State v. Spain

• Decision Date: 04 November 1931
• Docket Number: 321.
• Citation: 160 S.E. 825,201 N.C. 571
• Parties: STATE v. SPAIN.
• Court: North Carolina Supreme Court

160 S.E. 825

201 N.C. 571

STATE v. SPAIN.

No. 321.

Supreme Court of North Carolina

November 4, 1931

Appeal from Superior Court, Durham County; Frizelle, Judge.

Arthur Spain was convicted of burglary in the second degree, and he appeals.

New trial.

Criminal prosecution tried upon an indictment in which it is charged that the prisoner did, about the hour of 12 o'clock on the night of April 29, 1931, with force and arms, at and in the county of Durham, feloniously and burglariously break and enter the dwelling house of one Mrs. S. P. Arrington, then and there actually occupied by the said Mrs. S. P. Arrington and others, ""with intent the goods and chattels of the said Mrs. S. P. Arrington and others in the said dwelling-house then and there being, then and there feloniously and burglariously to steal, take and carry away against the peace and dignity of the State."

There is a second count in the bill charging the felonious breaking and entry of the said occupied dwelling house, in the nighttime, "with intent the goods and chattels of the said Mrs. S. P. Arrington, in the said dwelling-house then and there being, then and there feloniously and burglariously to steal, take and carry away and then and there in the said dwelling-house of the value of the goods and chattels -- of the said Mrs. S. P. Arrington, in the said dwelling-house then and there being found, then and there feloniously and burglariously did steal, take and carry away against the peace and dignity of the State."

The following testimony of Miss Nellie McLennon was the principal evidence offered against the defendant: "I room with Mr and Mrs. S. P. Arrington, No. 713 Shepherd St., where I was on the morning of April 29th. I was awakened around four o'clock in the morning with something cold clasped around my left wrist and ankle and I took my right hand to discover what the trouble was and it was a man's hand and, of course, I was not expecting a man to be in my room, and I began to scream for help. I think I was held about a minute and I called the young lady, Miss Laura Breeze, who was in bed with me to put on the light; a man was in the room; and she could not understand what was happening and I could not wake her right away, and so she finally realized something was the matter, and both of us together screamed, waked Mrs Arrington. Mrs. Arrington, after hearing my screams came and put on the hall light and then I asked her to put on the room light and she put on the room light, and by that time no one was in the room. She went to the telephone trying to get the police station and they did not answer at first. I was looking at the window all the while and I called her. I said he is coming back, he is coming back. I raised up in the bed and talked to him at the window."

The witness further stated that the window was raised; that she saw a yellow man at the window--saw his face and head inside the screen--that it was the defendant; that she had seen him a number of times before, as he had worked around in the neighborhood for about two years. "I heard Arthur Spain lived in Mr. Christian's home for one or two years. During that time I saw him three or four times a day, because I walked by there on my way to work. I have no idea how many times I have seen him, and know his face."

When the case was called for trial, and before the jury was impaneled, the solicitor announced that the state would not ask for a verdict of more than burglary in the second degree.

The defendant demurred to the state's evidence and rested his case.

Verdict Guilty of burglary in the second degree.

Judgment Imprisonment in the state's prison of not less than 25, nor more than 30, years.

The defendant appeals, assigning errors.

B. Ray Olive and M. M. Leggett, both of Durham, for appellant.

D. G. Brummitt, Atty. Gen., and A. A. F. Seawell, Asst. Atty. Gen., for the State.

STACY, C.J. (after stating the case).

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