State v. Mathis

• Decision Date: 25 May 1949
• Docket Number: 77
• Citation: 53 S.E.2d 666,230 N.C. 508
• Parties: STATE v. MATHIS et al.
• Court: North Carolina Supreme Court

53 S.E.2d 666

230 N.C. 508

STATE v. MATHIS et al.

No. 77

Supreme Court of North Carolina

May 25, 1949

Criminal prosecution upon an indictment found as a true bill at January Term 1949 of Buncombe and containing five counts charging,

First 'That John Dryman and Kenneth Mathis, late of the county of Buncombe, on 22 October, 1948, about the hour of seven o'clock in the night of the same day, with force and arms, at and in the county aforesaid, the dwelling house of one Clyde Bennett there situate, and then and there actually occupied by one Clyde Bennett, feloniously and burglariously did break and enter, with intent, the goods and chattels of the said Clyde Bennett in the said dwelling house then and there being, then and there feloniously and burglariously to steal, take and carry away, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State.'

Second The same as the first, adding: 'and then and there in such dwelling house, John Dryman and Kenneth Mathis of the value of three thousand ($3,000.00) dollars of the money goods, chattels of the said Clyde Bennett in the said dwelling house, then and there being found, then and there feloniously and burglariously did steal, take and carry away, contrary to the form of the statute * * * etc.'.

Third: Charges John Dryman and Kenneth Mathis with the criminal offense of robbery of Clyde Bennett with firearms--at the same time and place specified in the first and second counts.

Fourth: Charges that John Dryman and Kenneth Mathis at same time and place feloniously and secretly assaulted Clyde Bennett with deadly weapons, with intent to kill and murder him, inflicting serious and permanent injuries upon him not resulting in death, etc.

Fifth: Charges that John Dryman and Kenneth Mathis, at same time and place, did unlawfully and feloniously take, steal and carry away $3,000 in money owned by and in possession of Clyde Bennett.

Upon arraignment at the January Term 1949 of Superior Court of Buncombe County on the bill of indictment just described, defendants John Dryman and Kenneth Mathis pleaded not guilty.

And on the trial in Superior Court the State offered evidence tending to support as against defendants the charge so preferred against them. Defendants offered no evidence.

Verdict: As to defendant John Dryman: 'Guilty of burglary in the first degree. ' As to defendant Kenneth Mathis: 'Guilty of burglary in the first degree charged in the bill of indictment.'

Judgment: As to each, John Dryman and Kenneth Mathis, separately, death by the administration of lethal gas.

Each defendant, John Dryman and Kenneth Mathis, separately, appeals from the judgment so rendered against him to the Supreme Court and assigns error.

Harry M. McMullan, Attorney General, Ralph M. Moody, Assistant Attorney General, for the State.

F. Piercy Carter, Asheville, Shelby E. Horton, Jr., Asheville, for defendant Mathis.

Henry C. Fisher, Asheville, for defendant Dryman.

WINBORNE Justice.

The evidence offered by the State on the trial in Superior Court, as shown in the record of the case on appeal, taken in the light most favorable to the State, is sufficient to take the case to the jury as to each defendant on each of the essential elements of the crime of burglary in the first degree as defined by the laws of the State, and to support as to each defendant a verdict of guilty of burglary in the first degree. Hence, there is no error in the denial of defendants' motions for judgment as of nonsuit on the charge of burglary in the first degree. See State v. Bennett, 226 N.C. 82, 36 S.E.2d 708, and cases cited, and State v. Bell, 205 N.C. 225, 171 S.E. 50, and cases cited. But since error in another phase of the trial, necessitating a new trial, is made to appear, no useful purpose will be served by a narrative of the evidence adduced by the State.

However assignment of error No. 82, based upon defendant Mathis' exception No. 65 and defendant Dryman's exception No....