State v. Chambers
| Decision Date | 07 November 1940 |
| Docket Number | 365. |
| Citation | 11 S.E.2d 280,218 N.C. 442 |
| Parties | STATE v. CHAMBERS. |
| Court | North Carolina Supreme Court |
Criminal prosecution tried upon an indictment charging "that Stewart Chambers, late of Lenoir County, on the 28th day of July, in the year of our Lord One Thousand Nine Hundred and Forty, with force and arms, at and in the county aforesaid feloniously and burglariously did break and enter on or about the hour of ten o'clock in the night time of said day the dwelling house of said J. L. Whaley, there situate, and then and there actually occupied by the said Whaley, his wife and family, with the felonious intent, he, the said Stewart Chambers, to forcibly and violently ravish and carnally know Mrs. J. L. Whaley, a female occupying and sleeping in said dwelling house at the time, without her consent and against her will, and did actually ravish the said Mrs. J. L. Whaley against the form of the statute in such case made and provided and against the peace and dignity of the State".
The evidence offered in the trial court tended to show that on July 28, 1940, Mrs. J. L. Whaley was residing with her husband and three children in a four-room house at Field's Siding, on the farm of A. T. Suggs near LaGrange in Lenoir County, North Carolina; that on the night of said date she and her three children were asleep in the said dwelling house and her husband was at the tobacco barn, a short distance away, curing tobacco; that the children were asleep in one room and she was in bed in the adjoining room, the door between the two rooms being open; that all of the outside doors were closed, and all the windows were closed except the window in her room; that the first thing which aroused her that night after she had put her children to bed and gone to bed herself was "feet scraping the floor"; that a lighted lamp, turned down low, was in the corner of the room; that when she heard the scraping on the floor, she awoke and as she opened her eyes she "just glimpsed the bulk of a man" as he blew out the lamp; that she then made an outcry; that the man then jumped on the bed and assaulted her and was in the act of ravishing her when he was frightened away by the noise of a passing automobile; that "he headed for the window and jumped out"; that he left through the open window; that Mrs. Whaley then gave an alarm and her husband came; that the sheriff's office was notified, and a deputy sheriff and a policeman went immediately to the Whaley house; that these officers, upon investigation, found shoe tracks on the west end of the house at the kitchen window; that there were three tracks on the floor but one could not tell whether they were barefoot tracks or shoe tracks; that there were shoe tracks at the window where the man went out of the house; that the officers went "right back of this house and got a fellow Best and took his shoes and tried them in the track and they were not his tracks"; that they then did the same thing with D. Ward Moore with same result; that then the officers went to the home of defendant at Falling Creek three or four miles away, and carried him to the Whaley home; and that his tracks corresponded with the tracks found there and Mrs. Whaley identified his voice as that of her assailant. There was other evidence tending to connect the defendant with the crime.
Verdict: Guilty of the felony and burglary in the first degree whereof he stands indicted.
Judgment: Death by asphyxiation.
Defendant appeals therefrom to Supreme Court and assigns error.
Louis I. Rubin, and Sutton & Greene, all of Kinston, for appellant.
Harry McMullan, Atty. Gen., and T. W. Bruton and Geo. B. Patton, Asst. Attys. Gen., for the State.
The appellant assigns as error:
1. The charge of the court to the jury that
2. The failure of the court to charge the jury that upon all the evidence one of three verdicts might be rendered by them, to wit: (1) Guilty of burglary in the first degree; (2) Guilty of a nonburglarious breaking and entering of the dwelling house of another, with intent to commit a felony or other infamous crime therein; or (3) Not guilty,--there being evidence from which the jury could infer that the entry of the person so entering might have been through an open window and therefore a nonburglarious entry.
We are of opinion and hold that the assignments are well taken.
The crime of burglary as defined at the common law is by statute in this State divided into two degrees, burglary in the first degree and burglary in the second degree. C.S. § 4232. The statute specifies that "if the crime be committed in a dwelling-house, or in a room used as a sleeping apartment in any building, and any person is in the actual occupation of any part of said dwelling-house or sleeping apartment at the time of the commission of such crime, it shall be burglary in the first degree". The punishment for such crime is death.
There is another statute, C.S. § 4235, which provides in part that "if any person, with intent to commit a felony or other...
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