State v. Foust

Court of Appeals of North Carolina

State v. Foust

251 S.E.2d 893, 40 N.C. App. 71, 1979 N.C. App. LEXIS 2581

CourtCourt of Appeals of North Carolina

DecidedFebruary 20, 1979

DocketNo. 7818SC977

StatusPublished

Cited by3 cases

This text of 251 S.E.2d 893 (State v. Foust) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Foust, 251 S.E.2d 893, 40 N.C. App. 71, 1979 N.C. App. LEXIS 2581 (N.C. Ct. App. 1979).

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Opinion

MARTIN (Robert M.), Judge.

Defendant was indicted for first degree burglary, and was ultimately tried (upon the State’s election) for second degree burglary, upon a proper indictment and after the warrant for arrest was amended. From a conviction of second degree burglary and a sentence of 30 to 40 years, defendant appeals, assigning error to the instructions of the trial judge.

We find that defendant must have a new trial. He was charged with second degree burglary, an offense under G.S. 14-51. An essential element of that offense, as derived from the common law, is the intent of the perpetrator to commit a felony after accomplishing the breaking and entering of a dwelling house belonging to another in the nighttime. State v. Whit, 49 N.C. 349 (1857). In the case before us, the indictment alleged that defendant’s intent was to commit larceny. The trial judge properly instructed the jury that the State had the burden of proof on the issue of defendant’s intent. However, nowhere in the record does it appear that the trial court defined the term “larceny” in its instructions, an omission which was prejudicial to defendant and erroneous under our case law. See State v. Elliott, 21 N.C. App. [72]*72555, 205 S.E. 2d 106 (1974). The conviction appealed from is vacated and the case is remanded for new trial.

New trial.

Judges Mitchell and Erwin concur.

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MARTIN (Robert M.), Judge.

Defendant was indicted for first degree burglary, and was ultimately tried (upon the State’s election) for second degree burglary, upon a proper indictment and after the warrant for arrest was amended. From a conviction of second degree burglary and a sentence of 30 to 40 years, defendant appeals, assigning error to the instructions of the trial judge.

We find that defendant must have a new trial. He was charged with second degree burglary, an offense under G.S. 14-51. An essential element of that offense, as derived from the common law, is the intent of the perpetrator to commit a felony after accomplishing the breaking and entering of a dwelling house belonging to another in the nighttime. State v. Whit, 49 N.C. 349 (1857). In the case before us, the indictment alleged that defendant’s intent was to commit larceny. The trial judge properly instructed the jury that the State had the burden of proof on the issue of defendant’s intent. However, nowhere in the record does it appear that the trial court defined the term “larceny” in its instructions, an omission which was prejudicial to defendant and erroneous under our case law. See State v. Elliott, 21 N.C. App. [72]*72555, 205 S.E. 2d 106 (1974). The conviction appealed from is vacated and the case is remanded for new trial.

New trial.

Judges Mitchell and Erwin concur.

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Bluebook (online)

251 S.E.2d 893, 40 N.C. App. 71, 1979 N.C. App. LEXIS 2581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-foust-ncctapp-1979.

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