337 S.E.2d 518 (N.C. 1985), 653A84, State v. Fields
|Citation:||337 S.E.2d 518, 315 N.C. 191|
|Party Name:||STATE of North Carolina v. Anthony Dale FIELDS.|
|Case Date:||December 10, 1985|
|Court:||Supreme Court of North Carolina|
[Copyrighted Material Omitted]
Lacy H. Thornburg, Atty. Gen. by Christopher P. Brewer, Asst. Atty. Gen., Raleigh, for the State.
Robert A. Hassell, Raleigh, for defendant.
[315 N.C. 194] Defendant presents this Court with nine arguments. The first six of these challenge the sufficiency of the evidence supporting defendant's convictions for armed robbery, murder in the first degree on the theories of premeditated and deliberate murder, felony murder based on felonious breaking or entering, larceny, and burglary in the second degree. Defendant's remaining arguments concern evidentiary and sentencing issues. We find that the trial court erred only in refusing to quash the indictment for burglary in the second degree and in denying defendant's motion to dismiss that charge. All other assignments of error we find to be without merit.
Defendant first challenges the indictment and charge of burglary in the second degree. He contends that a shed that houses tools, garden equipment, nonperishable food, and a freezer and that is located at least forty-five feet from the dwelling is not within the curtilage of the dwelling house. We find that, under the facts of this case, defendant's point is well taken: the shed from which he and his companions stole a chain saw and splitting maul was not within the curtilage of the dwelling and therefore was not protected by the burglary statute, N.C.G.S. 14-51.
The curtilage is the land around a dwelling house upon which those outbuildings lie that are "commonly used with the dwelling house." State v. Twitty, 2 N.C. 102 (1794). Differentiating buildings that lie within the curtilage, which can be burglarized, from those outside it, which cannot, has been a troublesome exercise for the courts, one which is necessarily repeated with each case like the one before us. However, with each iteration of the exercise, two themes consistently emerge: the function of the building and its proximity to the dwelling house.
Under the common law, houses or buildings within the curtilage that were used as part of the dwelling, such as smokehouses and pantries, were protected by the prohibition against burglary. State v. Foster, 129 N.C. 704, 40 S.E. 209 (1901). The question whether a building was part of the dwelling rested upon whether it served the "comfort and convenience" of the dwelling.
But the law throws her mantle around the dwelling of man, because it is the place of his repose, and protects not only [315 N.C. 195] the house in which he sleeps, but also all others appurtenant thereto, as parcel or parts thereof, from meditated harm; thus the kitchen, the laundry, the meat or smoke house, and the dairy are within its protection; for they are all used as parts of one whole, each contributing in its way to the comfort and convenience of the place as a mansion or dwelling.
State v. Langford, 12 N.C. 253, 253-54 (1827).
The curtilage test rested not merely upon the building's use, but upon its convenience. Thus proximity was a second, supplementary 1 guide to whether the protection of the burglary law extended to a particular building. If a building, even one that served the daily needs of the homeowner, was so distant from the dwelling house that an intrusion did not disturb the repose of those in the dwelling house, then that intrusion was not burglary.
[T]he law protects from unauthorized violence the dwelling-house and those which are appurtenant, because it is the place of the owner's repose; and if he choose to put his kitchen or smokehouse so far from his dwelling that his repose is not likely to be disturbed by the breaking into it at night, it is his own folly.
State v. Jake, 60 N.C. 471, 473 (1864).
In 1889 the burglary law was modified to provide that it was burglary in the second degree to commit the crime in an unoccupied dwelling house or a building within its curtilage or in any other unoccupied building with a sleeping compartment. Because, under these circumstances, none was present to hear the entry, the potential for disturbed repose as a measure of appurtenance survived only in the abstract. Nevertheless, the visual and auditory proximity of outbuildings that serve the comfort and convenience of the homeowner is still a useful theoretical measure of whether those buildings lie within or beyond the curtilage.
Applying this theoretical yardstick to the facts of this case, it is clear that the outbuilding "used to house and secure tools and [315 N.C. 196] other items of personal property," as specified in the burglary indictment of defendant, does not immediately serve the comfort and convenience of those who inhabit the dwelling house. 2
It is well to remember that the law of burglary is to protect people, not property. If the intrusion is into a place where people are present, 3 then burglary in the first degree has been committed. If the intrusion is into a place where it is likely that the repose of one of the household would be disturbed if one were present (but is not), then burglary in the second degree has been committed. The indictment for burglary in the second degree that specified that defendant broke into and entered an unoccupied toolshed at nighttime with felonious intent was defective and should have been quashed. Likewise, the trial court was remiss in not dismissing charges of burglary in the second degree based upon that indictment.
We accordingly arrest the judgment upon the conviction of burglary in the second degree.
In addition, because defendant's conviction for burglary in the second degree cannot stand, we likewise vacate defendant's conviction for felony murder committed during the perpetration of that felony.
Defendant takes two lines of attack on his convictions of felony murder based upon being committed in the perpetration of felonious breaking or entering and felonious larceny with the use of a deadly weapon. First, defendant insists that Fisher's death did not occur during the perpetration of the larceny, but after its [315 N.C. 197] completion. Second, he suggests that if a deadly weapon is not actually used to effectuate the underlying felony, then the state cannot rely upon its mere presence in order to invoke the felony murder rule. We find neither argument persuasive.
Defendant contends that by the time Fisher arrived on the Carter property, defendant and his companions had ceased all criminal activity, including the larceny of the chain saw and maul. The test for whether the felony and the murder are so connected as to invoke the felony murder rule was articulated by this Court in State v. Hutchins, 303 N.C. 321, 345, 279 S.E.2d 788, 803 (1981):
A killing is committed in the perpetration or attempted perpetration of a felony for purposes of the felony murder rule where there is no break in the chain of events leading from the initial felony to the act causing death, so that the homicide is part of a series of incidents which form one continuous transaction.
If Fisher's being shot had been an isolated event, one unrelated to the thefts from the toolshed or to the aborted inspection of the Carter home by defendant's companion Collins or to Fisher's apprehension of defendant and the others, then the killing could not be felony murder. But the time, place, and cause of the shooting were all well within the scope of the larceny. The interconnectedness of events, indeed even their causal interrelationship, is obvious. We are as incredulous as Fisher himself apparently was of defendant's protestation that he and the others had just abandoned their felonious activities coincidentally the very moment Fisher arrived on Carter property.
The similarity of the facts in State v. Thompson, 280 N.C. 202, 185 S.E.2d 666 (1972), superseded on other grounds by statute, and State v. Davis, 305 N.C. 400, 290 S.E.2d 574 (1982), to those in the case now before us is illuminating on this point. In Thompson, one accomplice had already left with some stolen goods, and the other left after the defendant told him that he had everything he wanted. The defendant then went back upstairs and shot the victim. This Court determined that, under such circumstances, "the killing resulted from and was the culmination of defendant's course of criminal conduct while engaged in the perpetration of felonious breaking and entering and felonious larceny." 280 N.C. at 213, 185 S.E.2d at 673. The events in the case [315 N.C. 198] at bar are even more contiguous than those in Thompson. Fisher's arrival can be viewed as a break in the chain of events only insofar as his arrival interrupted the...
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