State v. . Morris
2 S.E.2d 554
N.C.
1939
Check Treatment
Stacy, O. J.

To seek to injure another or to take advantage of him while he is disarmed by sleep is to evince a heart devoid of social duties *554 and a mind fatally bent on mischief. Such is the stuff of which house-thieves are made. Hence, burglary was regarded at the common law as one of the worst of crimes. 9 Am. Jur., 239. In its highest degree, it is still a capital offense in North Carolina. The purpose of the law was and is to protect the habitation of men, where they repose and sleep, from meditated harm. “A burglar (or the person that committeth burglary),” says Lord Coke, 3 Inst., 63, “is by the common law a felon, that in the nighttime breaketh and entereth into a mansion house of another, of intent to kill some reasonable creature, or to commit some other felony within the same, whether his felonious intent be executed or not.” To a conviction, under the common law, it was necessary to allege and prove: first, the breaking; second, the entering; third, that the house, broken and entered, was at the time a mansion-house; fourth, that the breaking and entering was in the nighttime; fifth, that the breaking and entering was with intent to commit a felony therein. S. v. Whit, 49 N. C., 349; 9 Am. J ur., 240. And such was the law of burglary in this State prior to the enactment of ch. 434, Public Laws 1889, now codified as C. S., 4232, 4233 and 4641, which avowedly was enacted “to amend the law in relation to the crime of burglary” by dividing the offense into two degrees, first and second, with certain designated differences between the two, and with different punishments prescribed therefor. S. v. Foster, 129 N. C., 704, 40 S. E., 209.

The first degree is where the crime is committed “in a dwelling house, or in a room used as a sleeping apartment in any building, and any person is in the actual occupation of any part of said dwelling house or sleeping apartment at the time,” while the second degree is where the crime is committed “in a dwelling house or sleeping apartment not actually occupied by any one at the time ... or ... in any house within the curtilage of a dwelling house or in any building not a dwelling house, but in which there is a room used as a sleeping apartment and not actually occupied as such at the time.” C. S., 4232.

The first degree is punishable with death and the second degree with imprisonment in the State’s Prison for life, or for a term of years, in the discretion of the court. C. S., 4233.

Coming then to the record before us and interpreting it with reference to the indictment, the facts in evidence, and the charge of the court —a permissible method of interpretation — we think it is manifest that the verdict, “guilty as charged,” means “guilty of burglary in the first degree” as charged in the bill of indictment. S. v. Whitley, 208 N. C., 661, 182 S. E., 338; S. v. Bryant, 180 N. C., 690, 104 S. E., 369; S. v. Wiggins, 171 N. C., 813, 89 S. E., 58; S. v. Millican, 158 N. C., 617, 74 S. E., 107. So clearly is this so that no challenge has been made to the sufficiency of the verdict. The record as a whole reveals the clear *555 intent of the jury. S. v. Kinsauls, 126 N. C., 1095, 36 S. E., 31. Indeed, the facts essential to the establishment of the capital offense are not in dispute. S. v. Foster, supra; S. v. Whit, supra. They appear in part from the defendant’s own evidence.

Under the principle stated, and owing to the clearness of the evidence and the very definite and precise instruction of the court as to the terms of the verdict, we find no difficulty in giving the instant verdict significance and upholding it as sufficiently determinative by reference to the indictment, the facts in evidence, and the charge of the court. S. v. Wiggins, supra.

We deem it proper to say, however, that this method of interpreting a record is not a desirable one in a capital case where the pitfalls attendant upon such procedure are wholly disproportionate to the ease with which they may be avoided. S. v. Murphy, 157 N. C., 614, 72 S. E., 1075. In a matter of supreme importance, the jury should definitely and expressly say of what degree of crime they convict the prisoner, and the verdict should be recorded as rendered. There should be no room for doubt or mistake. S. v. Matthews, 191 N. C., 378, 131 S. E., 743.

The only question debated on argument and in brief is whether the court committed error in refusing to submit the case to the jury on the charge of burglary in the second degree as requested by the prisoner in his prayer for special instruction. The authorities answer in the negative. S . v. Spain, 201 N. C., 571, 160 S. E., 825; S. v. Ratcliff, 199 N. C., 9, 153 S. E., 605.

It is provided by C. S., 4641, that upon an indictment for burglary in the first degree, the jury may render a verdict of burglary in the second degree “if they deem it proper so to do.” But this, according to our previous decisions, does not, as a matter of law, authorize the trial court to instruct the jury that such a verdict may be rendered independently of all the evidence. S. v. Johnston, 119 N. C., 883, 26 S. E., 163; S. v. Alston, 113 N. C., 666, 18 S. E., 692; S. v. Fleming, 107 N. C., 905, 12 S. E., 131. It has been said, however, that in such a case, a verdict of burglary in the second degree, if returned by the jury, would be permitted to stand, notwithstanding evidence of occupancy of the dwelling house at the time of the alleged offense. S. v. Smith, 201 N. C., 494, 160 S. E., 577. And this upon the principle that the verdict, being favorable to the prisoner, may not, for this reason, be successfully challenged by him. S. v. Alston, supra. Here, all the evidence establishes the actual occupation of the dwelling house at the time of the offense. S. v. McKnight, 111 N. C., 690, 16 S. E., 319. This precluded the court from submitting the case to the jury on the charge of burglary in the second degree as defined by C. S., 4232. S. v. Spain, supra, and cases there cited.

*556 Speaking to tbe question in S. v. Ratcliff, supra, it was said: “There is no evidence on the present record of burglary in the second degree as defined by C. S., 4232, unless the jury disbelieve the evidence relating to occupancy. S. v. Alston, 113 N. C., 666, 18 S. E., 692. All the evidence tends to show that the dwelling house was actually occupied at the time of the alleged offense. Hence, under these conditions, according to our previous decisions, an instruction that the jury may render a verdict of burglary in the second degree, ‘if they deem it proper to do so’ (C. S., 4641), would be erroneous, though a verdict of burglary in the second degree, if returned by the jury, would be permitted to stand, such a verdict, under the circumstances, being regarded as favorable to the prisoner. S. v. Fleming, supra; S. v. Alston, supra. This may seem somewhat illogical, in view of C. S., 4640 and 4641, nevertheless it is firmly established by a number of decisions.”

Our conclusion is, that the record contains no exceptive assignment of error which can be sustained. The verdict and judgment will be upheld.

No error.