State v. Ellsworth
| Decision Date | 20 May 1902 |
| Citation | 41 S.E. 548,130 N.C. 690 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. ELLSWORTH et al. |
BURGLARY—INDICTMENT—ALLEGATION OP INTENT—EVIDENCE—ADMISSIBILITY—OPINION EVIDENCE—HARMLESS ERROR.
1. An indictment under Code, § 996, making it criminal to break and enter any building in the nighttime with intent to commit a felony, which alleges a breaking with intent unlawfully, willfully, and feloniously to commit the crime of larceny, sufficiently alleges an intent to commit larceny.
2. The admission of evidence in a prosecution for burglary that defendants left a horse at a certain place, and that the owner afterwards came for it, which evidence is not offered for the purpose of showing another crime, but is brought out incidentally in narrating the conduct of defendants and connecting them with the crime, is rendered harmless, even if erroneous, by its withdrawal by the court
3. Evidence in a burglary case that witness met defendants the day before the former heard of the safe being broken open was admissible, as fixing the time of the occurrence as to which he was testifying, and was not objectionable as evidence that the safe was blown open.
4. Evidence in a burglary case that the door of the building had been broken open with a chisel is evidence of a fact, and not inadmissible as a mere opinion.
Appeal from superior court, Anson county; Neal, Judge.
George Ellsworth and another were convicted of burglary, and appeal. Affirmed.
H. H. McLendon, for appellants.
The Attorney General, for the State.
The defendants were indicted under section 996 of the Code, in the following bill of indictment: "* * * That the defendants did unlawfully, willfully, and feloniously break and enter the storehouse of M. H. Lowery and others, doing business as H. M. Lowery & Co., then and there situate, and in which said house there was at that time money, meal, flour, meat, dry goods, and other personal property, in the nighttime, and with intent, unlawfully, willfully, and feloniously, to commit the crime of larceny, " etc. The defendants moved to quash, and also in arrest of judgment, because the intent "to commit the crime of larceny" was not sufficiently charged. The solicitor followed a decision of this court which is exactly in point and the judge properly denied the motion. State v. Tytus, 98 N. C. 705, 4 S. E. 29. This case has since been cited with approval in State v. Christmas, 101 N. C. 755, 8 S. E. 361.
A witness testified that the defendants left a horse there tied to a tree and did not come back, and the next day the owner of the horse came for him. The defendants...
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