State v. Christmas

• Citation: 8 S.E. 361,101 N.C. 749
• Court: United States State Supreme Court of North Carolina
• Decision Date: 19 December 1888
• Parties: State v. Christmas.

8 S.E. 361

(101 N.C. 749)

State

v.Christmas.

Supreme Court of North Carolina

December 19, 1888

1. BURGLARY—Evidence.

On the trial of an indictment, under Code N. C. § 996, for feloniously entering a dwelling-house in the day-time, with intent to steal, the evidence showed that money had been stolen; that defendant had been frequently in the house; that he was seen about the place where the money was kept; that he was found concealed in the house; and that he had on his person a key that unlocked the drawer in which the money was kept. Held, that the evidence warranted a judgment of conviction.

2. Same—Indictment—Separate Offenses.

In an indictment under said section, the entering the house with " intent to commit a felony or other infamous crime therein" constitutes the gravamen of thecharge, and hence a bill charging an "intent to steal the goods, chattels, and money of T. B. Lyman, and also with intent to steal the goods, chattels, and money of Mrs. Anna W. Lyman, " did not charge two distinct offenses.

3. Same—Evidence—Concealment in House.

Concealment in the house not being the only evidence of defendant's guilt, the court properly refused to charge " that the fact that the prisoner was concealed in a room in a house is no evidence that he entered it with the intent to commit any particular felony. "

Appeal from superior court, Wake county; Avery, Judge.

Indictment against one Christmas for feloniously entering a dwelling-house with intent to steal. Defendant appeals from a judgment of conviction.

Batahelor & Devereux, for appellant. The Attorney General, for the State.

Davis, J. The indictment charged the defendant with feloniously entering the dwelling-house of T. B. Lyman, in the day-time, with intent to steal "the goods, chattels, and money of him, the said T. B. Lyman, and also the goods, chattels, and money of Anna M. Lyman, in the said dwelling-house, then and there being, " etc. The following is a summary statement of so much of the case on appeal as is necessary to a proper consideration of the exceptions to the ruling of the court below. Miss Lancashire, a witness for the state, testified, among other things, that she lived at the house of Bishop T. B. Lyman; was there on the 28th of July last, and on that day "found the defendant standing behind the door in an unoccupied bedroom. * * * His head was turned towards the crack of the door. He was behind a box. " The defendant is a carpenter, and has worked in almost every room in the house, and had worked there some part of every month since August, 1887. The room in which he was, was on the second floor. Mrs. Lyman's room was 10 or 15 feet from where he was, and its position was well known to the defendant. The witness went to A. B. Andrews, and called for a policeman. On her return she told defendant that he could not go; that some money was missing. He said that there was 25 cents due him, and he had come to collect it, and see if there was any more work for him. The testimony of the witness tended further to show that the defendant had been upstairs before; that Mrs. Lyman kept her money in a bureau drawer in her bedroom. About a fortnight before she had found the defendant upstairs at the head of the steps, near the door. Upon cross-examination, the witness said that it was some hours after day-light; that the door of the unoccupied room was wide open; that the defendant used to go upstairs constantly; that Mrs. Lyman generally paid him for his work; sometimes witness paid him. He was paid by Mrs. Lyman once on the landing, near her bedroom door. Witness had seen him inside Mrs. Lyman's room for the purpose of getting paid for his work. The witness testified that servants had access to the rooms, and, upon redirect examination, she said the defendant had been paid off and discharged. Mrs. Lyman was introduced as a witness, and the solicitor proposed to prove by her "that about the time the defendant had been employed as a carpenter, and had had access to the upper rooms of her house, money was missing from the drawer in her bedroom upstairs, —with the view of having this testimony connected with further facts hereafter to be shown by the witness; that the key to the upper drawer of the bureau standing in the passage upstairs was missing about the same time; and the fact, to be proved by another witness, that a key was found on the person of the defendant when arrested that unlocked the drawer in her room in which she kept her money. This evidence was objected to by the defendant, objection overruled, and defendant excepted. " The witness then testified to having missed money. Had missed it twice before. To having paid the defendant money, and that there was a key to the bureau in the passage, which was missed; and that she found that the key to her bureau drawer unlocked the drawers of the bureau in the passage; and that the policeman "pulled out a key when he arrested the defendant, "that unlocked her drawer, and looked like the lost key of the passage bureau; that she did not owe the defendant 25 cents; and that the money lost was her separate property. The witness was cross-examined in regard to missing money, and testified that servants were in her room every day to clean up, dust, etc., and that she frequently went out and left them in the room, and that she kept money in her bureau drawer, and frequently left it unlocked. J. D. Thompson, (policeman,) a witness for the state, testified that he arrested the defendant, and, on searching, found a bunch of keys, one of which unlocked the upper drawer of the bureau in Mrs. Lyman's room. The key also unlocked the drawers of a bureau in defendant's house, as he ascertained upon trial, at defendant's request. "After the testimony for the state was closed, the defendant moved to exclude the testimony referred to in the exception as stated, on the ground that the solicitor had failed to offer the testimony then proposed to be offered in connection with the loss of money by Mrs. Lyman. The solicitor had, in the mean time, offered the testimony of Mrs. Lyman that, when she left, she did not recollect whether she took the key outside the drawer in the passage bureau, and put it in the bunch given Miss Lancashire, or left it in the drawer. Miss Lancashire testified that, soon after Mrs. Lyman left, she hunted for said key, and did not find it in the bunch of keys given her by Mrs. Lyman, or in the drawer where it belonged. Policeman Thompson testified that he found a key on the person of defendant when arrested, and it fitted the drawer where Mrs. Lyman kept her money, as testified to by her. The court refused to exclude the testimony which had been admitted. " The defendant then testified in his own behalf. His testimony sent up with the record purports to explain his reasons for being at the house of Bishop Lyman; his conduct while there; the facts connected with the key, etc.; and, if believed, fully rebutted all the evidence tending to show his guilt.

The defendant asked the court to give a number of instructions to the...