State v. Feyd
| Decision Date | 25 May 1938 |
| Docket Number | 654. |
| Citation | 197 S.E. 171,213 N.C. 617 |
| Parties | STATE v. FEYD. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Guilford County; W. F. Harding, Judge.
Ernest Feyd was convicted of first degree burglary, and, from a judgment imposing the sentence of death, he appeals.
New trial.
The defendant was convicted of burglary in the first degree, and from judgment imposing sentence of death, he appeals.
In prosecution under bill under which it is permissible to convict of less degree of same crime or attempt to commit such crime of less degree thereof wherein there is evidence tending to support a milder verdict, error in failure to submit different views under proper charge is not cured by verdict convicting defendant of the crime as charged.
Sol Bernard Weinstein and James E. Coltrane, both of Greensboro for appellant.
Harry McMullan, Atty. Gen., and Emmett C. Willis, Asst. Atty. Gen for the State.
The bill of indictment charged the defendant with feloniously and burglariously breaking and entering, in the night time, the dwelling house of Mary E. Kinsland and Helen G. Moore in the city of Greensboro, the house being then actually occupied by them as a sleeping apartment, and that the breaking and entry was with the intent to steal, and also to ravish the named occupants.
The defendant's motion for judgment of nonsuit was properly denied. The testimony offered at the trial was sufficient to support the charge, both of the unlawful breaking and entry and of the felonious intent in both the particulars alleged in the bill.
Miss Mary E. Kinsland testified, in substance, that she and Miss Moore occupied the same apartment, and that on the occasion alleged they went to bed about 11:30 P. M., and that the doors leading into the hallway and into their apartment were closed but not locked; that she was awakened about 4:00 A. M. by the presence of someone (later identified as the defendant) lying beside her on the bed; that she screamed and the man ran; that forty cents was missing from her pocket-book; that the man's coat, shoes and overalls were on the floor at the foot of the bed. The State also offered evidence tending to show that the defendant was found about 7:30 the same morning asleep under a bed in a house not far away, and that he had forty cents in his pocket; that he told the officers that he and another man entered the apartment through the door, looking for money; that both of them entered the apartment.
The defendant testified and offered evidence tending to show that he was in such a drunken condition on the night in question that he did not know where he was or what he was doing, and that he thought he was going home and did not remember going into any house. He denied making the statements to the officers. The State's witnesses, however, testified the defendant ran from the apartment when discovered, that he was not drunk when arrested three and a half hours later, and that the other man was not with him at the time of the entry.
The defendant, among other exceptions, assigns as error the failure of the learned judge who presided over the trial to permit the jury to consider a less degree of the crime of burglary or a lesser offense cognizable under the bill of indictment (C.S. § 4640), and that he charged the jury in effect that they could only return a verdict of guilty of burglary in first degree or not guilty. While it is true the court charged the jury that if they found the dwelling house was unoccupied, they should convict the defendant of burglary in second degree, there was no evidence to support that view. All the evidence tended to show that the house was actually occupied at the time of the entry charged. But the defendant contends that there was evidence from which the jury might have found that the entry was otherwise than by a burglarious breaking, constituting the lesser offense defined by C.S. § 4235, and that the jury should have been so instructed. In support of this position defendant cites State v. Allen, 186 N.C. 302, 119 S.E. 504, and State v. Spain, 201 N.C. 571, 160 S.E. 825.
In the Allen Case the bill of indictment and the facts were very similar to those in the instant case. There the evidence showed that the defendant, in the night time, entered the dwelling house by raising a window, and crawled under the bed of Mrs. Allen, and that she was awakened by his putting his hand on her. The defendant offered evidence that he was so...
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