *J.,*in *S. v. Gibson,*169 N. C., 318, 85 S. E., 7. To like effect are tbe decisions in *S. v.*
      *105
      *Weinstein,*224 N. C., 645, 31 S. E. (2d), 920; *S. v. Jackson,*218 N. C., 373, 11 S. E. (2d), 149; *S. v. Harris,*195 N. C., 306, 141 S. E., 883; *S. v. Harbert,*185 N. C., 760, 118 S. E.,*6; S. v. Nunley,*224 N. C., 96, 29 S. E. (2d), 17; *S. v. Davis,*150 N. C., 851, 64 S. E., 498; *S. v. Hill,*79 N. C., 656.

The present conviction will be set aside, the demurrer to the evidence sustained, and the solicitor allowed to send another bill, if so minded.

Reversed.