State v. Morris

• Decision Date: 03 May 1939
• Docket Number: 433.
• Citation: 2 S.E.2d 554,215 N.C. 552
• Parties: STATE v. MORRIS.
• Court: North Carolina Supreme Court

2 S.E.2d 554

215 N.C. 552

STATE v. MORRIS.

No. 433.

Supreme Court of North Carolina

May 3, 1939

Criminal prosecution tried upon indictment in which it is charged that the prisoner, and another, did on the 29th day of December 1937, about the hour of twelve in the night of the same day with force and arms at and in the County of Wake, feloniously and burglariously break and enter the dwelling-house of one Dr. W. B. Dewar, then and there actually occupied by the said Dr. W. B. Dewar, "with intent the goods and chattels of the said Dr. W. B. Dewar in the said dwelling-house then and there being, then and there feloniously and burglariously to steal, take and carry away, against the peace and dignity of the State."

There is a second count in the bill charging the breaking and entering, with intent to commit the crime of larceny, and also charging the actual commission of larceny of goods of the value of $82.

The State's evidence, taken in connection with that offered by the defendant, clearly establishes a case against the defendant of burglary in the first degree as charged in the bill of indictment. The facts are short and simple: On the night in question, the dwelling-house of Dr. W. B. Dewar located at No. 930 Vance Street in the City of Raleigh, was in the actual occupation of the owner and his family. The defendant and his accomplice, David Fisher, came from Durham that night, went to the flower garden back of the Dewar home the defendant remarking, "this is a hold up", and he "went up the steps to the back window", in the night time, "broke into the house", took a wallet or bill folder containing a Liggett & Myers dividend check for $80, and was frightened away by the sound of a thermostat. The occupants of the house, though greatly frightened, remained quiet to avoid the risks of a physical encounter. The check, made payable to W.B. Dewar, was presented by the defendant to the Fidelity Bank in Durham on the morning of 29 December, 1937. This led to his arrest, later confession and conviction.

The court instructed the jury that, under the evidence, only one of two verdicts might be rendered: "That is, you can find this defendant guilty of burglary in the first degree or not guilty." Exception. All other portions of the charge are admitted to be correct.

In apt time, the defendant requested the following special instruction: "Our law provides (C.S. § 4641) that when the crime charged in the bill of indictment is burglary in the first degree, the jury may render a verdict of guilty of burglary in the second degree if they deem it proper to do so and I instruct you that you have the right to return a verdict of guilty of burglary in the second degree." Instruction refused; exception.

Verdict: "Guilty as charged."

Judgment: Death by asphyxiation.

The defendant appeals, assigning errors.

J. C. Little and W. Brantley Womble, both of Raleigh, for appellant.

Harry McMullan, Atty. Gen., and T. W. Bruton and R. H. Wettach, Asst. Attys. Gen., for the State.

STACY Chief Justice.

To seek to injure another or to take advantage of him while he is disarmed by sleep is to evince a heart devoid of social duties and a mind fatally bent on mischief. Such is the stuff of which house-thieves are made. Hence, burglary was regarded at the common law as one of the worst of crimes. 9 Am.Jur. 239. In its highest degree, it is still a capital offense in North Carolina. The purpose of the law was and is to protect the habitation of men, where they repose and sleep, from meditated harm. "A burglar (or the person that committeth burglary)," says Lord Coke, 3 Inst. 63, "is by the common law a felon, that in the night time breaketh and entereth into a mansion house of another, of intent to kill some reasonable creature, or to commit some other felony within the same, whether his felonious intent be executed or not." To a conviction, under the common law, it was necessary to allege and prove: First, the breaking; second, the entering; third, that the house, broken and entered, was at the time a mansion-house; fourth, that the breaking and entering was in the night time; fifth, that the breaking and entering was with intent to commit a felony therein. State v. Whit, 49 N.C. 349; 9 Am.Jur. 240. And such was the law of burglary in this State prior to the enactment of Chap. 434, Public Laws 1889, now codified as C.S. §§ 4232, 4233 and 4641, which avowedly was enacted "to amend the law in relation to the crime of burglary" by dividing the offense into two degrees, first and second, with certain designated differences between the two, and with different punishments prescribed therefor. State v. Foster, 129 N.C. 704, 40 S.E. 209.

The first degree is where the crime is committed "in a dwelling-house, or in a room used as a sleeping apartment in any building, and any person is in the actual occupation of any part of said dwelling-house or sleeping apartment at the time", while the second degree is where the crime is committed "in a dwelling-house or sleeping apartment not actually occupied by any one at the time *** or *** in any house within the curtilage of a dwelling-house or in any building not a dwelling-house, but in which is a room used as a sleeping apartment and not actually occupied as such at the time." C.S. § 4232.

The first degree is punishable with death and the second degree with imprisonment in the State's Prison for life, or for a term of years, in the discretion of the court. C.S. § 4233.

Coming then to the record before us and interpreting it with reference to the indictment, the facts in evidence, and the charge of the court--a permissible method of interpretation--we think it is manifest that the verdict "guilty as charged", means "guilty of burglary in the first degree" as charged in the bill of indictment. State v. Whitley, 208 N.C. 661, 182 S.E. 338; State v. Bryant, 180 N.C. 690, 104 S.E. 369; State v. Wiggins, 171 N.C. 813, 89 S.E. 58; State v. McMillican, 158 N.C. 617, 74 S.E. 107. So clearly is this so that no challenge has been made to the sufficiency of the verdict. The record as a whole reveals the clear intent of the jury. State v. Kinsauls, 126 N.C. 1095, 36 S.E. 31. Indeed, the facts...