State v. Jenkins

• Decision Date: 31 August 1858
• Citation: 5 Jones 430,50 N.C. 430
• Court: North Carolina Supreme Court
• Parties: STATE v. ALFRED JENKINS.

5 Jones (NC) 430

50 N.C. 430

STATE

v.ALFRED JENKINS.

Supreme Court of North Carolina.

August Term, 1858.

A store-house, two hundred and fifty yards distant from the dwelling, (in which last, the owner usually slept) which was on the opposite side of a road--to which there was no chimney--in which there was no bed or bed-stead, but in which the owner sometimes slept twice a week, and at other times not once in two weeks, was Held not to be a dwelling-house, in any sense of the word, and, therefore, that burglary could not be committed by breaking into it.

THIS was an indictment for BURGLARY, tried before SAUNDERS, J., at the Spring Term, 1858, of Rutherford Superior Court.

The bill of indictment charged the burglarious breaking and entering the dwelling-house of William F. Fowler, &c.

The proof was, that the building in which the offense was alleged to have been committed, was a store-house, standing at the distance of two hundred and fifty yards from the dwelling-house of the owner, on the opposite side of the road; that Fowler, the owner, occasionally slept in the store room, on a pallet, spread on the counter, with bed-clothes kept there in a box; that there was no bed, or bedstead in the apartment; that there was no chimney to the building; that he slept in the store in this way, sometimes twice in a week, and at other times, not as often as once in two weeks; that no other person slept there.

His Honor instructed the jury, upon this state of facts, that the house was one in which burglary might be committed. Defendant excepted.

Verdict, guilty. Judgment and appeal.

Attorney General, for the State .

Shipp and S. C. W. Tate, for the defendant .

BATTLE, J.

The main question, in this case, is, whether burglary can be committed by breaking into a store-house, in which the owner occasionally slept, when he had a dwellinghouse two hundred yards distant, in which he usually slept with his family. That it may, seems to be fully sustained by the case of State v. Wilson, 1 Hay. Rep. 279, upon which his Honor relied in the Court below. In the report of that case, it is stated that the prisoner was pardoned by the Governor; but whether the pardon was granted on account of any doubt about the correctness of the decision, we are not informed. However that may be, the counsel for the present prisoner contends that the decision is not sanctioned by principle, and is opposed by the authority of other cases.

In the case of the State v. Langford, 1 Dev. Rep. 253, referred to by the prisoner's counsel, the subject of burglary is so clearly and forcibly explained by HENDERSON, J., that we must be excused for extracting several sentences from it: “Burglary is the breaking and entering into the mansion house of another, in the night time, with an intent to commit some felony within the same, whether such intent be executed or not. It is almost the only case where crime in the highest degree is not dependent on the consummation of the intent; in almost all other offenses, there is a locus penitentiæ. But the law throws her mantle around the dwelling of man, because it is the place of his repose, and protects, not only the house in which he sleeps, but also, all the other appurtenances thereto, as parcel, or parts thereof, from meditated harm. Thus the kitchen--the laundry--the meat, or...