Court of Appeals of North Carolina, 1972

State v. Phillips

State v. Phillips
Court of Appeals of North Carolina · Decided August 2, 1972 · Graham, Parker, Vaughn
15 N.C. App. 597; 190 S.E.2d 433; 1972 N.C. App. LEXIS 1986

State v. Phillips

Opinion of the Court

GRAHAM, Judge.

Defendant contends that there was a fatal variance between the indictment and proof in that the indictment charged that the narcotics in question were mescaline capsules and the proof was that they were lysergic acid diethylamide (LSD). It is true that one of the State’s witnesses identified the capsules in question as containing LSD. However, another witness for the State testified without objection that they were mescaline. Therefore, there was evidence from which the jury could find the narcotics in question to have been the exact substances described in the indictment. Defendant did not except to the court’s charge as to what it was necessary for the jury to find in order to find defendant guilty as charged in the bill of indictment. For these reasons we overrule defendant’s conten*599tion and do not decide whether a fatal variance would be present if all of the State’s evidence had been that the capsules found in defendant’s possession were LSD and not mescaline as stated in the bill of indictment.

Defendant also contends that neither mescaline nor lysergic acid diethylamide is a narcotic drug. This contention is without merit. Provisions of the Narcotic Drug Act in effect at the time of defendant’s arrest and trial define “Narcotic drugs” to include “mescaline” and “lysergic acid diethylamide,” as well as other psychedelic or hallucinogenic drugs. G.S. 90-87 (9) (Supp. 1969).

No error.

Judges Parker and Vaughn concur.

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