State v. Perry, 416

• Decision Date: 03 November 1965
• Docket Number: No. 416,416
• Citation: 265 N.C. 517,144 S.E.2d 591
• Parties: STATE of North Carolina v. Arthur Lewis PERRY.
• Court: North Carolina Supreme Court

Page 591

144 S.E.2d 591

265 N.C. 517

STATE of North Carolina v. Arthur Lewis PERRY.

No. 416.

Supreme Court of North Carolina.

Nov. 3, 1965.

Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Ralph Moody, and Staff Attorney Andrew A. Vanore, Jr., Raleigh, for the State.

McKissick & Burt, by M. C. Burt, Jr., Durham, for defendant appellant.

PARKER, Justice.

Both counts in the indictment charge defendant with burglary in the first degree, a violation of G.S. § 14-51. G.S. § 14-52 provides that any person convicted, according to due course of law, of the crime of burglary in the first degree shall suffer death, with a proviso that if the jury when rendering its verdict in open court shall so recommend, the punishment shall be imprisonment for life in the State's prison, and the court shall so instruct the jury.

It is a well-settled rule of practice with us, as provided in G.S. § 15-170, that '[u]pon the trial of any indictment the prisoner may be convicted of the crime charged therein or of a less degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a less degree of the same crime.'

From the common law concept of burglary a number of statutory crimes associated with burglary have evolved, e. g., G.S. § 14-54, breaking into or entering houses otherwise than burglariously. 35 N.C.Law Review 98. The statutory offense set forth in G.S. § 14-54 is a less degree of the offense of burglary in the first degree set forth in the indictment and as defined in G.S. § 14-51. State v. Allen, 186 N.C. 302, 119 S.E. 504; State v. Chambers, 218 N.C. 442, 11 S.E.2d 280. Defendant by and through his counsel in open court, as authorized by the well-settled rule of practice in this jurisdiction, entered a plea of guilty to feloniously breaking and entering a dwelling house other than burglariously, a violation of G.S. § 14-54, and the sentence of imprisonment imposed was within the statutory limit set forth in G.S. § 14-54 for the commission of the felony to which defendant pleaded guilty. See also G.S. § 14-72; State v. Cooper, 256 N.C. 372, 124 S.E.2d 91.

Defendant assigns as error 'that the court erred in accepting a plea of guilty in view of the fact that the defendant was not represented by counsel during the interrogation procedure,' in violation of his right to due process guaranteed to him by the Constitutions of North Carolina and of the United States. The record discloses the following according to the testimony of Sergeant Rominger of the detective division of the Winston-Salem Police Department: 'That on Monday, April 5th around 10:30 A.M. he walked in the Detective's Office and wanted to see him and wanted to know if he was hunting for him and he said, 'yes.' That he said 'what do you want to tell me.' He said, 'about the incident at Wake Forest.' That he said, 'Arthur, if you are involved you should call your attorney--you don't have to make any statement to me.' I said, 'there is the telephone you can use it to call anybody you want to,' and he said, 'no, I want to tell you what happened.'' Whereupon, defendant made a statement which tended not to incriminate him, but to exonerate him.

According to defendant's brief, he is 'a young adult Negro.' When he entered his plea of guilty, he had full knowledge of all circumstances relating to his conduct in this case. There is nothing in the record to indicate that he is not a person of competent intelligence. There is no contention in defendant's brief that his trial lawyer was not able and competent. There is nothing in the record to indicate that defendant's plea of guilty was not freely and voluntarily, and understandingly and intelligently entered. Apparently, defendant's trial counsel and defendant at the time he entered the plea of guilty were of the opinion, in light of the fact that he was charged with capital offenses, that the entry of the plea of guilty of a felonious breaking and entry of a dwelling house otherwise than burglariously, which was a violation of G.S. § 14-54 and for which violation the punishment could not exceed imprisonment for more than ten years, was to defendant's advantage and we cannot say that this was not the wiser course. State v. Wilson, 251 N.C. 174, 110 S.E.2d 813. Under the facts here it does not appear that defendant's constitutional right to due process was violated by the court's acceptance of his plea of guilty as set forth above.

W. H. Byrd, a special police officer at Wake Forest College, testified that about 3 a. m. on 30 March 1965 police officers examined the glove compartment of a car parked on the Wake Forest College campus and found therein a 1964 automobile registration card. Defendant assigns as error the admission of this testimony, because there is no evidence that the officers had a search warrant, or that the defendant consented to the search. This assignment of error is overruled. By pleading guilty, the defendant waived his right to attack the legality of the search and seizure. 21 Am.Jur.2d, Criminal Law, § 495, pp. 484-85; 22...