State v. Smith
| Decision Date | 21 October 1931 |
| Docket Number | 89. |
| Citation | 160 S.E. 577,201 N.C. 494 |
| Parties | STATE v. SMITH. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Vance County; Cranmer, Judge.
James Smith was convicted of burglary in the first degree and of rape, and he appeals.
No error.
The prisoner was prosecuted upon a bill of indictment in which it was charged "that James Smith on the 23rd day of May 1931, about the hour of 9 in the night of the same day, with force and arms, at and in the County aforesaid, the dwelling house of Benny Cross and his wife, Estelle Cross, there situate, and then and there actually occupied by the said Estelle Cross, unlawfully, wilfully, feloniously and burglariously did break and enter, with the felonious intent her, the said Estelle Cross, a female person, violently and against her will feloniously to ravish and rape, and carnally know; and then and there in the said dwelling house, he the said James Smith, unlawfully, wilfully, feloniously and burglariously did assault the said Estelle Cross, a female person, in the said dwelling house, then and there being and her, the said Estelle Cross unlawfully, feloniously and burglariously, by force and against her will, did ravish rape and carnally know, against the form of the statute in such case made and provided, and against the peace and dignity of the State".
The jury returned for its verdict, "Guilty of burglary in the first degree and of rape." Thereupon the prisoner was sentenced to death by electrocution, and from the sentence pronounced he appealed to the Supreme Court upon assigned error.
A. A. Bunn and J. M. Peace, both of Henderson, for the prisoner.
Dennis G. Brummitt, Atty. Gen., and A. A. F. Seawell, Asst. Atty. Gen., for the State.
The record contains seven assignments of error, only one of which is discussed in the prisoner's brief. The fifth, sixth, and seventh are formal, and the first and third, which embody exceptions to the court's refusal to quash the indictment and to dismiss the action, are clearly without merit.
The second assignment consists of the prisoner's exception to the denial of his motion to require an election between the two counts in the bill. The ruling was correct. The motion was made before any evidence had been introduced, and at this stage the judge was not required to restrict the trial to any special count. He could not then intelligently have restricted it because he did not know what the evidence would be. State v. Parish, 104 N.C. 679, 10 S.E. 457; State v. Davenport, 156 N.C. 596, 72 S.E. 7. Besides, as suggested in the first of these cases, the weight of authority has established the rule that it rests in the sound discretion of the nisi prius judge to determine whether he will compel an election at all, and, if so, at what stage of the trial, particularly when the offenses charged are of the same grade and subject to identical punishment. State v. Switzer, 187 N.C. 88, 121 S.E. 43; State v. Jarrett, 189 N.C. 516, 127 S.E. 590. In fact, the principle maintained in these and other decisions of like tenor is crystallized in the act of 1917: "When there are several charges against any person for the same act or transaction or for two or more acts or transactions connected together, or for two or more transactions of the same class of crimes or offenses, which may be properly joined, instead of several indictments, the whole may be joined in one indictment in separate counts." C. S. § 4622.
The fourth exception, on which the appellant chiefly insists, is addressed to the court's failure to instruct the jury that upon the evidence in the case it would be permissible to convict the prisoner of "lesser degrees of the major offenses charged in the bill of indictment." If the court erroneously declined to give the substance of this instruction with respect to both counts, the prisoner is entitled to a new trial. Whether the evidence was such as to justify the instruction is the question to be determined.
The crime of burglary as defined at common law has been divided by statute into two degrees. If committed in a dwelling house, or in a room used as a sleeping apartment in any building, and any person is in the actual occupation of any part of the dwelling or apartment at the time the act is done, the crime is burglary in the first degree; but, if committed in a dwelling house or sleeping apartment not actually occupied by any one at the time the act is committed, or if it be committed in any house within the curtilage of a dwelling house or in any building not a dwelling house, but in which is a room used as a sleeping apartment and not actually occupied as such at the time the act is committed, it is burglary in the second degree. C. S. § 4232.
The crime of rape includes an assault with intent, punishable as prescribed by statute. C. S. § 4205. Also it is provided by statute that upon the trial of any indictment the person may be convicted of the crime charged therein or of a less degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a less degree of the same crime. C. S. § 4640.
The statute last cited is applicable to prosecutions for rape and for burglary in the first degree. There are no degrees...
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