State v. Sanders

• Decision Date: 15 December 1971
• Docket Number: No. 123,123
• Citation: 185 S.E.2d 158,280 N.C. 81
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Haywood James SANDERS.

Page 158

185 S.E.2d 158

280 N.C. 81

STATE of North Carolina v. Haywood James SANDERS.

No. 123.

Supreme Court of North Carolina.

Dec. 15, 1971.

Robert Morgan, Atty. Gen., by Millard R. Rich, Jr., Asst. Atty. Gen., for the State.

Carl C. Churchill, Jr., and Tharrington & Smith, Roger W. Smith, Raleigh, for defendant appellant.

HIGGINS, Justice.

We discuss here the defendant's assignments of error in the order of their chronology rather than the order in which they are discussed in the briefs.

The defendant excepted to the court's refusal to dismiss all charges in the indictments on the ground the evidence did not support them. He contended the evidence failed to show the owners of the building did not give the defendant permission for the entrance. The evidence disclosed the building was occupied by a corporation. The secretary of the corporation testified: '. . . (W)e closed at regular hours, about 5:30 P.M. I next returned . . . that night about 12:15 A.M. when I was called to come down to the shop and informed that we had had a break in. . . . Two of our large shop windows had been broken out, in the shop door . . . all the desks had been riffled or gone into and the safe had been damaged. . . . I was able to determine that a tape recorder was missing. . . . We lost two cameras. . . . (O)ne camera was worth about $200.00.' Other property, including money, was also missing.

In addition to the foregoing evidence, the clean-up boy testified he discovered the defendant and a companion working on the small safe. They fled before the police arrived. He identified the defendant as the one who was facing him at the time both were working on the upturned safe on the first floor.

The defendant denied he was in the building. He testified he was at home in bed from about 10:30 p.m. until 9:00 the next morning. There is no evidence he had permission to be in the building. All the evidence shows a breaking. Two men, one of whom was the defendant, were discovered by Grissom working on the small safe. They fled before the officers arrived. '. . . (W)hen defendant relies upon some independent, distinct, substantive matter of exemption, immunity or defense, beyond the essentials of the legal definition of the offense itself, the onus of proof as to such matter is upon the defendant. . . . In such circumstances, a defendant charged with the crime, who seeks protection by reason of the exception, has the burden of proving that he comes within the same.' State v. Johnson, 229 N.C. 701, 51 S.E.2d 186. Nothing in the evidence warrants a finding defendant had permission to enter the building.

The court charged:

'As to the charge of felonious breaking and entering, before the State is entitled to a conviction upon that charge, it must prove to your satisfaction beyond a reasonable doubt, first, that there was either a breaking and entering or an unlawful entry by the defendant; second, that it must be the breaking or unlawful entry of some building wherein merchandise or money or property was kept; third, that the owner of the premises did not consent to the breaking or entering; and fourth, that at the time of such breaking or entering the defendant intended to steal some merchandise or property therefrom.'

'So, if the State has proved beyond a reasonable doubt that the defendant did break or did unlawfully enter a building occupied by Morris and Associates, Inc., With the consent of the owner, against its will and that at the time of doing so he intended to steal anything therefrom; then it would be your duty to find him guilty of felonious breaking or entering, as charged.'

The court, either by oversight, or inadvertence, is recorded as having said 'with the consent . . . against its will' which clearly indicates the court said, or intended to say 'without the consent . . . against its will.' In view of the charge as a whole and the total absence of any evidence the owner consented to the entry, it is apparent the jury could not have misunderstood the court's language. The use of the words 'with the consent' rather than 'without the consent' was not prejudicial. 'This was a Lapsus linguae, but it is not perceived wherein it was hurtful. We regard it as a harmless inadvertence.' In re Will of Wallace, 227 N.C. 459, 42 S.E.2d 520. See also State v. Truelove, 224 N.C. 147, 29 S.E.2d 460. Neither the defendant nor the State presented any evidence the defendant had the owner's consent to break into the building, steal personal property, and attempt to open the safe. The defendant's exception to the court's failure to dismiss the charge of felonious housebreaking is not sustained.

The indictment in #71 CR 5309 charged the offense defined in G.S. 14--89.1 which provides:

'Safecracking and safe robbery.--Any person who shall by the use of explosives, drills, or other tools unlawfully force open or attempt to force open or 'pick' the combination of a safe or vault used for storing money or other valuables, shall, upon conviction thereof, receive a sentence, in the discretion of the trial judge, of from ten years to life imprisonment in the State penitentiary.'

When the jury returned to the courtroom and announced it had agreed on a verdict, the foreman first announced the jury found the defendant guilty of safecracking. At the request of defense counsel, the jury was polled. During the poll one of the jurors stated he understood the verdict to be guilty of 'attempted safecracking.' The court again explained to the jury that it could find the defendant guilty of safecracking, or guilty of attempted safecracking, or not guilty. The court ordered the jury to be polled after the explanation as to possible verdicts and each individual juror stated the verdict to be 'guilty of attempted safecracking' and each said he still assented thereto. The court accepted the verdict as disclosed by the poll and ordered it recorded in the minutes of the court.

The defendant sought to challenge the verdict on the ground it was neither authorized by the indictment nor by the statute, the latter being G.S. § 14--89.1. A verdict should answer the issue...