State v. . Jordan

37 S.E.2d 111, 226 N.C. 155, 1946 N.C. LEXIS 403

• Court: Supreme Court of North Carolina
• Decided: February 27, 1946
• Status: Published

Opinion

Stacy, C. J.

Tbe defendant was tried for burglary in tbe second degree on an indictment charging him with burglary in tbe first degree. G. S., 14-51, All tbe evidence indicates tbe dwelling-house was actually occupied at tbe time of tbe alleged burglarious entry. S. v. Spain, 201 N. C., 571, 160 S. E., 825; S. v. Ratcliff, 199 N. C., 9, 153 S. E., 605. Tbe verdict, as rendered without challenge, shows tbe defendant was convicted of burglary in tbe first degree, or was found guilty “as charged in tbe bill of indictment.” This is a capital offense. G. S., 14-52. True, tbe clerk certifies “That defendant Russell Jordan was found guilty of second degree burglary as charged in tbe bill of indictment.” Such, however, seems to be tbe clerk’s interpretation of tbe verdict, rather than a precise certification of it. Tbe sentence imposed presupposes a conviction of burglary in tbe second degree. G. S., 14-52.

It is permissible under our practice to convict a defendant of a less degree of tbe crime charged, G. S., 15-170, or for which be is being tried, when there is evidence to support tbe milder verdict, S. v. Smith, 201 N. C., 494, 160 S. E., 577, with G. S., 15-171, available in burglary cases, S. v. McLean, 224 N. C., 704, 32 S. E. (2d), 227, but it would seem to be without precedent to try a defendant for one offense and to convict him of another and greater offense, even though tbe conviction be of a higher degree of tbe same offense for which be is being tried. The defendant’s motion to set aside the verdict was well interposed.

No rulings are made on tbe other exceptions.

New trial.