State v. Jones, 329
| Decision Date | 24 March 1965 |
| Docket Number | No. 329,329 |
| Citation | 264 N.C. 134,141 S.E.2d 27 |
| Court | North Carolina Supreme Court |
| Parties | STATE, v. Clarence K. JONES and Roy Lee. |
Atty. Gen. T. W. Bruton and Deputy Atty. Gen. Harry W. McGalliard, for the State.
Herbert B. Hulse and Julian T. Gaskill, Goldsboro, for defendant appellants.
The State's evidence, in brief summary, tends to show: On August 5, 1964, Robert Casey, Sr., was engaged in the laundry and dry cleaning business in Goldsboro. There is no door between the main building of his plant and the adjoining boiler room. About 9:00 p. m. defendants broke an outside window to the boiler room. Later that night, having entered the boiler room, defendants broke an inside window between the boiler room and the main building. Robert Casey, Jr., was in the main building and heard the noise. He accosted defendants. They fled through the boiler room. They were arrested later that night.
There was no evidence any personal property within the boiler room or main building of Casey's Laundry was stolen or disturbed. There was no positive testimony as to whether 'merchandise, chattels, money, valuable securities' were in the boiler room or main building.
There was no motion for judgment 'as in case of nonsuit.' G.S. § 15-173. Defendants' assignments of error relate to the charge.
The court instructed the jury to return a verdict of guilty if satisfied from the evidence beyond a reasonable doubt 'that at the time they broke and entered * * * they had the intent to take, steal and carry away goods, chattels or merchandise in Casey's Laundry building'; and, if not so satisfied, to return a verdict of not guilty. Defendants contend the court should have, but did not, charge the jury substantially as follows: If the State has satisfied you from the evidence beyond a reasonable doubt that defendants unlawfully (wrongfully) broke and entered Casey's Laundry, but has failed to satisfy you beyond a reasonable doubt that they did so 'with intent to commit a felony or other infamous crime therein,' they would be guilty of a misdemeanor; and in such case it would be your duty to return a verdict of guilty as to such misdemeanor. Defendants excepted to and assign as error the court's failure to so charge.
G.S. § 14-54, on which the indictment is based, was amended in 1955 (S.L.1955, c. 1015) by adding this sentence: 'Where such breaking or entering shall be wrongfully done without intent to commit a felony or other infamous crime, he shall be guilty of a misdemeanor.' It is noted: In the original portion of G.S. § 14-54, the phrase 'break or enter' (our italics) appears in the definition of the felony.
To convict of the felony defined in G.S. § 14-54, the State must satisfy the jury from the evidence beyond a reasonable doubt that a building described in the statute was broken into or entered "with intent to commit a felony or other infamous crime therein." State v. Cook, 242 N.C. 700, 703, 89 S.E.2d 383, 385, and cases cited. Felonious intent, an essential element of the felony defined in G.S. § 14-54, 'must be alleged and proved, and the felonious intent proven, must be the felonious intent alleged, which, in this case, is the 'intent to steal." State v. Friddle, 223 N.C. 258, 25 S.E.2d 751, and cases cited.
G.S. § 15-170 provides: 'Upon the trial of any indictment the prisoner may be convicted of the crime charged therein or of a less degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a less degree of the same crime.'
G.S. § 14-54, as amended, defines a felony and defines a misdemeanor. The unlawful breaking or entering of a building described in this statute is an essential element of both offenses. The distinction rests solely on whether the unlawful breaking or entering is done with 'intent to commit a felony or other infamous crime therein.' Hence, the misdemeanor must be considered 'a less degree of the same crime,' an included offense, within the meaning...
To continue reading
Request your trial
-
State v. Thomas, 8015SC900
...not cured by a verdict convicting defendant King of the felony. State v. Worthey, 270 N.C. 444, 154 S.E.2d 515 (1967); State v. Jones, 264 N.C. 134, 141 S.E.2d 27 (1965). We hold, therefore, that defendant King is entitled to a new trial. Because of our holding, we will not address defendan......
-
State v. Wells
...which the State must allege and prove, 'and the felonious intent proven, must be the felonious intent alleged . . ..' State v. Jones, 264 N.C. 134, 141 S.E.2d 27 (1965). In an indictment for burglary it is not enough 'to charge generally an intent to commit 'a felony' in the dwelling house ......
-
State v. Freeman
...which defendant intended to commit when he entered the building. State v. Norwood, 289 N.C. 424, 222 S.E.2d 253 (1976); State v. Jones, 264 N.C. 134, 141 S.E.2d 27 (1965). With regard to a prosecution under G.S. 14-54, this Court said: "Felonious intent, an essential element of the felony d......
-
State v. Richardson
...G.S. 14--32, being an included 'less degree of the same crime. " State v. Weaver, 264 N.C. 681, 142 S.E.2d 633. See also State v. Jones, 264 N.C. 134, 141 S.E.2d 27; State v. Hicks, 241 N.C. 156, 84 S.E.2d The Court now says the foregoing is not true in this particular case because the assa......