State v. Beaver, 36

• Decision Date: 04 November 1976
• Docket Number: No. 36,36
• Citation: 229 S.E.2d 179,291 N.C. 137
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Lewis Edward BEAVER.

Page 179

229 S.E.2d 179

291 N.C. 137

STATE of North Carolina v. Lewis Edward BEAVER.

No. 36.

Supreme Court of North Carolina.

Nov. 4, 1976.

Atty. Gen. Rufus L. Edmisten, Deputy Attys. Gen. Millard R. Rich, Jr. and Isham B. Hudson, Jr., and Associate Atty. James E. Scarbrough, Raleigh, for the State.

J. Robert Rankin, Charlotte, for defendant appellant.

MOORE, Justice.

Defendant first challenges the sufficiency of the bill of indictment, contending that the indictment was defective for two reasons: (1) that the house was not sufficiently described, and (2) that ownership was alleged in VanPelt, when actually the property belonged to Barber Scotia College. Defendant made no motion to quash the bill of indictment. Ordinarily, motions to quash after the evidence is in come too late. State v. Walker, 251 N.C. 465, 112 S.E.2d 61 (1960). However, under Rule 10(a) of the Rules of Appellate Procedure, 287 N.C. 671, 698, upon appeal, any party may present for review, by properly raising the issue in the brief, the questions of whether the court had jurisdiction of the subject matter, and whether a criminal charge is sufficient in law. This is true, notwithstanding the absence of exceptions or assignments of error in the record on appeal. See State v. Thornton, 251 N.C. 658, 111 S.E.2d 901 (1960), for comparable practice under former Rule 21, 221 N.C. 544, 558. Under Rule 10(a), we proceed to examine the bill of indictment in this case which is as follows:

'THE JURORS FOR THE STATE UPON THEIR OATH PRESENT, That Edward Beaver, late of the County of Cabarrus on the 9th day of December 1974 about the hour of 4:30 A.M. in the night of the same day, with force and arms, at and in the county aforesaid, the dwelling house of one Marvin O. VanPelt there situate, and then and there actually occupied by one Marvin O. VanPelt feloniously and burglariously did break and enter, with intent, the goods and chattels of the said Marvin O. VanPelt in the said dwelling house then and there being, then and there feloniously and burglariously to steal, take and carry away the goods and chattels of Marvin O. VanPelt against the peace and dignity of the State.'

In State v. Coffey, 289 N.C. 431, 222 S.E.2d 217 (1976), we approved a bill of indictment almost identical to the one in this case. There, Justice Lake, speaking for the Court, said:

'It is true that an indictment for burglary is fatally defective if it fails to identify the premises broken and entered with sufficient certainty to enable the defendant to prepare his defense and to offer him protection from another prosecution for the same incident. State v. Smith, 267 N.C. 755, 148 S.E.2d 844 (1966). The indictment in the present case charges that the defendant 'in the county aforesaid (Rutherford), the dwelling house of one Doris Matheny there situate, and then and there actually occupied by one Doris Matheny * * * did break and enter' with the requisite intent. This is a sufficient description to withstand a motion to quash.'

In present case, defendant testified that at one time he had lived in this house, and admitted that he was there on the night in question. He had ample information on which to prepare his defense. The bill of indictment alleged all the essential elements of the offense with sufficient certainty to (1) identify the offense; (2) protect the accused from being twice put in jeopardy for the same offense; (3) enable the accused to prepare for trial; and (4) support judgment upon conviction or plea. State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897 (1970). See also Doss v. North Carolina, 252 F.Supp. 298 (M.D.N.C.1966).

Defendant further contends that the indictment was defective in that it identifies the premises by its occupant VanPelt rather than its owner, Barber Scotia College. Burglary is a common law offense. It consists of the felonious breaking and entering of the dwelling house or sleeping apartment of another in the nighttime with the intent to commit a felony therein, whether such intent be executed or not. State v. Davis, 282 N.C. 107, 191 S.E.2d 664 (1972); State v. Surles, 230 N.C. 272, 52 S.E.2d 880 (1949). By statute, G.S. 14--51, the offense is divided into two degrees, first and second. The distinction between the two degrees depends upon the actual occupancy of the dwelling house or sleeping apartment at the time of the commission of the crime. 'The purpose of the law (in the offense of first degree burglary) was and is to protect the habitation of men, where they repose and sleep, from meditated harm.' State v. Surles, supra, at 275, 52 S.E.2d at 882.

There are only two reasons for requiring ownership of the house to be stated in the indictment for burglary: (1) for the purpose of showing on the record that the house alleged to have been broken into was not the dwelling house of the accused, inasmuch as one cannot commit the offense of burglary by breaking into one's own house, and (2) for the purpose of so identifying the offense as to protect the accused from a second prosecution for the same offense. People v. Gregory, 59 Ill.2d 111, 319 N.E.2d 483 (1974); People v. Jamison, 92 Ill.App.2d 28, 235 N.E.2d 849 (1968); State v. Knizek, 192 Wash. 351, 73 P.2d 731 (1937). As was held in Taylor v. State, 214 Miss. 263, 266, 58 So.2d 664, 665 (1952), in a burglary indictment, 'the occupant of the building at the time of the burglary is the owner,' and it is unnecessary to allege ownership of the title to the building. The decisions of this Court require only that the breaking and entering in the nighttime with intent to commit a felony be into a dwelling or a room used as a sleeping apartment which is actually occupied at the time of the offense. State v. Davis, supra; State v. Accor and State v. Moore, 277 N.C. 65, 175 S.E.2d 583 (1970). Thus, in burglary cases, we hold that occupation or possession of a dwelling or sleeping apartment is tantamount to ownership. There is no requirement that actual ownership of the occupied premises be alleged and proved.

In the case at bar, VanPelt was occupying the house in question in the nighttime and was using it as a sleeping apartment. The bill of indictment so alleged and the evidence so showed. This is all that is required. We hold that there was no variance between the allegation and the proof.

Judgment was entered in this case on 7 January 1976. The next day, apparently during the same term but after appeal entries were entered, defendant moved for a new trial on the ground of newly discovered evidence. The motion was denied on 17 May 1976.

In Wiggins v. Bunch, 280 N.C. 106, 108, 184 S.E.2d 879, 880 (1971), Justice Branch quoted with approval from Machine Co. v. Dixon, 260 N.C. 732, 133 S.E.2d 659 (1963), as follows:

"As a general rule, an appeal takes a case out of the jurisdiction of the trial court. Thereafter, pending the appeal, the judge is Functus officio. . . . Exceptions to the general rule are: (1) notwithstanding notice of appeal a cause remains In fieri during the term in which the judgment was rendered, (2) the trial judge, after notice and on proper showing, may adjudge the appeal has been abandoned, (3) the settlement of the case on appeal." See also State v. McLamb, 208 N.C. 378, 180 S.E. 586 (1935).

Assuming, without deciding, that the trial court had jurisdiction to pass on the motion made during the same term, but not decided for several months thereafter, we go to the merits of defendant's motion.

Defendant, in his motion for a new trial, states that while the...