37 S.E.2d 111 | N.C. | 1946
Criminal prosecution tried upon indictment in which it is charged that the prisoner did, about the hour of 12 in the night of 10 June, 1945, with force and arms, at and in the County of Dare, feloniously and burglariously break and enter the dwelling house of one Doris H. Twiford, then and there actually occupied by Doris H. Twiford and Iva Payne, with intent then and there to ravish and carnally know Doris H. Twiford and Iva Payne, forcibly and against their wills in the said dwelling house then and there being, against the peace and dignity of the State.
There was evidence tending to support the allegations of the bill. Iva Payne testified that she was spending the night with Doris Twiford; that they were sleeping in a room on the second floor; that she was awakened during the night by someone touching her side. When she arose to see what it was, "Doris flashed on the light, and I said, `It is a man.' . . . I recognized him; it was Russell Jordan . . . and when the light shined on him he ran out of the room."
The solicitor, in apt time, announced that he would not ask for a verdict of more than burglary in the second degree.
The defendant offered evidence of an alibi.
Verdict: "Clerk: What say you as to the defendant, Russell Jordan? Do you find him guilty or not guilty as charged in the bill of indictment?
"Juror: We find him guilty of entering the house without permission.
"Clerk: Is he guilty or not guilty as charged in the bill of indictment?
"Juror: Russell Jordan, Guilty."
At the instance of the defendant, the jury was polled, and each by name asked: "Do you find the defendant, Russell Jordan, guilty or not guilty as charged in the bill of indictment?" Each juror replied: "Guilty."
Judgment: Imprisonment in the State's Prison for not less than 12 nor more than 18 years. *156
The defendant appeals, assigning error.
The defendant was tried for burglary in the second degree on an indictment charging him with burglary in the first degree. G.S.,
It is permissible under our practice to convict a defendant of a less degree of the crime charged, G.S.,
No rulings are made on the other exceptions.
New trial.