State v. Allen

• Decision Date: 24 October 1923
• Docket Number: 241.
• Parties: STATE v. ALLEN.
• Court: North Carolina Supreme Court

119 S.E. 504

186 N.C. 302

STATE v. ALLEN.

No. 241.

Supreme Court of North Carolina

October 24, 1923

Appeal from Superior Court, Franklin County; Cranmer, Judge.

James Allen was convicted of first degree burglary and he appeals. New trial.

Under a burglary indictment charging actual commission of a designated felony, defendant may be convicted of such felony a less degree of the same crime, or an attempt to commit it or a less degree, though the state fails to prove the burglary.

Criminal prosecution tried upon an indictment charging the defendant with burglary in the first degree. The initial count in the bill is as follows:

"That James Allen, late of the county of Franklin, on the 13th day of April, in the year of our Lord, 1923, with force and arms, at and in the county aforesaid, feloniously and burglariously, did break and enter, on or about the hour of 12 in the night of the said day, the dwelling house of one A. B. Allen there situate, and then and there actually occupied by the said A. B. Allen, his wife, and family with the felonious intent, he the said James Allen, to forcibly and violently ravish and carnally know Mrs. A. B. Allen, a female occupying and sleeping in said dwelling house at the time, without her consent and against her will, against the form of the statute in such case made and provided, and against the peace and dignity of the state."

There is also a second count in the bill charging a felonious and burglarious breaking and entering of the occupied dwelling house of A.

B Allen, in the nighttime, with intent to commit the crime of larceny therein, but the case was not tried upon this count.

There is evidence on the record tending to show that the defendant entered the dwelling house of A. B. Allen in the town of Louisburg, some time after 11 o'clock on the night of April 13, 1923, by rasing a window in one of the rooms, and putting a stick of wood under it to hold it up. After entering the house and some time during the night the defendant crawled under the bed in which Mr. and Mrs. Allen were sleeping; and thereafter the following happened according to the testimony of Mrs. Allen:

"I was awakend that night, but I do not know at just what time. The first thing that awoke me was an ice cold hand, and I almost jumped off the bed. The hand went back when I jumped, and in about a minute the hand came back again. That time it dawned on me it was not Mr. Allen. I was laying flat on my back, with my left hand under my head, and my right hand down by my side. I reached out with my right hand, and found that Mr. Allen's hand was warm. While I was reaching out for Mr. Allen, the hand came up the third time. I tried to whisper to my husband, fearing we would all be butchered. The ice cold hand was under the bed covering, and touched my flesh above my knees, three times to my knowledge."

The defendant was convicted of burglary in the first degree and sentenced to death. He is a colored boy, 18 or 19 years of age. He testified that he was in a drunken condition during the night in question, and did not know what he was doing. He entered a plea of not guilty to the charge.

The defendant requested the court to charge the jury that before he could be convicted of burglary in the first degree, on the initial count in the bill, it would be necessary for the state to show an intent on his part to accomplish his purpose notwithstanding any resistance made by Mrs. Allen. This was refused, the court stating that an intent generally to commit a felony was sufficient. Defendant excepted.

From the verdict and judgment rendered, the defendant appealed, assigning errors.

Clark C.J., dissenting.

W. H. Yarborough, Jr., E. H. Malone, Wm., Y. Bickett, and J. E. Malone, Jr., all of Louisburg, for appellant.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

STACY, J. (after stating the facts as above).

Burglary, at common law, was the breaking and entering of the "mansion house," or the dwelling house, of another, in the nighttime, with intent to commit a felony therein, whether such intent were executed or not. State v. Langford, 12 N.C. 253; State v. Willis, 52 N.C. 190; 4 R. C. L. 415; 9 C.J. 1009. It was among the few cases, if not the only one, where crime in the highest degree was not dependent upon the execution of the felonious intent. The purpose of the law was to protect the habitation of men, where they repose and sleep, from meditated harm. And such was the law of burglary in this state until the passage of the Act of 1889, now C. S. § 4232, by which the crime was divided into two degrees, first and second, with certain designated differences between the two, and with different punishments prescribed therefor. State v. Foster, 129 N.C. 704, 40 S.E. 209; C. S. § 4233. Now, under our statute, the first degree is where the crime is committed "in a dwelling house, or in a room used as a sleeping apartment in any building, and any person is in the actual occupation of any part of said dwelling house or sleeping apartment at the time of the commission of such crime, it shall be burglary, in the first degree." Second. "If such crime be committed in a dwelling house or sleeping apartment not actually occupied by any one at the time of the commission of the crime, or if it be committed in any house within the curtilage of a dwelling house or in any building not a dwelling house, but in which is a room used as a sleeping apartment, and not actually occupied as such at the time of the commission of the crime, it shall be burglary in the second degree."

