State v. Outlaw

• Decision Date: 31 January 1875
• Citation: 72 N.C. 598
• Court: North Carolina Supreme Court
• Parties: STATE v. JOHN OUTLAW.

72 N.C. 598

STATE

v.JOHN OUTLAW.

Supreme Court of North Carolina.

January Term, 1875.

A storehouse, which is used as a regular sleeping apartment, although so used for the sole purpose of protecting the premises, is a dwelling-house in which burglary may be committed.

In an indictment for burglary, where the house alleged to have been broken into was a dwelling-house belonging to A, though occupied by one of his employees: Held, that charging in the indictment, the house as “the dwelling-house of A,” instead of “a dwelling-house of A,” &c., is not such an inaccuracy as to vitiate the indictment.

It is settled, that if the servant, clerk or employee, occupy the house broken into, but have no estate therein as lessee, or tenant at will, or a tenant at sufferance, it should be charged to be the dwelling house of the owner.

( State v. Jenkins, 5 Jones 480, cited and approved.)

INDICTMENT for Burglary, tried before Kerr, J., at Fall Term, 1874, PERSON Superior Court.

The defendant, John Outlaw, was charged with burglary in two counts, the first charging the house broken into as the dwelling house of one John W. Cunningham, and the second as the house of one James E. Harriss.

Upon the trial the Court directed ten talesmen to be summoned from the bystanders, in addition to the original panel. When the original panel was exhausted, these names were put into a hat and drawn out without the prisoner being informed of his right of challenge thereto. The prisoner did, however, challenge one of the talesmen.

On the trial it was proved that the prisoner did forcibly enter, in the night time, a store-house, the property of John W. Cunningham, one room of which was occupied as the regular sleeping apartment of James E. Harris, a clerk of Cunningham, which room was also used as a counting room. The store was distant about one hundred and fifty yards from the dwelling house of Cunningham. Harris boarded with the family of Cunningham, and had done so for more than four years before the alleged burglary.

The witnesses, Terrell and Cunningham, stated that Harris had no interest in the house, but slept in the store for the protection of the premises. He slept there regularly.

No evidence was offered by the defence. Before the argument, the prisoner's counsel moved the Court to require the Solicitor to elect on which count he would prosecute, which motion was refused.

The prisoner asked the Court to charge the jury that the clerk, Harris, not being the servant of Cunningham, his occupancy of a portion of the building did not make it the dwelling of Cunningham, and as to Harris, there was no evidence that he had any interest in the premises, and as he slept there just to take care of them, there could be no conviction on the second count.

The Court refused to charge as requested, and instructed the jury, among other things, “that the occupancy of a part of the building broken into, by Cunningham's clerk as his regular sleeping apartment, constituted it the dwelling house of Cunningham,” and that “a building occupied by a servant or any employee of the owner as a sleeping apartment, is a dwelling house of the owner,” and also “that if they believed that Harris was the clerk of Cunningham, and slept in the store to enhance the security of the premises, he had such a special property in the building as to justify them in finding the prisoner guilty on the second count.”

The jury rendered a verdict of guilty, and the prisoner moved for a new trial, on the grounds,

1. That the prisoner was not properly informed as to his right of challenge.

2. That the Court erred in refusing the motion to require the Solicitor to elect between the two counts in the indictment, at the conclusion of the testimony.

3. That the Court erred in instructing the jury that the occupancy of a part of the store house broken, by the clerk of Cunningham as a sleeping apartment, constituted it the dwelling house of Cunningham.

4. That the Court erred in instructing the jury that if they believed Harris to be the clerk of Cunningham, and regularly slept in the store, he had such a special property in the premises as would justify a verdict upon the second count.

5. That there was error in the Court refusing to instruct the jury that there was no evidence that Harris had any interest in the premises, and consequently there could be no verdict on the second count.

6. That the Court erred in instructing the jury that a building occupied by a servant or any employee of the owner, as a sleeping apartment, is the dwelling of the owner.

7. That the Court erred in instructing the jury that if Harris slept in the store regularly, although only for the purpose of enhancing the security of the property by his presence, it became thereby a dwelling house, and the...