State v. . Staton
133 N.C. 643
N.C.
1903
Check Treatment

The defendant was put upon trial upon the following bill of indictment: "The jurors for the State upon their oaths present that Fate Staton, late of the county of Pitt, with force and arms at and in the county aforesaid, unlawfully did break and enter (otherwise than by burglarious breaking) the dwelling-house of one Bettie Grimes, with intent to commit a felony, to wit, with intent the goods and chattels of the said Bettie Grimes, then and there in said dwelling-house being found, feloniously to steal, take and carry away, and with intent feloniously and violently and against the will of the said Bettie Grimes to *Page 494 carnally know and abuse, against the form of the statute," etc. The defendant moved to quash the bill of indictment for the reason that the bill attempted to particularize the felony, with the intent to commit which the defendant is alleged to have entered the house of the prosecutrix, to wit, that of larceny or rape, and that the language used in the bill did not amount to a charge of rape. The motion was overruled, and the defendant excepted.

His Honor correctly refused the motion to quash. The language of the bill in charging the intent with which the defendant entered the house is sufficient. S. v. Titus, 98 N.C. 705; S. v. Powell, 94 (644) N.C. 965 (970). The State introduced testimony tending to show that at 12 o'clock on the night of 28 July, 1902, the defendant broke into the house of the prosecutrix by prizing open the window-sash, and that the prosecuting witness was in the actual occupation of the house at the time, and that the defendant was in his night-clothes when he entered and left the house, and that he did not attempt to steal anything. The defendant offered evidence tending to show that he did not enter the house, and to prove an alibi.

The defendant requested the court to charge the jury that the defendant cannot be convicted under the bill of indictment for the reason that if they believed the evidence for the State to be true, and that should the evidence convince them that the defendant was the person who broke into the house, in that event the defendant would be guilty of burglary in the first degree, and as this indictment and trial would not prevent his being put on trial for the greater offense of common-law burglary, they would acquit the defendant. The court declined to give the instruction, and the defendant excepted. His Honor committed no error in this respect. The defendant's prayer was based upon the assumption that his conviction upon this bill would not sustain a plea of former conviction upon an indictment for burglary based upon the same facts. This view seems to be met and disposed of in S. v. Cross, 101 N.C. 778, 9 Am. St., 49. Smith, C. J., referring to S. v. Shepard, 7 Conn. 54, says: "It was decided that a conviction of an attempt to commit rape upon an indictment so charging was proper when the proof showed the rape was accomplished, and such conviction was a bar to another indictment preferred for the rape. And so it is held in S. v. Smith, 43 Vt. 324, and the general principle is laid down that when an offense is a (645) necessary element in and constitutes an essential part of another offense, and both are in fact but one transaction, a conviction or acquittal of one is a bar to the prosecution of the other." This authority fully sustains his Honor's refusal to instruct the jury as requested. The defendant did not ask his Honor to instruct the jury that there was not *Page 495 sufficient evidence of the intent with which the defendant entered the dwelling. Such objection must be taken before verdict, and it cannot be made for the first time in the Supreme Court. S. v. Glisson, 93 N.C. 506.

No error.

Cited: S. v. Goffney, 157 N.C. 625.