State v. Mordecai

• Decision Date: 31 January 1873
• Citation: State v. Mordecai, 68 N.C. 207 (N.C. 1873)
• Parties: STATE v. SIMPSON MORDECAI and THOMAS GRIFFICE.
• Court: North Carolina Supreme Court

68 N.C. 207

STATE

v.SIMPSON MORDECAI and THOMAS GRIFFICE.

Supreme Court of North Carolina.

January Term, 1873.

A building within the curtilage, and regularly used as a sleeping room, is in contemplation of law a dwelling house in which burglary can be committed.

The defendants went to the store house of the prosecutor, in which he was sleeping, between the hours of 10 and 11 o'clock at night, and knocking at the door called his name twice; he answered the call, and told them to wait until he put on his breeches, which he did and opened the door, when the defendants entered the house and called for meat, and as the prosecutor was in the act of getting the meat he was knocked down by one of the defendants, and the store robbed: Held, to be a sufficient breaking to constitute the crime of burglary.

The house in which the burglary was committed, and that occupied by the family of the prosecutor were distant 30 yards from each other: Held, to be no error in the Judge's refusing to charge, that one could not have two dwelling houses in that distance from each other.

The counsel for the State has a right to exhibit and comment upon a stick which had been before identified as one had by one of the defendants, and with which it was alleged the prosecutor had been struck.

BURGLARY, tried before Watts, J., at the January Term, 1873, of WAKE Superior Court.

The defendants were charged in the bill of indictment with breaking into the dwelling house of the prosecutor, and in another count with the larceny of a pair of shoes and other articles, alleged to have been taken from the house.

The evidence as to the different counts, and the objections taken to its admission by defendants, with the exceptions to the ruling of the Judge who tried the case in the Superior Court, are fully stated in the opinion of the Court.

The jury returned a verdict of guilty.Rule for a new trial; rule discharged.Judgment of death and appeal by defendants.

Batchelor, Edwards & Batchelor, for defendants.

Attorney General Hargrove, with whom was Cox, for the State.

BOYDEN, J.

In this case his Honor was requested to instruct the jury, “first: That the storehouse in which the alleged burglary was committed was not, under the circumstances testified to, a dwelling house in contemplation of the law.”His Honor refused the prayer and charged the jury, “that if they believed the witnesses the house in which the alleged burglary was committed was a dwelling house in contemplation of the law.”The testimony upon the point was as follows: that the owner, the prosecutor Hicks, was sleeping in his store in the night of the alleged burglary; that he had slept there for five months, with the exception of a single night; that the dwelling house where his wife slept was distant thirty steps, and in the same enclosure; that he slept there to protect his store and for the convenience of trade.

The son of the prosecutor testified that his father had been usually sleeping in the said store for the last five years.

The authorities in the brief filed in the cause on the part of the State are full and conclusive, and the point has been heretofore so thoroughly considered in our State that we had supposed the question not now debatable, that a building within the curtelage and regularly used as a sleeping room, was in contemplation of law a dwelling-house in which burglary might be committed.There was no error in the charge of his Honor upon...