State v. Simpson, 117

• Decision Date: 01 February 1980
• Docket Number: No. 117,117
• Citation: 261 S.E.2d 661,299 N.C. 377
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Samuel Lee SIMPSON.

Page 661

261 S.E.2d 661

299 N.C. 377

STATE of North Carolina v. Samuel Lee SIMPSON.

No. 117.

Supreme Court of North Carolina.

Feb. 1, 1980.

Rufus L. Edmisten, Atty. Gen. by Grayson G. Kelley, Associate Atty. Gen., Raleigh, for the State.

Kermit D. McGinnis, Charlotte, for defendant-appellant.

HUSKINS, Justice:

The trial judge instructed the jury to return a verdict of guilty of first degree burglary or not guilty. Defendant contends the court erred in failing to submit misdemeanor or nonfelonious breaking and entering as a permissible verdict and this constitutes his first assignment of error.

Defendant argues that misdemeanor or nonfelonious breaking and entering is a lesser included offense of first degree burglary; that the distinguishing factor between first degree burglary and nonfelonious breaking and entering is the intent of the defendant at the time he broke and entered; that if the intent is nonfelonious, the breaking and entering could not constitute first degree burglary even though the building unlawfully entered during the nighttime was an occupied dwelling. According to defendant, there was evidence in the record of nonfelonious intent at the time of the breaking and entry. Defendant therefore contends that misdemeanor or nonfelonious breaking and entering is a lesser included offense of the crime charged which should have been submitted to the jury.

The constituent elements of burglary in the first degree are: (1) the breaking (2) and entering (3) in the nighttime (4) into a dwelling house or a room used as a sleeping apartment (5) which is actually occupied at the time of the offense (6) with the intent to commit a felony therein. State v. Wells, 290 N.C. 485, 226 S.E.2d 325 (1976). The bill of indictment in this case alleges that larceny was the felony defendant intended to commit.

Felonious intent is an essential element of burglary which the State must allege and prove, and the felonious intent proven must be the felonious intent alleged. State v. Jones, 264 N.C. 134, 141 S.E.2d 27 (1965).

". . . The particular felony which it is alleged the accused intended to commit must be specified. . . . The felony intended, however, need not be set out as fully and specifically as would be required in an indictment for the actual commission of said felony, where the State is relying only upon the charge of burglary. It is ordinarily sufficient to state the intended offense generally, as by alleging an intent . . . to commit therein the crime of larceny, rape, or arson. (Citations omitted.)" State v. Allen, 186 N.C. 302, 119 S.E. 504 (1923). Accord, State v. Wells, supra.

The trial court is required to submit lesser included degrees of the crime charged in the indictment when and only when there is evidence of guilt of the lesser degrees. State v. Griffin, 280 N.C. 142, 185 S.E.2d 149 (1971); State v. Carnes, 279 N.C. 549, 184 S.E.2d 235 (1971). The presence of such evidence is the determinative factor. State v. Hicks, 241 N.C. 156, 84 S.E.2d 545 (1954). Where all the evidence tends to show that the crime charged in the indictment was committed, and there is no evidence tending to show the commission of a crime of lesser degree, the principle does not apply and it would be erroneous for the court to charge on the unsupported lesser degree. State v. Griffin, supra; State v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971); State v. Manning, 221 N.C. 70, 18 S.E.2d 821 (1942).

The record in this case contains no evidence tending to show that defendant may be guilty of a lesser included offense. The State's evidence positively identifies defendant as the man seen by Mrs. Johnson in her bedroom around 5:30 a. m. on the night of 3 February 1979. It further tends to show that he gained entrance to the occupied dwelling by opening a window which theretofore had been closed and that the television set was missing. When apprehended by Mr. Johnson, defendant's first remark was that he did not take the television set. However, after further denials he led Mr. Johnson to an alleyway and removed the television from its hiding place behind an old car. When apprehended, defendant had a "white cloth" covering his head which was identified by Mr. and Mrs. Johnson as a shirt belonging to their two-year-old daughter. Thus, the State's evidence strongly supports the charge that defendant broke and entered in the nighttime the occupied dwelling of the Johnsons with intent to commit the felony of larceny therein and, in fact, stole the television and carried it away. On the other hand, defendant's evidence tends to show that he was merely walking by the Johnson dwelling when Mr. Johnson came out and grabbed him; that he had never been in the Johnson home and did not burglarize it. There is not a scintilla of evidence from which the jury could find defendant guilty of nonfelonious breaking and entering, and the court properly refused to instruct the jury with reference thereto. An unexplained breaking and entering into a dwelling house in the nighttime is in itself sufficient to sustain a verdict that the breaking and entering was done with the intent to commit larceny rather than some other felony. State v. Hedrick, 289 N.C. 232, 221 S.E.2d 350 (1976); State v. Accor and Moore, 277 N.C. 65, 175 S.E.2d 583 (1970). Thus, defendant was either guilty of burglary in the first degree or not guilty of any offense triable under the bill of indictment. If he committed an assault upon Mrs. Johnson as the State's evidence tends to show, that constitutes a Separate offense, not a lesser included degree of burglary, the crime charged in the bill of indictment. This assignment of error is overruled.

Defendant next contends the court erred in its jury instructions by failing to define burglary correctly in that: (1) it failed to define "intent" and (2) it failed to define "larceny." This constitutes defendant's second assignment of error. For reasons which follow, we hold the assignment has no merit.

The court instructed the jury that burglary in the first degree "is the breaking and entering of the occupied dwelling house of another without his or her consent in the nighttime with the intent to commit larceny." This definition of burglary is correct. "The crime of burglary is complete when one person breaks and enters the occupied dwelling of another, in the nighttime, with the requisite ulterior intent to commit the felony designated in the bill of indictment . . .." State v. Allen, 297 N.C. 429, 255 S.E.2d 362 (1979). Accord, State v. Wells, supra; State v. Bell, 285 N.C. 746, 208 S.E.2d 506 (1974).

With respect to defendant's intent the court charged as follows:

"Now I charge for you to find the defendant guilty of burglary in the first degree, the State must prove . . . that at the time of the breaking and entering, the defendant intended to commit larceny. Now a person acts intentionally for the purpose of this crime when it is his intent to commit larceny. An intent is a mental attitude seldom provable by direct evidence. It must ordinarily be proved by circumstances (from) which (intent) may be inferred. An intent to commit larceny may be inferred from the act itself, the nature and conduct of the defendant, and other relevant circumstances which you find from the evidence that has been tendered here in the last few days."

We think the...