State v. . Hooper

Denny, J. The exceptions to the refusal of his Honor to grant the defendant’s motion for judgment as of nonsuit, on the ground that the evidence is insufficient to support a verdict of guilty of burglary in the first degree, cannot be sustained. It is not necessary that the intended felony be committed in order to establish the crime of burglary. The question is : Wh.at was the intent of the defendant at the time of the breaking and entry? Evidence as to the conduct of the defendant after the breaking and entry may be considered by the jury in ascertaining the intent of the accused at the time of the breaking and entry. But where there is a breaking and entry into the dwelling house of another, in the nighttime, with the intent to commit a felony therein, the crime of burglary is consummated, even though the accused by reason of unexpected resistance or the outcry of his intended victim, may abandon his intent to commit the felony. S. v. Allen, 186 N. C., 302, 119 S. E., 504; S. v. McDaniel, 60 N. C., 245; S. v. Boon, 35 N. C., 244. The defendant assigns as error the following portion of his Honor’s charge: “If you return a verdict of not guilty as to burglary in the first degree and not guilty of attempt to commit burglary in the first degree, you will then consider whether or not the defendant is guilty of burglary in the second degree, the burden being on the State to so satisfy you, that the defendant broke and entered the dwelling house of the prosecuting witness, Mrs. Julia Phillips, with a felonious intent to commit rape, and that it was not then and there occupied by her as a dwelling house, and in the nighttime, and you so find beyond a reasonable doubt, the burden being on the State to so establish, then the Court charges you that you may in such event render a verdict of guilty of burglary in the second *635 degree even though you find facts sufficient to constitute burglary in the first degree; therefore, in this case the defendant is entitled as a matter of right to have you gentlemen consider whether he is guilty of burglary in the second degree, if you deem it proper to do so, or not guilty.” Later in the charge his Honor said: “You have a right, gentlemen of the jury, to render a verdict of guilty of burglary in the second degree in this case although the evidence may tend to show that the building was actually occupied as sleeping quarters by the prosecuting witness and it was in the nighttime, and that the breaking and entering was for a felonious purpose and intent and that it was in the nighttime.” We think the above instructions may have been confusing to the jury. All the evidence on this record tends to show that the apartment of the prosecuting witness was actually occupied at the time of the alleged burglarious entry. And, there is no evidence to support a verdict of burglary in the second degree as defined by the statute, G. S., 14-51. Ordinarily when the evidence tends to show the defendant is guilty of the more serious offense charged in the bill of indictment, a charge on the lesser degrees of the crime will not be. held for error. S. v. Wise, 225 N. C., 746, 36 S. E. (2d), 230. But here we think his Honor may have misled the jury into believing that their right to bring in a verdict of guilty of burglary in the second degree, as authorized by statute, G. S., 15-171, was dependent upon the finding of certain facts as set forth in the charge on burglary in the second degree. Moreover, the later instruction, as set forth above, relative to the right of the jury to bring in a verdict of guilty of burglary in the second degree, notwithstanding the evidence tended to show that the building was occupied, etc., does not comply fully with the provisions- of the statute, G. S., 15-171. The statute gives the jury the right to render a verdict of guilty of burglary in the second degree, not only where the evidence tends to shew certain facts, but, “upon the finding of facts sufficient to constitute burglary in the first degree as defined by the statute — if they deem it proper so to do.” This instruction is mandatory. S. v. McLean, 224 N. C., 704, 32 S. E. (2d), 227. For the reasons herein stated there must be a new trial, and it is so ordered. New trial.