State v. Potts
| Decision Date | 30 June 1876 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. CATO POTTS. |
If a part of a storehouse, communicating with the part used as a store, be slept in habitually by the owner, or by one of his family, although he sleeps there to protect the premises, it is his dwelling house.
If the person who sleeps there is not the owner, nor one of his family or servants, but is employed to sleep there solely for the purpose of protecting the premises, he is only a watchman, and the store is not a dwelling house.
INDICTMENT for Burglary, tried before BUXTON, J., at Spring Term, 1876, of CUMBERLAND Superior Court.
The prisoner's counsel requested the Court to charge the jury:
His Honor declined the instruction, and charged the jury:
“If you believe from the evidence that John Davis, the prosecutor, had partitioned off a little room in his store for a sleeping room; had put a bed in there and fitted it up for a sleeping apartment, and had employed John A. Lamb to sleep there for the sole purpose of protection to the premises and goods, and that he had slept there for a month for that purpose only; and that the little room had been regularly as a sleeping room for that purpose only for four years by John Davis or others employed by him for that purpose; then in the eye of the law the store-house was a dwelling house, in reference to which the capital crime of burglary could be committed; and it was a dwelling house of John Davis, although John A. Lamb was not his clerk, nor servant, nor a member of his family or household, or in any way connected with him except as an employee, employed by him to sleep there as a guard, for the protection of the premises and goods.”
To the refusal of his Honor to charge as requested, and to the charge of his Honor, the prisoner excepted.
There was a verdict of “guilty,” and thereupon the prisoner moved for a new trial and venire de novo. Rule discharged. Judgment, and appeal by prisoner.
Attorney General Hargrove, Battle & Son and Sutton, for the State .
McRae & Broadfoot, for the prisoner .
There is no statute in North Carolina changing the common law definition of burglary, which is: The breaking and entering of the dwelling house of another in the night time, with intent to commit a felony therein. The question in this case is, was the house into which the prisoner broke and entered the dwelling house of the prosecutor, Davis? The house belonged to Davis and was used as a store; a small space was partitioned off from the store-room for a bed-room, and it had been occupied as such regularly for about four years, either by Davis, or by some clerk, or other person by his license. It was slept in on the night of the breaking, and had been on every night for a month before that night, by one Lamb who was employed by Davis to sleep there for the purpose of protecting...
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Giles v. Com.
...usually or often lodge in the house at night, it is then a mansion house in which burglary can be committed"). 6. See also State v. Potts, 75 N.C. 129, 131 (1876) (citing Hallard's case for the notion that "[i]t is clear that if no person sleeps in a house it is not burglary to break in 7. ......
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State v. Watts, 8419SC1202
...contends that the State failed to prove that the structure at 52 Bell Street was a dwelling house, relying principally upon State v. Potts, 75 N.C. 129 (1876), which held that a building occupied by a watchman for the sole purpose of keeping guard on property contained therein was not a dwe......
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Brown v. State, 28651
...his sleeping apartment, and was not his dwelling house or a place of human habitation. 1 McClain, Criminal Law, p. 473, § 494; State v. Potts, 1876, 75 N.C. 129; State v. Williams, 1884, 90 N.C. 724, 47 Am.Rep. Nor was there any variance between the allegations of the indictment and the pro......