State v. Fleming

• Decision Date: 20 October 1890
• Citation: 12 S.E. 131,107 N.C. 905
• Parties: STATE v. FLEMING.
• Court: North Carolina Supreme Court

12 S.E. 131

107 N.C. 905

STATE v. FLEMING.

Supreme Court of North Carolina

October 20, 1890

Appeal from superior court, Pitt county; WOMACK, Judge.

Defendant James Fleming, appeals from a conviction of burglary in the second degree. The indictment charged that, about 11 o'clock on the night of, etc., the dwelling-house of Matthew James, feloniously, burglariously, did break, etc with intent to steal, etc. The daughter of the prosecutor testified that, on the night stated in the indictment, some one opened the blinds of a window (the window being up) and got into the house. The blinds were fastened with a "catch" on the inside, but the witness could not state positively whether she fastened them or not when she closed them that night. The person who entered through the window escaped by passing out by the same window, and then the witness heard some one walking about the kitchen, (which is under the same roof with the room entered,) the outside door of which she fastened by bolting. There was evidence that several articles were missed upon examination of the apartments the next morning, and also that the defendant was the party who entered the house, as charged. The court instructed the jury that to constitute a breaking in this case either the window-blind must have been fastened or the outside door to the kitchen must have been fastened. To constitute a fastening it was not necessary that the inmates of the house should have resorted to locks and bolts; if doors or windows (after being shut as described by the witness) are held in their position by their own weight, and thus relied on as a security against intrusion, it is sufficient. But it would not be a breaking if they were ajar and the prisoner simply increased the size of the opening and entered. The jury must be fully satisfied from the evidence that either the window blind or door was so shut, fastened and relied on as a security against intrusion, at the time of the entry; for burglary cannot be committed by entering through an open door or window. The court also told the jury that upon the indictment the prisoner could not be found guilty of burglary in the first degree, but they could render either of the following verdicts: Guilty of burglary in the second degree; guilty of larceny; or not guilty. There was a verdict of guilty in the second degree. Prisoner excepted. There was a motion in arrest of judgment in that the bill fails to charge the particular facts constituting burglary in either of the two degrees, as created and defined by the act of 1889. Motion overruled. Judgment and appeal.

At a trial for burglary in the first degree, a conviction may be had for burglary in the second degree.

Nixon & Galloway, for appellant.

The Attorney General, for the State.

CLARK J.

The charge of the court as to what would be a sufficient "breaking" is fully sustained by the precedents. If a door or window is firmly closed, it is not necessary that it should be bolted or barred. State v. Boon, 13 Ired. 244; Whart. Crim. Law, §§ 759, 767, and cases cited. Take the case of raising a window not fastened, although there was a hasp which could have been fastened, (Rex v Hyams, 7 Car. & P. 441, and State v. Carpenter, 1 Houst. Crim. Cas. 367;) or where the prisoner entered by raising or pulling down the sash kept in its place merely by a pulley weight, (Rex v. Haines, Russ. & R. 451;) or by pushing open a closed door, not latched, (State v. Reid, 20 Iowa, 413;) or closed, but not locked, ( Hild v. State, 67 Ala. 39;) or firmly closed, though there was no fastening of any kind on the door, (Finch v. Com., 14 Grat. 643;) or (Reg. v. Bird, 9 Car. & P. 44) where the glass of a window had been cut, but every portion of the glass remained in its place until the prisoner pushed it in and so entered; or where a window was on hinges with nails behind it as wedges, but which nevertheless would open by pushing, and was so opened by the prisoner,--in all of which cases the "breaking" was held to be sufficient. If the entrance was either by pulling open the blinds which had been shut, whether fastened or not, or through the door which had been bolted, the above decisions apply. The indictment charged the offense as in the old form, without alleging that the dwelling-house was in the actual occupation of any one at the...