61 N.C. 186 | N.C. | 1867
Upon the trial it appeared, by the confession of the prisoner, that he and others had obtained admittance in the night time into the dwelling-house of one Moore, and robbed him of money and other things, under the following circumstances: Near midnight Moore, being in bed, with his door closed, heard a knock, and asked, Who is there? when the prisoner replied that it was Ned Moore asked, What do you want, Ned? The prisoner replied that he had a letter for him. Moore sprang out of bed and started to the fireplace to strike a light, opening the door as he passed. As Moore was stooping at the fireplace the prisoner came behind him, pinioned his arms, tied him and committed the robbery.
It was also shown that Ned was the name of a negro man who was supposed to be a messenger between Moore and a young lady in the neighborhood; also that the prisoner had confessed that he had imitated Ned's voice to deceive Moore.
Under the charge of the judge the prisoner was found guilty, and thereupon sentence of death was pronounced upon him. A new trial was moved for and refused, and the defendant appealed. *159 There is no error. The prisoner, by artifice and fraud, procured the door to be opened, and immediately thereafter entered. This, according to all of the authorities, amounts to a constructive breaking.
In S. v. Henry, 9 Ire., 463, the judges were unanimous in the (187) opinion that when the entry was made immediately after the fastening of the door was removed, or so soon thereafter as not to allow a reasonable time for shutting the door and replacing the fastening, it amounted to a breaking. In that case the door was left unfastened, and the prisoner did not enter until after the lapse of some ten or fifteen minutes. A majority of the Court, being unwilling to extend the doctrine of constructive breaking, held that there was no breaking, because no case had carried the doctrine to that extent. The other member of the Court thought that it was a breaking.
This opinion will be certified, to the end that judgment may be pronounced in the court below.
PER CURIAM. There is no error.
