*1 IN THE SUPREME COURT. State Poster. v. STATE v. FOSTER. (Filed 23, 1901.) December Degree J.8S9, BURGLARY —First Gh. —Acts J/áJ/. , 1889, 434, creating degree's burglary Under iicts Ch. two person may be convicted of in the first for into a storehouse where there is bed-room at tached, regularly sleeps, and in which one and is time, entering is a into bed-room. INDICTMUNT Ben against Foster, R. S. Mills Gates, Harry and Franls beard Fredеrick Moore Johnston, by Judge at June jury, of tire Cburt (Special) Term, 1901,. Superior BüNCOMbj? From a verdict of County. judg- ment the defendants thereon, appealed. Gilmer,
Broten for Robert D. Shepherd; Attorney-General, Garter, and Frank for the State. Brown,
Thomas and M. Settle W. for the defendants. FunciiES, O. J. defendants are indicted and cоn victed of The facts are substan degree. as follows: D. J. McClelland is thei owner of a store tially the, aat called a few place “Emma,” miles from of Ashe- city in the county Buncombe. Samuel IT. Alexander ville, his and had been clerk, 'than three more boarding years of McClelland and in the store. There family room said store fitted and furnished with a bed other furniture as sleeping apartment, which said Alexander his trunk and kept belongings, there, and had done so for three slept years more. On the of the 8th of he closed night February, all fastened the windows and outer doors of said store N. O.] Fostek. *2 and between anid nine o’cloсk went into' bis eight customer and not some
bed-room, but, come, thinking might in to he left a the store being ready retire, lamp burning room. wall There was between his partition sleeping-room and the there in which and shut doorway store-room, shutter was ter, the ever closed and was not closed rarely that night. Soon after he-went into his he sleeping room, heard a noise one of the: outer doors the store building, and, was some one to- trade, he went thinking wanting the door and asked who. was when some onei answered there, that we Hp come wanted wanted some coffee and in, flour. then took down the bar in used the unlockеd door, securing the and when he same, had the door about twelve opened still inches, the his having knob in two-men forced the hand, door open, house, rushed covered him with told pistols, Mm to hold his hands, come they business. With the still drawn pistols marched Mm upon him-, they into bed-room, his Mm. -where searched he the they things had in the his- rоom, other taking pistol They things. then carried him into the store-room an and made effort break into- the postoffice there -department, being postoffice kep-t there. Rut not in into- succeeding this, readily getting it for they abandoned there present, they saying supposed in nothing at-' it, except postаge stamps, would tend to them later. then turned their attention to an They iron safe and him to compelled assist in one of opening, it, them still his on him. holding After the safe pistol was open and one o-f them what going through it, taking money other valuables he a cat made a found, noise the back paid o-f the and thе store, man with the on him pistol bearing turned Ms attention to- as that; and, he did Alexander so-, seized his own had taken from room pistol Ms and which the man who was safe had laid on the end of the robbing and shot the man and also shot the robbing safe, counter, 45-129 IN THE SUPREME COURT. Foster. man meantime, whose attention man, but, were all the cat shоt Alexander. They
had been attracted by n badlyshot, died. but none of them of Alex- made this from thei testimony
We have summary facts, to' who was the witness examined as ander, only stand, neither of the the witness prisoners going There no other witness to transaction. as and R. indicted two other Mills S. Gates, persons, Henry crime, abеtting being present, aiding committing John- tried at the anid Prank same time with. Ren Poster con- were all who were They charged principals. ston, *3 of of the sentence victed the first burglary this all to death pronounced upon them, they appealed being Court. that to
There are several but all of them seem еxceptions, resolve into one themselves discussion require question, in this the argument that the only pressed upon question for stated counsel the prisoners Court. learned Indeed, That in his that the case turned this one upon point. argument of 1889, changing is this: That under Laws Chapter 43-1, in thei crime burglary, the law and degrees еstablishing-two a can not be convicted of party burglary and one a where is a bed-room, into store-house there breaking there, entering unless is a regularly sleeps it is is an into' the bed-room. This important question, at it or called to> that has not before pressed singular Pearson, 119 N. v. The case State tentiоn Court. C., it does State, was attention by called our in this case. discussed seem to' be authority point upon find and we unable to' no case was Therefore, cited, case, this or made discusses, that even thei decides, point this to construe statute. and it devolves us upon entering law was the common Burglary And intеnt. time with felonious night' dwelling-house N. 707 1901. 0.] v.
