State v. . HooperState v. . Hooper
- Reporters:
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- Before:
- Denny
Thе exceptions to the refusal of his Honor to grant the defendant’s motiоn for judgment as of nonsuit, on the ground that the evidence is insufficient to support a verdict of guilty of burglary in the first degree, cannot be sustained.
It is not necеssary that the intended felony be committed in order to establish the crime оf burglary. The question is : Wh.at was the intent of the defendant at the time of the breaking and entry?
Evidence as to the conduct of the defendant after the breaking and entry may be considered by the jury in ascertaining the intent of the accused at the time of the breaking and entry. But where there is a breaking and еntry into the dwelling house of another, in the nighttime, with the intent to commit a felony therein, the crime of burglary is consummated, even though the accused by reаson of unexpected resistance or the outcry of his intended victim, mаy abandon his intent to commit the felony. S. v. Allen, 186 N. C., 302, 119 S. E., 504; S. v. McDaniel, 60 N. C., 245; S. v. Boon, 35 N. C., 244.
The defendant assigns as error the fоllowing portion of his Honor’s charge: “If you return a verdict of not guilty as to burglаry in the first degree and not guilty of attempt to commit burglary in the first degree, you will thеn consider whether or not the defendant is guilty of burglary in the second degreе, the burden being on the State to so satisfy you, that the defendant broke and entered the dwelling house of the prosecuting witness, Mrs. Julia Phillips, with a felonious intеnt to commit rape, and that it was not then and there occupied by hеr as a dwelling house, and in the nighttime, and you so find beyond a reasonable dоubt, the burden being on the State to so establish, then the Court charges you that you may in such event render a verdict of guilty of burglary in the second *635 degree еven though you find facts sufficient to constitute burglary in the first degree; thereforе, in this case the defendant is entitled as a matter of right to have you gentlemen consider whether he is guilty of burglary in the second degree, if you deem it рroper to do so, or not guilty.” Later in the charge his Honor said: “You havе a right, gentlemen of the jury, to render a verdict of guilty of burglary in the second dеgree in this case although the evidence may tend to show that the building was actually occupied as sleeping quarters by the prosecuting witness аnd it was in the nighttime, and that the breaking and entering was for a felonious purpose and intent and that it was in the nighttime.” We think the above instructions may have been confusing to the jury. All the evidence on this record tends to show that the aрartment of the prosecuting witness was actually occupied at thе time of the alleged burglarious entry. And, there is no evidence to suppоrt a verdict of burglary in the second degree as defined by the statute, G. S., 14-51.
Ordinarily whеn the evidence tends to show the defendant is guilty of the more serious offense charged in the bill of indictment, a charge on the lesser degrees of the crime will not be. held for error. S. v. Wise, 225 N. C., 746, 36 S. E. (2d), 230. But here we think his Honor may have misled the jury into believing that their right to bring in a verdict of guilty of burglary in the second degree, as authorized by statute, G. S., 15-171, was dependent upon the finding of certain facts as set forth in the charge on burglary in the second degree. Moreover, the later instruction, as set forth above, relative to the right of the jury to bring in a verdict of guilty of burglary in the second degree, notwithstanding the evidence tended tо show that the building was occupied, etc., does not comply fully with the provisions- of the statute, G. S., 15-171. The statute gives the jury the right to render a verdict of guilty of burglаry in the second degree, not only where the evidence tends to shew сertain facts, but, “upon the finding of facts sufficient to constitute burglary in the first degrеe as defined by the statute — if they deem it proper so to do.” This instruction is mаndatory. S. v. McLean, 224 N. C., 704, 32 S. E. (2d), 227.
For the reasons herein stated there must be a new trial, and it is so ordered.
New trial.