State v. Goffney

• Decision Date: 20 December 1911
• Citation: 73 S.E. 162,157 N.C. 624
• Parties: STATE v. GOFFNEY.
• Court: North Carolina Supreme Court

73 S.E. 162

157 N.C. 624

STATE v. GOFFNEY.

Supreme Court of North Carolina

December 20, 1911

Appeal from Superior Court, Wilson County; Cooke, Judge.

Sylvester Goffney was convicted of housebreaking, and appeals. Reversed, and proceeding dismissed.

Daniels & Swindell, for appellant.

T. W Bickett, Atty. Gen., and G. L. Jones, Asst. Atty, Gen., for the State.

BROWN J.

1. The defendant moved in arrest of judgment because the word "felonious" is not charged in the bill. The charge is that defendant did break and enter (otherwise than by burglarious breaking) the storeroom and house of Geo. Barnes and Joe Barnes, partners, etc., with intent to commit a felony, to wit, with intent the goods, etc., of said Barnes Bros., etc., feloniously to steal, etc.

The defendant attacks the bill of indictment for the reason that it does not allege that the breaking and entering into the storeroom was feloniously done. We think this exception is without merit. The indictment alleges that the defendant did break and enter with intent to commit a felony. We are unable to draw any distinction between the words, "unlawfully breaking and entering with the intent to commit a felony," and the words, "unlawfully and feloniously breaking and entering with the intent to commit a felony." Using the word "felonious" as it is used in the indictment defines the offense as accurately as if it were repeated. In other words, if one breaks into a house with intent to commit a felony, he feloniously breaks into the house. The indictment follows the wording of the statute. An indictment like the one at bar in this respect was held good in the case of State v. Tytus, 98 N.C 705, 4 S.E. 29. See, also, State v. Staton, 133 N.C 643, 45 S.E. 362.

2. It is contended by the learned counsel for defendant in a well-prepared brief that, upon the state's evidence, no crime has been committed, and with this position we fully agree.

There were only two witnesses examined. Barnes, the prosecutor and owner of the storehouse, testified: "I know the defendant, have known him for four years. He has been in my employ for several years, during which time I found him honest. He assisted me in my store and business a portion of the time. In consequence of statements made to me by Richard Farmer, a negro boy in my employ, I instructed Richard to induce defendant to break in my store. On the night of July 7th Policeman Wynne, myself, and others watched the store, and about 12 o'clock we saw the defendant, Sylvester Goffney, and Richard Farmer go to the store, and saw defendant, Goffney, remove tacks holding a window pane, and remove the window, and enter the store. Richard Farmer immediately afterwards also entered the store through the same window. Policeman Wynne, myself, and others, who were watching the store, after firing pistols, entered the store, and arrested the defendant, Goffney, and required said Farmer to accompany us." The only other witness corroborated Barnes.

It is held in this state and elsewhere that larceny cannot be committed when the owner through his agent consents to the taking and asportation, though such consent is given for the purpose of apprehending the felon. State v. Adams, 115 N.C. 775, 20 S.E. 722. In that case it is said: "Although the intent to steal certain property is formed and carried out, the perpetrator is not guilty of larceny if he has been persuaded by a servant of the owner at the latter's instance to commit the theft." In the opinion Mr. Justice Clark well says: "The object of the law is to prevent larceny by punishing it, not to procure the commission of a larceny that the defendant may be punished." In the case at bar it appears that Barnes, the owner of the building entered, directed his servant, Richard Farmer, to induce the defendant to break in his (Barnes') store, that the servant obeyed his orders, and that he and defendant entered the store together, and that Barnes was present, watching them, and arrested defendant after he entered. If it were possible to hold the defendant guilty of a felony, under such circumstances, then Barnes could be likewise convicted of feloniously breaking and entering his own store, for he was present, aiding and abetting the entry of the defendant, and induced him to enter. That would, of course, be a legal absurdity.

Mr Desty says: "Where the owner was apprised of the proposed burglary, and his servant, procuring the keys from his master, accompanied the burglar, and entered the premises, there could be no conviction." Desty's. Am. Crim. Law, p. 486. See, also, Wharton's Crim. Law (9th Ed.) §§ 915, 766-770; Reg. v. Johnson, Car. & M. 218; Allen v. State, 40 Ala. 334,...