State
Fostee.
was the law of
in.
this
this
burglary
State until the
passage
the Act of 1889.
In this definition were
houses
included
such,
used as a
part
as smoke-houses
dwelling,
and pan
tries within the
It was not the
curtilage..
fact alone that
were within
that made it
curtilage
break
burglary
into' and enter’
but it
them,
was the fаct that
were used as
as -well as
-within
dwelling,
curtilage.
A store-house or a
within the
though
workshop,
curtilage,
were not such houses as would make one
break and enter at
with a felonious intent.
night
State v.
Jenkins,
It is an act to law in relation to- “chаnge the crime of It divides the crime burglary.” into' two first and degrees, second. first The is with death and the second de- punished with in the gree imprisonment or less penitentiary life, at the of term, discretion the Court. The first is degree where the crime is “in a in a committed or dwelling-house, room as a in used sleeping apartment аny GOUET. IN THE SUPEEME Postek. said dwelling-, of of in .part is tire actual occupation
person of commission the time of tbe at or apartment bouse sleeping in tibe first degree:” it shall crime, said burglary in a dwelling- committed said crime be tire “Second. If not occupied by anyone actually apartment house com- оr if it be of tbe crime, time of commission at the of a dwelling-house, in within tbe curtilage mitted bouse ány which there in in dwelling-house, building occu- and not used actually is a room sleeping apartment it said of crime, as such the time of the commission at pied he in. the shall second degree.” burglary into' consideration must be taken the statute object in construing and both sections must he construed together, that the the Legis the Act It is manifest object existed, then the law of as it lature was modify burglary law, and reduce of its execution. At common the severity was not should be in tbe anyone necessary dwelling-house Blackstone, was at the tbе crime committed. Obitty time law this star 225. And this was the in State; page of 1889. Un was until the the Act penalty death, passage der that which is the law now, constitute burglary act, and make it a it is necessary offense degree capital is that some be in a wben tire crime one should dwelling-house tbe if is committed, and, not, there is death; second which is punished also; law, common this until Act of build State, 1889, within and used in connection with ings curtilage were held to be dwelling-house dwelling-house, them, and the crime committed in. one of But Act to. en death. under the punishment break, 1889, such etc., a house and the second ter, law and the Under the common punishment imprisonment. law of this State until the Act to commit the crime in a or other house where store-house *5 N. 1901. C.] Postee. or as it was apartment, regularly usually occupied burg such, and the lary, was death. This was not so be punishment it a cause was store-house or other because it was house, held to be a and the wаs death. divelling-house, punishment But under the Act of to the offense 1889, make burglary punishable death, into a storehouse or entry other house where one or does usually sleeps, constitute in the first degree, burglary unless the breaks and enters the burglar sleeping apartment. A store-house stands as the same preсisely upon ground other house where there is in which the apartment, ha,ye burglary committed before the Act might and must be the same given meaning,.
We are forced to this construction in.order give to that meaning statute which constitute says, the crime of in tire first it “in a must’be burglary room used as a sleeping apartment аny buMding, is in the person actual of said occupation dwelling-house at the time of sleeping apartment the commission said it shall crime, be burglary degree.” Were we not to the Act of 1889 this it give construction, would leave the law of the same as store-houses and other houses where one having apаrtment regu- larly as was before the Act of usually slept, just This we are not And the second section justified doing. * * * provides: “If the said crime be committed in at the sleeping apartment actually occupied by anyone * * * time of the commission of it shall crime, in the second It seen that degree.” is, therefore, thе statute malees it that the necessary sleeping apartment should be some of- one the time the actually occupied fense is or the crime is de- committed, in the second that such gree; thereby clearly showing buildings,
710 THE COUET. IN SUPBEME Foster. v. and other in which there is sleeping' store-houses houses as there are nо longer regarded dwelling-houses, apartment, ais olear between them and dwelling-houses. distinction made In and is entry dwelling-houses, the time. first if is in the house at degree, anyone part of In other where there is apartment, houses, sleeping and must and entered, must be broken in sleeping apartment be actually occupied. deter-
The then comes to' the facts this case question mine in whether the prisoners had was There degree. regular sleeping apartment and he for three by clerk, Alexander, years, occupied was the bui’g- when his actually present sleeping apartment larious made. door assault was The outer and windows apart- and door to his his securely fastened, room, sleeping ment, was trick and fraud prisoners procured open. by him to forced into' the unfasten the when their way door, they their house his heroic efforts to them. prevent Upon against an entrance covered him gaining pis- in this way, and him into' his tols, him throw marched hands, made his and went his sleeping there, presence, they apartment, his desk other his through taking pistol, purse things, him marched into the store-room They them property. at the of their above muzzle related pistols, where tragedy was enacted. constitute the Everything necessаry 1889, pres- under the statute of if into ent this there was a case, pronounced where, understand, And this is if we apartment. sleeping them. If rest their This can not avail defence. prisoners had the door to the been closed apartment it, it may not broken and entered into fastened, be their this door defencе would availed them. But as have was), is that ever closed evidence (and rarely the outer his doors windows were reliance protection. TEEM, N. O.] Fostek.
