State v. . Rodgers

5 S.E.2d 831, 216 N.C. 572, 1939 N.C. LEXIS 52

• Court: Supreme Court of North Carolina
• Decided: December 13, 1939
• Status: Published

Opinion

Stacy, C. J.

The appeal presents no serious exceptive assignment of error so far as concerns the trial on the first and fourth counts in the bill.

Tbe defendants by their motion to nonsuit on the second count challenge the sufficiency of the evidence to warrant a verdict of burglary in the second degree. C. S., 4232. They say there was no “breaking” such .as is required in burglary. S. v. Morris, 215 N. C., 552, 2 S. E. (2d), 554. The evidence was properly submitted to the jury on the theory of a constructive breaking under authority of S. v. Foster, 129 N. C., 704, 40 S. E., 209. There it was said: “We also hold that Alexander’s being carried into his sleeping apartment by force, and under the influence of a loaded pistol bearing upon him, was a breaking — a constructive breaking — as we do not understand that the statute of 1889 makes any change in the law as to the mode of breaking.” This fits the present ease. Annotation: 139 Am. St. Rep., 1046; 9 Am. Jur., 243.

The defendants denied any participation in the offenses charged against them, offered evidence tending to show that they were elsewhere at the time of the commission of the crimes, and insisted that as the ■only evidence tending to identify them as the guilty parties came from Harvey Smith, a witness of little education, slight intelligence and uncertain memory, the motions to nonsuit should be sustained and the indictments dismissed. The case of S. v. Whiteside, 204 N. C., 710, 169 S. E., 711, which dealt with a similar situation, is authority for the court’s ruling on the demurrers to the evidence. The credibility of the State’s principal witness was for the twelve. S. v. Beal, 199 N. C., 278, 154 S. E., 604. His competency to testify was not challenged.

A careful perusal of the record leaves us with the impression that the verdict and judgments should be upheld.

No error.