State v. . Mumford

41 S.E.2d 201, 227 N.C. 132, 1947 N.C. LEXIS 356

• Court: Supreme Court of North Carolina
• Decided: January 31, 1947
• Status: Published

Opinion

Barnhill, J.

The assignments of error relied on by defendant present only one question for decision: "Was the evidence offered on the charge of nonburglarious entry such as to warrant the submission of the case to the jury? The answer to this question depends upon whether proof of a breaking is essential to sustain a conviction.

Burglary is a common law offense. To warrant a conviction thereof it must be made to appear that there was a breaking and entering during the nighttime of a dwelling or sleeping apartment with intent to commit a felony therein. That the building was or was not occupied at the time affects the degree. G. S., 14-51.

But defendant is not charged with the crime of burglary. He is indicted under G. S., 14-54. The offense there defined, commonly referred to as housebreaking or nonburglarious breaking, is a statutory, not a common law, offense. S. v. Dozier, 73 N. C., 117.

As first enacted this statute simply made it unlawful for a person to willfully break into any storehouse where any merchandise or any personal property is kept, or any uninhabited house, with intent to commit a felony therein. Chap. 166, Public Laws, 1874-5. In 1879 it was amended so as to make it unlawful also to enter a dwelling house in the nighttime, otherwise than by breaking, with intent to commit a felony. Chap. 323, Public Laws, 1879. In the Code of 1883 the statute, as amended, was redrafted so as to provide in part: “If any person shall break or enter a dwelling house of another otherwise than by a bur-glarious breaking . . . with intent to commit a felony or other infamous crime therein” he shall be guilty of a felony. Sec. 996, Code 1883; Sec. 3333, Rev. 1905. In 1919 the section was again revised and the language “break and enter” used in reference to uninhabited houses, storehouses and similar buildings was deleted. C. S., 4235.

That section, now G. S., 14-54, is captioned “Breaking into or entering houses otherwise than burglariously” and makes it a crime for any person, with intent to commit a felony therein, to break or enter the dwelling of another, otherwise than by a burglarious breaking; or any uninhabited house; or any storehouse or similar building where personal' property shall be.

Thus from the beginning, in respect to a dwelling, it is the entering otherwise than by a burglarious breaking, with intent to commit a felony, that constitutes the offense condemned by the Act. A breaking is not now and has never been a prerequisite of guilt and proof thereof is not required. S. v. McBryde, 97 N. C., 393; S. v. Hughes, 86 N. C., 662; S. v. Chambers, 218 N. C., 442, 11 S. E. (2d), 280.

Under the statute it is unlawful to break into a dwelling with intent to commit a felony therein. It is likewise unlawful to enter, with like intent, without a breaking. Hence, evidence of a breaking, when available, is always relevant, but absence of such evidence does not constitute a fatal defect of proof.

It follows that in overruling the demurrer to the evidence and denying the motion for a directed verdict the court below committed no error. The verdict and judgment must be sustained.

No error.