State v. Smith

• Citation: 189 S.E. 175,211 N.C. 93
• Decision Date: 06 January 1937
• Docket Number: 582.
• Parties: STATE v. SMITH.
• Court: United States State Supreme Court of North Carolina

189 S.E. 175

211 N.C. 93

STATE v. SMITH.

No. 582.

Supreme Court of North Carolina

January 6, 1937

Appeal from Superior Court, Columbus County; M. V. Barnhill, Judge.

Charles Smith was convicted of burglary in the first degree, and he appeals.

Affirmed.

Refusal to charge that intent of accused must have been to commit felony charged within house broken and entered held not error where entire charge left clear impression intent required was to commit in house broken and entered crime charged, since in absence of request for specific instructions, charge was not required to negative felony in another place than house broken and entered.

R. H Burns & Sons, of Whiteville, for appellant.

A. A F. Seawell, Atty. Gen., and Harry McMullan, Asst. Atty. Gen for the State.

SCHENCK Justice.

The defendant is appellant from judgment of death predicated upon conviction of burglary in the first degree.

The State offered evidence tending to show that about 3:30 o'clock a. m., on June 7, 1936, in the nighttime, the house which was occupied by Mrs. Sarah Lyles and her children, was broken and entered by the defendant, and that the defendant came to the bed of Mrs. Lyles and caught her about her legs and then about her waist and told her not to get up, that a struggle ensued, and that in the course of the struggle Mrs. Lyles struck the defendant in the head with a hatchet, and that the defendant struck Clarence Lyles, the 14 year old son of Mrs. Lyles, who had come to the rescue of his mother, with the hatchet. The bill of indictment charged that the house was broken and entered by the defendant with the intent "to forcibly and violently and feloniously ravish and carnally know Mrs. Sarah Lyles, a female occupying and sleeping in said dwelling house at the time without her consent and against her will."

The defendant testified and offered corroborative evidence tending to show that he was elsewhere at the time the offense was alleged to have been committed.

The first exceptive assignments of error are to the refusal of the court to grant the motion of the defendant to dismiss the action properly lodged when the State had produced its evidence and rested its case, and renewed after all of the evidence in the case was concluded. C.S. § 4643.

The argument urged by the appellant under these assignments is that the evidence failed to establish that the person who broke and entered the dwelling house of Mrs. Lyles had the intent to ravish and carnally know her in the house at the time of such breaking and entry. Intent being a mental attitude, it must ordinarily be proven, if proven at all, by circumstantial evidence, that is, by proving facts from which the fact sought to be proven may be inferred. As was said by this court in a case wherein the defendant was charged with burglary, "It must ordinarily be left to the jury to determine, from all the facts and circumstances, whether or not the ulterior criminal intent existed at the time of the breaking and entry." State v. Allen, 186 N.C. 302, 119 S.E. 504, 506.

In the present case there is evidence tending to show that when the prisoner broke and entered Mrs. Lyles' dwelling house he went over to the bed in which she was lying and caught her by the feet, and, after threatening to kill her if she got up, he grabbed her around her waist. There is further evidence tending to show that he fought her for a considerable length of time, never quite subduing her, and that he dragged her from her home and children, and released her only after darkness had faded away. We are of the opinion, and so hold, that this evidence was sufficient for the jury to reasonably infer that the breaking and entering of the dwelling house was accompanied with the intent to commit the felony specified in the bill of indictment, namely, rape.

The second exceptive assignments of error urged by the appellant are to the refusal of the court to allow him to introduce evidence which he contended tended to show that one J. W Yates...