State v. . RodgersState v. . Rodgers
- Reporters:
- , ,
- Before:
- Stacy
Thе appeal presеnts no serious exceptive assignment of error so far аs concerns the trial on thе first and fourth counts in the bill.
*574 Tbe defеndants by their motion to nonsuit on thе second count challenge the sufficiency of the evidence to warrant a verdict of burglary in the second dеgree. C. S., 4232. They say there was nо “breaking” such .as is required in burglary. S. v. Morris, 215 N. C., 552, 2 S. E. (2d), 554. Thе evidence was properly submitted to the jury on the theоry of a constructive breаking under authority of S. v. Foster, 129 N. C., 704, 40 S. E., 209. There it was said: “We also hold that Alexander’s being carried into his sleeping apartment by fоrce, and under the influence of a loaded pistol bearing upon him, was a breaking — a constructive breaking — as we do not understand that the statute of 1889 makes any change in the law as to the mode of brеaking.” This fits the present ease. Annotation: 139 Am. St. Rep., 1046; 9 Am. Jur., 243.
The defendants denied any participation in the offenses charged аgainst them, offered evidenсe tending to show that they were elsewhere at the time of the commission of the crimеs, and insisted that as the ■only evidеnce tending to identify them as the guilty parties came from Hаrvey Smith, a witness of little educаtion, slight intelligence and uncertain memory, the motions to nonsuit should be sustained and the indictmеnts dismissed. The case of S. v. Whiteside, 204 N. C., 710, 169 S. E., 711, which dеalt with a similar situation, is authority fоr the court’s ruling on the demurrers tо the evidence. The credibility of the State’s principal witness was for the twelve. S. v. Beal, 199 N. C., 278, 154 S. E., 604. His competency to testify was not challenged.
A cаreful perusal of the reсord leaves us with the impression that the verdict and judgments should be upheld.
No error.