State v. Wood

286 N.C. 248 | N.C. | 1974

SHARP, Justice.

Defendant’s assignments of error raise only the question whether the trial judge erred in refusing to grant his motions for nonsuit. In his brief, however, defendant advances no reason or argument in support of his exception to the judge’s refusal to dismiss the charge of felonious larceny. He states the question presented to be “whether or not there was sufficient evidence of defendant’s guilt of the offense of first degree burglary to be submitted to the jury.”

To sustain a conviction of burglary in either the first or second degree it must appear that the defendant broke into and entered a dwelling or sleeping apartment during the nighttime with intent to commit a felony therein. If the burglarized dwelling is occupied the crime is burglary in the first degree; if unoccupied, it is burglary in the second degree. G.S. 14-51; State v. Frank, 284 N.C. 137, 200 S.E. 2d 169 (1973) ; State v. Cox, 281 N.C. 131, 187 S.E. 2d 785 (1972).

Defendant contends that the burglary charge should have been dismissed because the State’s proof does not conform to the allegation in the indictment that the breaking and entering occurred “during the nighttime between the hours of 11:00 p.m. and 6:00 a.m.”; that the time of the entry is left to conjecture; and that the State offered no evidence as to when nighttime ended and daylight began on 20 November 1971. This contention is without merit.

Although the common law required an indictment for burglary to allege the hour the crime was committed, today “it is sufficient to aver that the crime was committed in the nighttime.” 13 Am. Jur. 2d, Burglary § 34 (1964). The allegation is sustained by proof beyond a reasonable doubt that the breaking and entering occurred “during the nighttime,” and the time of the offense may be proved by circumstantial evidence. 12 C.J.S., Burglary §§ 13, 60 (1938). See State v. Frank, supra; State v. Whit, 49 N.C. 349 (1857).

The State’s evidence was sufficient to establish that defendant broke into Mr. Arnold’s bedroom sometime after 11:00 p.m. and took, among other things, Arnold’s driver’s license and the keys to the Buick automobile in which he left Fayetteville “that night” for California. Defendant’s statement, that at the time he entered the motel room he knew it was occupied because he thought he heard a shower running, is evidence tending to show the burglary occurred shortly after 11:00 p.m., the time Arnold testified he took a shower. However, SBI Agent Davis testified that his inquiry at the cafe for Johnny Johnson was made about midnight. This was the occurrence which prompted defendant’s decision to burglarize the motel room and then leave town. In any event, defendant himself said that, after entering the motel room, he left Fayetteville that night.

In our view the evidence set forth in the preliminary statement supports the verdict rendered and is consistent only with a breaking and entering during the nighttime. In defendant’s trial we find

No error.

Chief Justice Bobbitt not sitting.