State v. McKnight

• Decision Date: 29 November 1892
• Citation: 16 S.E. 319,111 N.C. 690
• Parties: STATE v. McKNIGHT.
• Court: North Carolina Supreme Court

16 S.E. 319

111 N.C. 690

STATE v. McKNIGHT.

Supreme Court of North Carolina

November 29, 1892

Appeal from superior court, Surry county; McIVER, Judge.

Leonidas McKnight was convicted of burglary, and appealed. Affirmed.

Where the prisoner's counsel, in addressing the jury, commented on the trial of an accomplice of accused, and the court, on objection made, remarked that such trial had nothing to do with this case, there was no error.

The Attorney General, for the State.

SHEPHERD C.J.

The prisoner was indicted for burglary "in the first degree," and on his trial admitted the breaking and entry with the felonious intent as charged in the bill. The propriety of the admission is demonstrated by the decision of this court in State v. Fleming, 107 N.C. 905, 12 S.E. Rep. 131, in which the question as to what constitutes a sufficient breaking is fully discussed, and illustrated by many authorities. The prisoner, however, very seriously insists that the state has failed to adduce sufficient evidence to warrant the jury in finding that the breaking and entry were done in the nighttime, and it will therefore be necessary to recapitulate so much of the testimony as bears upon this point. Mrs. S. H. Taylor testified that she had an early supper on the night in question, but not earlier than was her custom; that some time after supper her husband and the other members of the family left the house, and went up into the town, to be present at an oyster supper at Moore's Hotel; that when they left "it was dark except what light was given by the moon; that it was after daylight had disappeared;" and that the lamps in the house had been lighted some time before. On cross-examination she stated that it was her habit to have supper "generally about sundown; that it was no earlier that evening than usual; that at that time of the year the moon was up early in the evening, and, as the sun descended, the moon became brighter; that she did not know what time it was it was after night; was after daylight down, though early in the night." Mrs. Galloway, a daughter of Mrs. Taylor testified that she went with the other members of the family to the oyster supper, but that they did not start for some time after they had taken supper at home; that when they started the lamps in the house had been lighted, and "it was dark, except the light from the moon; it was after daylight down." Sir William Blackstone (4 Bl. Comm. 224) says that "anciently the day was accounted to begin only at sunrising, and to end immediately upon sunset; but the better opinion seems to be that, if there be daylight or crepusculum enough begun or left to discern a man's face withal, it is no burglary. But this does not extend to moonlight, for then many midnight burglars would go unpunished." "In the law of burglary there must not be daylight enough to discern a man's face." And Law Dict. 709; Com. v. Chevalier, 7 Dana, Abr....