State him and gave to his apartment, were tbe doors Tbey tbe tbe law. protection sleep- into-bis carried Alexander’s also*bold tbat
We of a loaded influence tbe and under force, ing apartment constructive was a breaking pistol bearing upon bim, —a tbat tbe statute we do- understand breaking —as *7 Mills mode of breaking. in tbe law as to tbe makes any change were and and with abetting, and were aiding Gates charged and with care their exceptions convicted. have examined We see, far as we can So do not think can be sustained. tbey bad a fair trial. have tbey tbe below of Court
As we see no tbe error, judgment Affirmed. concur, opinion J., concurring part.
Douglas, I Mills and Gates. far to tbe defendants so as it relates except bed-room tbat Alexander’s It from the evidence appears annex end of an was in one in main store not tbe annex, of the into tbe other with a door thereto, leading There into tbe main store-room. and a door from there leading store-room, bed-room into tbe was no direct from tbe opening tbe other part thrоugh which could be reached only by going were fact and in of tbe annex. Both these doors were open, and John tbat tbe defendants Foster shut. I think rarely of their in view ston guilty This manner did. tbey Alexander’s bed-room entering to'amount, certainly to-me to a constructive seems breaking, of glass than a latch or pane more so raising breaking merely win tbe tbe mere something through purpose reaching the¡ tbe ma in the view taken dow. even band, On at all no if there bad been communication Court, jority if inner door between bed-room and the tbe store-room, tbe not bad would been the store-room fastened, merely entering have enter been but would have been and burglary, IN THE SUPREME COURT. Foster. The Code. under section.
ing store-house, punishable of two Johnston, The defendants Foster guilty in addi the latter crimes, burglary, store-breaking it. to the former dependent upon tion necessarily I I with differ the Court. Here comes the point upon anid with Mills Gates can not recall evidence connecting do not ap into the store. They crime except murderous assault to have had to do pear anything his bed-room. Suppose Alexander, entering in Ms locked Alexander been securely bed-room, him in way, without Johnston, that Foster disturbing meat, piece broken into the store stolen had merely If had not ? been of burglary would have guilty have could been those outside guilty. waiting guilty, constructively of one crime we make aiders and abettors Can within contem crime not and distinct another We carefully distinguish of their act ? must original plation case. the accidental facts betwеen the essential *8 as accomplices' were defendants. Mills Gates guilty have doubts whether I grave crime but very store-breaking, I iu law of and sucb doubts can be held burglary, they life. resolve iu favor human must may are this case which There: circumstances in peculiar tend to swerve We are naturally indignant our judgment. whose cour- splendid assault outrageous upon Alexander, devotion to command our admiration duty age manly blind our but vu should not let our judg- respect; feelings, will Those who committed the assault pay. penalty ment. do of their those who with it, lives, nothing who. never than probably contemplated greater should for the offense which theft, they be only punished are to the are If accessories guilty. they before fact bed- when certainly present burglary, room was then under section entered, punishable N. O.]
State v. Fostee. be whto shall “Any Tbe that, person Code, provides in either of an before fact convicted as accessory shall impris- murder, rape, crimes arson, for life in the oned penitentiary.”