STATE v. WILLIAM D. KIMBALL, 261 N.C. 582

Sharp, J. G.S. 148-45 (

a) makes it unlawful for any prisoner serving a sentence in the State prison system to escape or attempt to escape, and provides varying penalties for misdemeanants and felons. By

Chapter 681 of the Session Laws of 1963, the legislature added subsection (

b) as follows: “(

b) Any defendant convicted and in the custody of the North Carolina Prison Department and ordered or otherwise assigned to work under the work-release program, G.S. 148-33.1, or any convicted defendant in the custody of the North Carolina Prison Department and on a temporary parole by permission of the State Board of Paroles or other authority of law, who shall fail to> return to the custody of the North Carolina Prison Department, shall be guilty of the crime of escape and subject to the provisions of subsection (

a) of this

section and shall be deemed an escapee. For the purpose of this subsection, escape is defined to include, but is not restricted to, wilful failure to return to an appointed place and at an appointed time as ordered.” This section, while providing the same penalties listed in subsection (

a) creates a new and distinct offense which can only be committed by a work-release prisoner or a convicted defendant temporarily on parole. The indictment in this case follows the language of subsection (a), but the evidence discloses a violation of subsection (b). However, the defendant did not move for the nonsuit to which he was entitled for this fatal variance. State v. Hicks, 233 N.C. 31, 62 S.E. 2d 497. Upon the argument here, defendant moved in arrest of judgment for that he had been indicted under G.S. 148-45 (

a) but tried under G.S. 148-45 (b). A motion in arrest of judgment must be based on defects appearing on the face of the record proper. It may not be used after verdict as a substitute for a motion for nonsuit to dismiss the action because of a variance between the indictment and proof or for want of sufficient evidence to support the verdict. State v. Reel, 254 N.C. 778, 119 S.E. 2d 876; State v. McKnight, 196 N.C. 259, 145 S.E. 281. Therefore, the motion in arrest of judgment is overruled.

The defendant assigns as error the following portion of his Honor’s charge: “. . . (T)he court instructs you that if you find the facts to be in this case as all the evidence tends to show beyond a reasonable doubt, then it will be your duty, Members of the Jury, to return a verdict in this case of guilty.” By voluntarily going to Gastonia without permission defendant was, on his own statement, guilty of a violation of G.S. 148-45 (b). However, he was indicted for a breach of G.S. 148-45(a).

Therefore, his Honor committed error by peremptorily instructing the jury to find defendant guilty if it found the facts to be as all the evidence tended to show. The evidence, if true, did not establish his guilt as charged. Defendant was entitled to a directed verdict of not guilty. Aside from the fundamental error in the quoted instruction, its form impels the following observation: Where the uncontradicted evidence, if true, establishes a defendant’s guilt as a matter of law, the court may instruct the jury to return a verdict of guilty if it finds such evidence to be true beyond a reasonable doubt. State v.

Johnson, 195 N.C. 657, 143 S.E. 185. In such instance the approved form of instruction is that ■it would be the jury’s duty to return a verdict of guilty as charged if the State has satisfied the jury beyond a reasonable doubt that all the evidence in the case is true (or that the facts in the case are as all the evidence tends to show); otherwise, it would be its duty to return a verdict of not guilty. State v. Baker, 229 N.C. 73, 48 S.E. 2d 61; State v. Taylor, 236 N.C. 130, 71 S.E. 2d 924; Cf. State v. Gibson, 245 N.C. 71, 95 S.E. 2d 125; State v. Hayden, 224 N.C. 779, 32 S.E. 2d 333.

The credibility of the evidence is always for the jury and the judge may never declare that all the evidence tends to show any fact beyond a reasonable doubt. G.S. 1-180. For the error in the charge there must be a new trial. However, the solicitor will no doubt desire to take a nol pros in this case and to prosecute defendant for the offense of which the evidence tends to establish his guilt. New trial.