State v. Foster
| Decision Date | 23 December 1901 |
| Citation | 40 S.E. 209,129 N.C. 704 |
| Parties | STATE v. FOSTER et al. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Buncombe county; Moore, Judge.
Ben Foster and others were convicted of burglary, and appeal. Affirmed.
Where burglars broke into a store, and, with loaded revolvers pointed at the clerk, drove him before them into his sleeping room, opening off of the store,--the door between being open,--and there stole his revolver and purse, such entry into the room was a technical breaking into the sleeping apartment, and the crime was burglary in the first degree, as declared by Laws 1889, c. 434.
Thos Settle and N.W. Brown, for appellants.
Frank Carter and Brown Shepherd, for the State.
The defendants are indicted and convicted of burglary in the first degree. The facts are substantially as follows: D. J McClelland is the owner of a store at a place called "Emma," a few miles from the city of Asheville, in the county of Buncombe. Samuel H. Alexander is his clerk, and had been for more than three years boarding in the family of McClelland and sleeping in the store. There was a room in said store building fitted up and furnished with a bed and other furniture, as a sleeping apartment, in which said Alexander kept his trunk and other belongings, and slept there, and had done so regularly for three years or more. On the night of the 8th of February, 1901, he closed and fastened all the windows and outer doors of said store building, and between 8 and 9 o'clock he went into his bed room, but, thinking some customer might come, and not being ready to retire, he left a lamp burning in the store room. There was a partition wall between his sleeping room and the storeroom, in which there was a doorway and a shutter; but the shutter was rarely ever closed, and was not closed that night. Soon after he went into his sleeping room he heard a noise at one of the outer doors of the store building, and, thinking it was some one wanting to trade, he went to the door and asked who was there when some one answered that he wanted to come in,--wanted some coffee and flour. He then took down the bar used in securing the door, unlocked the same, and when he had opened the door about 12 inches,--still having the knob in his hand,--two men forced the door open, rushed in the house, covered him with pistols, and told him to hold up his hands; that they had come for business. With the pistols still drawn upon him, they marched him into his bed room, where they searched him and the things he had in the room, taking his pistol and other things. They then carried him into the store room, and made an effort to break into the post-office department; there being a post office kept there. But, not succeeding readily in getting into this, they abandoned it for the present, saying they supposed there was nothing in it except postage stamps, and they would attend to them later. They then turned their attention to an iron safe, and compelled him to assist in opening it; one of them still holding his pistol on him. After the safe was open and one of them going through it, taking what money and other valuables he found, a cat made a noise in the back part of the store, and the man with the pistol bearing on him turned his attention to that; and, as he did so, Alexander seized his own pistol they had taken from his room, and which the man who was robbing the safe had laid on the end of the counter, and shot the man robbing the safe, and also shot the other man; but in the meantime the man whose attention had been attracted by the cat shot Alexander. They were all badly shot, but none of them died. We have made this summary from the testimony of Alexander, who was the only witness examined as to the facts; neither of the prisoners going upon the witness stand, and there being no other witness to the transaction. There were two other persons (Henry Mills and R. S. Gates) indicted as being present, aiding and abetting in committing the crime, and tried at the same time with Ben Foster and Frank Johnston, who were charged as principals. They were all convicted of burglary in the first degree, and, the sentence of death being pronounced upon them, they all appealed to this court.
There are several exceptions, but all of them that seem to require discussion resolve themselves into one question, and that is the only question pressed upon the argument in this court. Indeed, the learned counsel for the prisoners stated in his argument that the case turned upon this one point. That is this: That under chapter 434, Laws 1889, changing the law, and establishing two degrees in the crime of burglary, a party cannot be convicted of burglary in the first degree for breaking into a store house where there is a bed room, and one regularly sleeps there, unless there is a breaking and entering into the bed room. This is an important question, and it is singular that it has not before been pressed or called to the attention of the court. The case of State v. Pearson, 119 N.C. 871, 26 S.E. 117, was called to our attention by the state, but it does not seem to be authority upon the point discussed in this case. Therefore no case was cited and we are unable to find any, that decides, or even discusses, the point made in this case, and it devolves upon us to construe this statute.
Burglary at common law was the breaking and entering a dwelling house in the nighttime with a felonious intent. And this was the law of burglary in this state until the passage of the act of 1889. In this definition were included houses used as a part of the dwelling, such as smokehouses and pantries within the curtilage. It was not the fact alone that they were within the curtilage that made it burglary to break into and enter them, but it was the fact that they were used as a part of the dwelling, as well as being within the curtilage. A store house or a workshop, though within the curtilage, was not such a house as would make one guilty of burglary to break and enter at night with a felonious intent. State v Jenkins, 50 N.C. 430; State v. Langford, 12 N.C. 253. Indeed, to break and enter a store house, in which no one slept, with intent to steal, was not a criminal offense at common law, nor in this state until made so by statute. State v. Dozier, 73 N.C. 117. But it was held in England and in this state that a store house, or any other house in which one regularly slept, was a dwelling house, and one upon which burglary might be committed. State v. Williams, 90 N.C. 724, 47 Am. Rep. 541; State v. Outlaw, 72 N.C. 598. It is thus seen that it is not the fact that it is a store house that makes it a house in which burglary may be committed, but it is the fact that some one regularly or habitually sleeps there that makes it a dwelling house. And the law was the same as to any other house in which one regularly or habitually slept. This discussion of the law of burglary in England and in this state prior to the act of 1889 was necessary to enable us to put a construction upon that act. It is an act to "change the law in relation to the crime of burglary." It divides the crime into two degrees,--first and second. The first is punished with death, and the second degree with imprisonment in the penitentiary for life, or a less term, at the discretion of the court. ...
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