State v. Allen
| Decision Date | 10 June 1971 |
| Docket Number | No. 69,69 |
| Citation | 181 S.E.2d 453,279 N.C. 115 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Junior ALLEN. |
Atty. Gen. Robert Morgan and Asst. Atty. Gen. Myron C. Banks, for the state.
W. Kenneth Hinton, Smithfield, for defendant appellant.
The sole question raised by the defendant in this Court is thus stated in his brief: 'Did the trial court commit error by placing the defendant on trial for burglary in the second degree when all the evidence tended to show burglary in the first degree?'
The defendants thus brings forward into his brief only his Assignment of Error No. 1. This assignment is directed to his Exceptions Nos. 1 and 8. Exception No. 1 is to the direction by the court that the record show that, prior to arraigning the defendant, the solicitor announced, in open court and in the presence of the defendant and of his attorney, that he would seek no verdict greater than burglary in the second degree, and to the subsequent arraignment of the defendant by reading the bill of indictment to which the defendant entered a plea of not guilty. Exception No. 8 was to the court's statement in its charge to the jury that the State had announced it would seek no verdict greater than burglary in the second degree, to which offense the defendant entered a plea of not guilty. The defendant's Assignments of Error Nos. 2, 3 and 4 are, therefore, deemed abandoned. Rule 28 of the Rules of Practice in the Supreme Court.
The bill of indictment returned by the grand jury charged all of the elements of burglary in the first degree. Consequently, it necessarily charged all of the elements of burglary in the second degree plus the additional allegation that the dwelling house in question was actually occupied at the time of the alleged breaking and entry by the defendant. This further element of actual occupancy at the time of the breaking and entering is the only distinction between the two degrees of burglary. G.S. 14--51. Thus, had there been no announcement by the solicitor, the bill of indictment would have supported a verdict of guilty of either first degree burglary or second degree burglary as the evidence might warrant. G.S. 15--170.
Upon the return of an indictment sufficient in form to support a conviction of the defendant of either the maximum degree of the offense charged, a lesser degree thereof or a lesser offense, all of the elements of which are included in the crime charged, the solicitor has the authority to elect not to try the defendant on the maximum degree of the offense charged but to put him on trial for the lesser degree thereof and lesser offenses included therein. State v. Peeden, 272 N.C. 494, 158 S.E.2d 615. The effect of such election by the solicitor, announced as in this instance, is that of a verdict of not guilty upon the maximum degree of the offense charged, leaving for trial the lesser degree and the lesser included offenses. State v. Miller, 272 N.C. 243, 158 S.E.2d 47; State v. Pearce, 266 N.C. 234, 145 S.E.2d 918. Thus, there was no error in arraigning and trying the defendant upon the charge of second degree burglary. At that stage of the proceeding, the court could not know what the evidence would tend to show. There is no merit in the defendant's Exception No. 1.
Upon the question of the occupancy of the dwelling at the time of the breaking and entering by the defendant, the evidence was to the effect that the dwelling was the home of Mrs. Johnson, 87 years of age, and that she had gone to bed shortly before her son's departure about 10 p.m. When he left there was no one in the house except Mrs. Johnson. The breaking and entering occurred about midnight. Mrs. Johnson did not testify. The statement of the defendant to the investigating officer indicates that no one was in the room which he entered, and contains no indication that he ever saw Mrs. Johnson.
While this evidence would permit the jury to draw an inference that Mrs. Johnson was in the house at the time the defendant broke and entered, it does not, even if true, compel a finding to that effect. Consequently, the question of whether the house was actually occupied at the time of the breaking and entering was for the jury, and had there been no announcement by the solicitor, it would have been necessary for the court to submit to the jury, as possible verdicts, both burglary in the first degree and burglary in the second degree, depending upon whether they found, upon this evidence beyond a reasonable doubt, that the house was or was not occupied at the time of the breaking and entering.
In State v. Tippett, 270 N.C. 588, 155 S.E.2d 269, the exact time of the breaking and entering was not fixed by the evidence. The evidence was that the house was unoccupied for a brief interval immediately before the residents therein retired for the night. Under those circumstances, this Court held there was no error in instructing the jury that if it did not find from the evidence, beyond a reasonable doubt, that the house was occupied at the time of the breaking and entering, it should find the defendant not guilty of burglary in the first degree, but it should return a verdict of burglary in the second degree if it did so find each of the elements thereof.
The solicitor's announcement precluded a verdict of guilty of burglary in the first degree in the present case. It was, in effect, a stipulation by the State that the house was not actually occupied at the time of the breaking and entering. The defendant, not having objected thereto at the time of the announcement, may not await the outcome of the trial and then attack the validity of the verdict that he was guilty of second degree burglary on the ground that the house was occupied and so he was guilty of the more serious crime.
Had the bill of indictment, by omitting any allegation as to occupancy of the building, charged second degree burglary only and had the evidence, as here, been sufficient to show all of the elements thereof, proof of actual occupancy of the dwelling at the time of the breaking and entering would not be a defense to the charge. In that event, the defendant would not be entitled to a judgment of nonsuit by reason of the fact that the uncontradicted testimony of the State's witness showed such actual occupancy. The reason is that such evidence of actual occupancy does not negate any element of the offense of second degree burglary. To hold otherwise would force ...
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