State v. . Fleming
12 S.E. 131
N.C.
1890
Check Treatment
Clark, J.:

The charge of the Court as to what would be a sufficient “breaking” is fully sustained by the precedents. If a door or window is firmly closed, it is not necessary that it should be bolted or barred. State v. Boon, 13 Ired., 244; Whart Cr. Law, §§ 759 and 767, and cases cited. Take the case of raising a window not fastened, although there was a hasp which could have been fastened (Reg v. Hyams, 7 Car. & P., 441, and State v. Carpenter, 1 Houston (C. C.), 367); or where the prisoner, by raising or pulling down the sash, kept in its place merely by pulley-weight (Rex v. Haines, Russ & Ryan, 451); or by pushing open a closed door, not *908 latched (State v. Reid, 20 Iowa, 413); or closed but not locked (Hild v. The State, 67 Ala., 39); or firmly closed, though there was no fastening of any kind on the door (Finch v. Commonwealth, 14 Grat., 643); or Ryan v. Bird, 9 Car & P., where the glass of a window had been cut, but every portion of the glass remained in its place until the prisoner pushed it in and so entered; or where a window was on hinges, with nails behind it as wedges, but which, nevertheless, would open by pushing, and was so opened by the prisoner; in all of which cases the “breaking” was held to be sufficient. If the entrance was either by pulling open the blinds which had been firmly closed, whether fastened by the catch or not, or through the door which had been bolted, the above decisions apply.

The indictment charged the offence as in the old form, without alleging that the dwelling-house was in the actual occupation of anyone at the time of the commission of the crime. This was not required at common law, nor under The Code, § 995, but now, under the provisions of chapter 434. Acts of 1889, the omission of that averment makes the indictment good only as an indictment for burglary in the second degree, and for that offence the defendant was convicted. To constitute a sufficient indictment for burglary in the second degree it is not required to use the negative averment that the dwelling-house was not actually occupied at the time of the commission of the crime. Burglary being sufficiently charged, as at common law, the omission of the additional averment of actual occupation required by the act of 1889 to constitute the capital felony of burglary in the first degree leaves simply the indictment good for the other degree of burglary, in which that averment is not essential. It is not necessary in an indictment for manslaughter to negative the allegation of malice aforethought, though its absence is part of the settled definition of the offence.

*909 We do not understand the provision of the statute that, on an indictment for burglary in the first degree, the jury can return a verdict of burglary in the second degree, “ if they deem it proper so to do,” to make such verdict independent of all evidence. The jury are sworn to find the truth of the charge, and the statute does not give them a discretion against the obligation of their oaths. The meaning of this provision evidently is to empower the jury to return a verdict of guilty of burglary in the second degree upon a trial for burglary in the first degree, if they deem it proper so to do from the evidence, and to be the truth of the matter. This is in analogy to a verdict of manslaughter which may be rendered on an indictment for murder.

If the Court had erred in charging that the defendant could not be convicted of burglary in the first degree, we do not see how the defendant could except thereto. The charge that the jury, if satisfied of the larceny but not of the burglary, could convict of the larceny, was correct. State v. Grisham, 1 Hay., 13. As, however, the conviction was not of larceny, but of the greater olfence, the defendant,- in no view-of the case, was prejudiced. Indeed, the Court might have told them further that they might, if the evidence justified it, find the defendant guilty of breaking into a dwelling-house not burglariously, under The Code, § 996 (an offence which is punishable to the same extent and in the same measure as larceny), but there was no request so to charge, and the omission to charge it is not eiror State v. Bailey, 100 N. C., 528; McKinnon v. Morrison, 104 N C., 354; Taylor v. Plummer, 105 N. C., 56.

The objection taken in this Court that the judgment should be arrested because it is not charged in the indictment that the offence was committed since the act of 1889, is disposed of by the opinion in State v. Halford, 104 N. C., 874, in which a similar point was raised, and in which Mer-rimon, C. J., points out the inapplicability of the case of *910 State v. Wise, 66 N. C., 120, which is again relied on in the argument in this case. Since here the charge and proof are both of an offence committed subsequent to the act changing the punishment, State v. Wise cannot apply. Were this not true, whenever the punishment of any offence is changed by statute it would be necessary that all indictments therefor for all time (until the punishment is again changed) should contain an averment negativing the commission of the offence prior to the passage of the act. Such cannot be required. Should the proof in any case show that, in fact, the crime charged as committed subsequent, was, in fact, committed prior, to the amendatory act, in the absence of any saving clause therein, the principle laid down in State v. Wise would apply.

Affirmed.