State v. Accor

• Decision Date: 31 July 1970
• Docket Number: No. 26,26
• Citation: 175 S.E.2d 583,277 N.C. 65
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Richard William ACCOR. STATE of North Carolina v. Willard MOORE.

Page 583

175 S.E.2d 583

277 N.C. 65

STATE of North Carolina v. Richard William ACCOR.

STATE of North Carolina v. Willard MOORE.

No. 26.

Supreme Court of North Carolina.

July 31, 1970.

Atty. Gen. Robert Morgan, Deputy Atty. Gen. Ralph Moody and Asst. Atty. Gen. Bernard Harrell for the State.

Chambers, Stein, Ferguson & Lanning, Charlotte, for defendant appellants.

BOBBITT, Chief Justice.

On May 13, 1970, this case was remanded to the Superior Court for appropriate proceedings to correct patent errors appearing on the face of its minutes. State v. Accor and State v. Moore, 276 N.C. 567, 173 S.E.2d 775. In accordance with our directions, such proceedings were conducted in Gaston Superior Court; and on June 25, 1970 based on findings of fact set forth therein, an order was entered by Ervin, J., correcting the patent errors which had appeared in the minutes of the May 26, 1969 Session. A certified copy of this order is incorporated in the record on appeal. The corrected record shows unquivocally that the pleas, verdicts, and judgments were as set forth in our preliminary statement and that the alternate jurors were excused before the jury, consisting of the original twelve, commenced deliberations as to their verdict. Indeed, the briefs filed by defendants and by the State prior to oral argument at our Fall Term 1969 are based on this premise and contain no reference to the now-corrected patent errors.

Each defendant assigns as error the court's denial of his motion to quash the indictment. Defendants' contentions purporting to support these assignments bear upon whether the Death penalty provisions of G.S. § 14--51, G.S. § 14--52 and G.S. § 15--162.1, relating to burglary in the first degree, in force on March 4, 1969, were invalid. Unquestionably, the indictment charges burglary in the first degree as defined in G.S. § 14--51. Whether burglary in the first degree is punishable by death if the jury when rendering its verdict in open court Fails to recommend that the punishment shall be imprisonment for life in the State's prison, is not presented by the motions to quash. These motions were properly overruled.

Each defendant assigns as error his motion(s) to dismiss as in case of nonsuit. The gist of defendants' contention is that the evidence is insufficient to support a finding that the two Negro men who broke into and entered the Carson-Martin residence at 1609 Jackson Road on March 4, 1969, about 2:15 a.m., did so feloniously and burglariously With the intent 'to steal, take and carry away clothing, goods, and other personal property of Mr. and Mrs. Witt Martin, James Martin and Elizabeth Martin Carson * * *.'

There was plenary evidence the residence contained numerous articles of personal property of value owned by the occupants. There was no evidence either defendant actually took and carried away any such article of personal property. The breaking and entering were immediately detected; the intruders were confronted in the brightly lighted kitchen by Mrs. Carson and by Witt Martin; the intruders then attacked Witt Martin, James W. Martin and Mrs. Carson; and all were engaged in physical combat until M. B. Cloninger, the next-door neighbor, responded to pleas for help by turning on the flood light on the corner of his house, at which time the intruders fled.

In State v. Allen, 186 N.C. 302, 306, 119 S.E. 504, 506, Stacy, C.J., said: '(B)urglary 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.' (Our italics.)

In State v. Thorpe, 274 N.C. 457, 464, 164 S.E.2d 171, 176, Higgins, J., for the Court, said: 'The indictment having identified the intent necessary, the State was held to the proof of that intent. Of course intent or absence of it may be inferred from the circumstances surrounding the occurrence, but the inference must be drawn by the jury.'

According to uncontradicted evidence: When the intruders, then in the brightly lighted kitchen, were first confronted, Witt Martin asked: 'What do you want?' The intruders made no reply but 'just started hitting.' The conduct of the intruders negates any suggestion that they entered the Carson-Martin residence for any lawful purpose. Moreover, their conduct discloses affirmatively that they were fully aware of and participated in events requiring mental quickness as well as physical dexterity.

