60 N.C. 197 | N.C. | 1864
We are of opinion that there is but one question presented by this case upon which the least doubt can be entertained. The bill of indictment charges that the prisoner committed a burglary by feloniously breaking and entering into the dwelling-house of the prosecutor in the night-time, with the intent to steal, take and carry away his personal chattels; and the counsel for the prisoner contended on the trial that the testimony tended to prove that the breaking and entering was with the intent to commit a robbery and not a larceny, (198) *120 and that, therefore, there was a fatal variance between the allegation and the proof. The question thus raised is found upon examination to be against the prisoner. Robbery and larceny are both felonies and of the same general kind, the former being an aggravated species of the latter. Hence, upon an indictment for a robbery, the prisoner may, if the facts proved in evidence justify it, be acquitted of the robbery and found guilty of the larceny.Rex v. Gnosil, 11 Eng. C. L., 400; Regina v. Walls, 61 Eng. C. L., 214; 2 Russ. on Crimes, 91. This shows that the charge of commission of larceny is included in that of the commission of a robbery; and it follows that if the charge be of an act done with intent to commit the former offense, it is included in a similar charge with the intent to commit the latter. His Honor in the court below was therefore fully supported by authority when he said that it made no difference whether the testimony proved that the burglary was committed with the intent to commit a robbery or larceny. If it were proved that the felonious intent were to rob, it included proof of the intent to steal, and therefore it sustained the charge contained in the indictment. No error.
Cited: S. v. Halford,