But it is not enough in an indictment for burglary to charge generally an intent to commit "a felony" in the dwelling house of another. The particular felony which it is alleged the accused intended to commit must be specified. People v. Nelson, 58 Cal. 104; Portwood v. State, 29 Tex. 47, 94 Am. Dec. 258; State v. Doran, 99 Me. 329, 59 A. 440, 105 Am. St. Rep. 278. The felony intended, however, need not be set out as fully and specifically as would be required in an indictment for the actual commission of said felony, where the state is relying only upon the charge of burglary. It is ordinarily sufficient to state the intended offense generally, as by alleging an intent to steal the goods and chattels of another then being in said dwelling house, or to commit therein the crime of larceny, rape, or arson. State v. Staton, 133 N.C. 643, 45 S.E. 362; State v. Ellsworth, 130 N.C. 690, 41 S.E. 548; State v. Tytus, 98 N.C. 705, 4 S.E. 29; State v. Christmas, 101 N.C. 755, 8 S.E. 361. But it is necessary, in order that the charge may be certain, to state the particular felony, which it is claimed the accused intended to commit. State v. Buchanan, 75 Miss. 349, 22 So. 875; State v. Celestin, 138 La. 407, 70 So. 342.

The actual commission of the intended felony, however, is not essential to the crime of burglary. State v. Beal, 37 Ohio St. 108, 41 Am. Rep. 490. This is completed or consummated by the breaking and entering of the dwelling house of another, in the nighttime, with the immediate, requisite intent then and there to commit a designated felony therein, though, after entering the house, the accused may forsake his intent to commit the felony through fear, or because he is resisted. State v. McDaniel, 60 N.C. 245; Warren v. State, 103 Ark. 165, 146 S.W. 477, Ann. Cas. 1914B, 698. Indeed, burglary in the first degree, under our statute, consists of the intent, which must be executed, of breaking and entering the presently occupied dwelling house or sleeping apartment of another, in the nighttime, with the further concurrent intent, which may be executed or not, then and there to commit therein some crime which is in law a felony. This particular, or ulterior, intent to commit therein some designated felony, as aforesaid, must be proved in addition to the more general one, in order to make out the offense. State v. Meche, 42 La. Ann. 273, 7 So. 573. The crucial question in regard to the ulterior intent, in an indictment for burglary, is: What was the prisoner's intent at the time of the breaking and entry? The offense against the habitation is complete when the burglarious breaking and entering of the dwelling house or sleeping apartment of another, in the nighttime, is effected or accomplished with the intent to commit a felony therein, though that intent may be subsequently abandoned, and the intended felony is not committed. Conners v. State, 45 N. J. Law, 340. Hence it is no defense to an indictment for burglary that the ulterior felonious intent was abandoned after the breaking and entry. State v. Boon, 35 N.C. 244, 57 Am. Dec. 555.

Three elements at common law were necessary to constitute the crime of rape, to wit, carnal knowledge, force, and the commission of the act without the consent or against the will of the ravished. State v. Jim, 12 N.C. 142; 22 R. C. L 1172. By our statute, C. S. § 4204, rape is defined as the "ravishing and carnally knowing any female of the age of twelve years or more by force and against her will," with the further statement as to what constitutes rape when the female is under that age. State v. Marsh, 132 N.C. 1000, 43 S.E. 828, 67 L. R. A. 179. So, under the charge of a felonious and burglarious breaking and entering of the presently occupied dwelling house or sleeping apartment of another, in the nighttime, with intent to commit the crime of rape upon the person of any female therein, it is necessary, before the prisoner can be convicted of burglary in the first degree, to show the requisite, specific intent on his part, at the time of the breaking and entry, of gratifying his passions on the person of the woman, and that he intended to do so, at all events, notwithstanding any...