We have said that a defendant must be convicted, if at all, of the particular offense charged in the bill of indictment. "Whether there is a fatal variance between the indictment and the proof is properly presented by defendant's motion to dismiss." State v. Cooper, 275 N.C. 283, 167 S.E.2d 266 (1969); State v. Bell, 270 N.C. 25, 153 S.E.2d 741 (1967). Thus the threshold question presented by this case is whether the offense charged conforms to the evidence elicited; that is, does the action of a physician in prescribing a controlled substance amount to a "sale or delivery" as proscribed by G.S. 90-95 (a)(1)? For the reasons which follow, we hold that it does not.
It has long been the law of this State that a defendant must be convicted, if convicted at all, of the particular offense charged in the warrant or bill of indictment. State v. Faircloth, 297 N.C. 100, 253 S.E.2d 890 (1979); State v. Cooper, 275 N.C. 283, 167 S.E.2d 266 (1969); State v. Lawrence, 264 N.C. 220, 141 S.E.2d 264 (1965); State v. Law, 227 N.C. 103, 40 S.E.2d 699 (1946). While evidence was adduced at trial that indicated that a basis existed upon which the State could have brought defendant to trial on a theory of rape based on Dollie Williams' age pursuant to N.C.G.S. 14-27.2(a)(1), defendant was not so charged. Having chosen forcible first-degree rape as its theory of prosecution and having brought defendant to trial, the State was bound to prove all of the material elements of that charge and could not rely on proof of rape pursuant to N.C.G.S. 14-27.2(a)(1).
Each of these motions raises a question as to whether the evidence is sufficient to submit the case to the jury and sustain a verdict of guilty. Such motions are tantamount to a motion for judgment as in case of nonsuit. State v. Greer, No. 560PA82 (N.C. S.Ct., 31 May 1983); State v. Cooper, 275 N.C. 283, 167 S.E.2d 266 (1969). It is elementary that in considering a trial court's denial of a motion for judgment of nonsuit, the evidence must be considered in the light most favorable to the State and the State must be given the benefit of every reasonable inference to be drawn from the evidence.
As a result of this decision we must address the question of whether there was sufficient evidence to warrant submitting this case to the jury and to sustain the jury's verdict of guilty. The defendant's motion to dismiss for insufficiency of the evidence is tantamount to a motion for nonsuit. State v. Cooper, 275 N.C. 283, 167 S.E.2d 266 (1969). Such a motion "in a criminal case requires a consideration of the evidence in the light most favorable to the State, and the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom."
The question presented by the motion is whether there is sufficient evidence to send the case to the jury and to support a verdict of guilty of the charged offense. State v. Cooper, 275 N.C. 283, 167 S.E.2d 266 (1969); State v. Stewart, 292 N.C. 219, 232 S.E.2d 443 (1977). Initially, we note that there is ample evidence that defendant Brown by the use or threatened use of a deadly weapon took money in the amount of $300 from David Pruett against his will and by putting him in fear.
It has long been the law of this state that a defendant must be convicted, if convicted at all, of the particular offense charged in the warrant or bill of indictment. State v. Cooper, 275 N.C. 283, 167 S.E.2d 266 (1969); State v. Lawrence, 264 N.C. 220, 141 S.E.2d 264 (1965); State v. Law, 227 N.C. 103, 40 S.E.2d 699 (1946); State v. Jackson, 218 N.C. 373, 11 S.E.2d 149, 131 A.L.R. 143 (1940). It is also settled that a fatal variance between the indictment and proof is properly raised by a motion for judgment as of nonsuit or a motion to dismiss, since there is not sufficient evidence to support the charge laid in the indictment.
A motion to dismiss will be treated the same as a motion for judgment of nonsuit. State v. Cooper, 275 N.C. 283, 167 S.E.2d 266 (1969). Such motion requires the trial judge to consider the evidence in the light most favorable to the State and to give the State the benefit of every reasonable inference to be drawn therefrom.
As used in G.S. 15-173, there is no difference in legal significance between a "motion to dismiss" and a motion "for judgment as in case of nonsuit." See State v. Cooper, 275 N.C. 283, 167 S.E.2d 266 (1969). The rule to be applied when considering whether the State has introduced sufficient evidence to withstand a motion for nonsuit is well settled in this jurisdiction.
The Motion to Dismiss and the Motion for a Directed Verdict of not guilty presented the question of whether the evidence was sufficient to warrant its submission to the jury and to support a verdict of guilty of the offense charged in the indictment. State v. Cooper, 275 N.C. 283, 167 S.E.2d 266. These Motions have the same legal effect as a Motion for Judgment in case of nonsuit. State v. Glover, 270 N.C. 319, 154 S.E.2d 305.
The question presented by defendant's motion to dismiss was whether the evidence was sufficient to warrant its submission to the jury and to support a verdict of guilty of the criminal offense charged in the indictment." State v. Cooper, 275 N.C. 283, 167 S.E.2d 266. [10-12] An accused's possession of narcotics may be actual or constructive.