9 N.C. App. 702 | N.C. Ct. App. | 1970
The defendant assigns as error the following portion of the trial judge’s instructions to the jury:
“I instruct you, members of the jury, that if you find from the evidence and beyond a reasonable doubt, the burden being upon the State to so satisfy you that on the 3rd day of February, 1970, the defendant Max Rogers broke into or entered the Holmsley dwelling and that said residence or dwelling had personal property situated therein at the time, and that the defendant broke into and entered the said dwelling house without the consent and knowledge of the owner or the owner’s agent or any member of the family, it would be your duty to return a verdict of guilty as charged in the bill of indictment.”
The assignment of error is sustained. The defendant was charged in a single bill of indictment with two separate offenses: (1) felonious breaking and entering and (2) felonious larceny. Upon the defendant’s plea of not guilty the burden was on the State to satisfy the jury from competent evidence and beyond a reasonable doubt that the defendant was guilty of every element of each separate offense. In the instant case for the jury “to return a verdict of guilty as charged in the bill of indictment” means to find the defendant guilty of felonious breaking and entering and felonious larceny. That portion of the trial judge’s instructions to the jury challenged by the defendant is erroneous in that the jury might find the defendant guilty of felonious breaking and entering without finding that the defendant broke and entered the Holmsley dwelling with the intent to steal, and also in that the jury might find the defend
The defendant raises other questions in his brief which we have carefully considered but do not discuss since they probably will not arise upon a retrial.
New trial.