In 13 Am.Jur.2d Burglary § 52, entitled 'Intent,' the author says:

'Intent is a state of mind existing at the time a person commits an offense. If intent required definite and substantive proof, it would be almost impossible to convict, absent facts disclosing a culmination of the intent. The mind of an alleged offender, however, may be read from his acts, conduct, and inferences fairly deducible from all the circumstances.

'There is a lack of unanimity of opinion among the courts on the question whether the intent to commit larceny in connection with a burglary charge must be affirmatively shown to exist as distinct from some other offense which might have been intended. Numerous cases, however, hold that an unexplained breaking and entering into a dwelling house in the nighttime is in itself sufficient to sustain a verdict that the breaking and entering was done with the intent to commit larceny rather than some other felony. The fundamental theory, in the absence of evidence of other intent or explanation for breaking and entering, is that the usual object or purpose of burglarizing a dwelling house at night is theft.'

In State v. McBryde, 97 N.C. 393, 1 S.E. 925, the evidence failed to show that the intruder had disturbed any of the personal property within the residence. The evidence was held sufficient to withstand the defendant's motion to dismiss as in case of nonsuit. Davis, J., for the Court, said: 'The intelligent mind will take cognizance of the fact, that people do not usually enter the dwellings of others in the nighttime, when the inmates are asleep, with innocent intent. The most usual intent is to steal; and, when there is no explanation or evidence of a different intent, the ordinary mind will infer this also. The fact of the entry alone, in the nighttime, accompanied by flight when discovered, is some evidence of guilt, and, in the absence of any other proof, or evidence of other intent, and with no explanatory facts or circumstances, may warrant a reasonable inference of guilty intent. Here there was no larceny or other felony actually committed, and the guilt, if any, consisted in the Intent to commit a felony, which was not consummated.' Accord: State v. Hargett, 196 N.C. 692, 146 S.E. 801; State v. Oakley, 210 N.C. 206, 186 S.E. 244.

We hold the evidence was sufficient for submission to the jury upon the allegations contained in the indictment, and that it was for the jury to determine, under all the circumstances, whether the defendants or either of them had the ulterior criminal intent at the time of breaking and entering to commit the felony charged in the indictment.

Since a new trial is awarded for error in the admission of evidence, it is here noted that Admitted evidence, whether competent or incompetent, must be considered in passing on defendants' motions under G.S. § 15--173 for judgments as in case of nonsuit. State v. Virgil, 263 N.C. 73, 138 S.E.2d 777, and cases cited; State v. Walker, 266 N.C. 269, 145 S.E.2d 833; State v. Cutler, N.C. 379, 156 S.E.2d 679.

Decision on this appeal turns on whether the court committed prejudicial error by admitting, over defendants' objections, the testimony relating to the out-of-court identifications on March 6th of the photographs of defendants, the album containing these photographs, and the in-court identifications of defendants by Witt Martin, James Martin and Mrs. Carson.

Mrs. Carson was asked on direct examination whether she could identify in court the two Negro men who had broken into and entered the Carson-Martin residence. Counsel for each defendant objected and requested an opportunity to 'qualify' the witness. In the absence of the jury, a Voir dire hearing was conducted. At the conclusion thereof, Judge May made and entered the following findings of fact and conclusions of law, Viz:

'FINDINGS OF FACT

'1. In the absence of the jury, evidence was introduced, at length, by the State and the witnesses offered by the State were examined and cross-examined, both by the Solicitor for the State and by counsel for the respective defendants, Willard Moore and Richard Accor, with respect to an album containing thirteen photographs.

'2. That the witness, Captain Eugene Posey, testified that eleven photographs were removed from the police identification files which had been made prior to March 4, 1969, and that on March 5th, pictures were made of the defendants, Moore and Accor; that these pictures were placed in the album in positions Nos. 5 and 11.

'3. That there were no numbers, code, or otherwise placed on said photographs to indicate who any particular person was in a specified photograph; that each photograph was taken in the identical location in the City of Gastonia Police Department and that each person so photographed was taken from a front view and a side view and furthermore that each person so photographed had a chain around the neck with a placard hanging down on the chest; that this chain and placard appeared in each photograph and that the information contained on the placard of all thirteen photographs was covered by tape and unavailable to be seen or identified.

'4. That no photograph of either...