State v. Cooper

219 S.E.2d 45 (1975)

288 N.C. 496

STATE of North Carolina v. Alfred Lee COOPER.

No. 10.

Supreme Court of North Carolina.

November 5, 1975.

*47 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Wilton E. Ragland, Jr., and Asst. Atty. Gen. William F. Briley, Raleigh, for the State.

W. Arnold Smith, Raleigh, for defendant-appellant.

LAKE, Justice.

The defendant made 17 assignments of error, of which 16 relate to rulings upon the admission of evidence and one relates to the denial of the defendant's motion for a directed verdict of not guilty. In his brief the defendant states:

"Counsel for Defendant-Appellant respectfully submits to the Court that he has pursued and examined the record in the case at bar as fully as possible, that he has researched relevant law with the respect to all objections made at trial and that he is unable to find any ruling of the Court which constitutes a clear or reasonable basis for arguing reversible error. * * * Counsel, therefore, respectfully requests the Court to examine the record proper and all other relevant material ab initio for the purpose of determining whether any right of Defendant-Appellant has been violated at trial."

Because of the gravity of the crimes of which the defendant has been found guilty, we have, notwithstanding the foregoing statement of his counsel, carefully examined the entire record. We also find no merit in any of the defendant's assignments of error, nor do we find any error, except as noted below, in any ruling of the trial court or in any other phase of the defendant's trial and conviction.

The appeal, itself, is an exception to the judgment and, even in the absence of an assignment of error, presents for review by this Court the question of whether there is any error appearing on the face of the record proper. State v. Carthens, 284 N.C. 111, 199 S.E.2d 456, cert. den., 415 U.S. 979, 94 S. Ct. 1567, 39 L. Ed. 2d 875; State v. Sutton, 268 N.C. 165, 150 S.E.2d 50; State v. Cox, 265 N.C. 344, 144 S.E.2d 63; Strong, N. C. Index 2d, Criminal Law, § 161.

As to the charge of second degree rape, we find no error upon the face of the record, or otherwise. The indictment charging the offense of rape was in proper form, after a trial free from error the jury returned a verdict finding the defendant guilty of second degree rape and the sentence imposed is not in excess of that authorized by the statute. G.S. § 14-21(b). The judgment of the Superior Court sentencing the defendant to imprisonment for the term of 30 years in the State's Prison, with a credit of 128 days spent in custody awaiting trial, for the offense of second degree rape, entered in Case No. 74CR61242, is, therefore, affirmed.

We find error upon the face of the record proper with reference to the judgment entered in Case No. 74CR61243 sentencing the defendant to imprisonment for the term of his natural life in the State's Prison for the offense of first degree burglary. The error arises from the failure of the bill of indictment to charge the offense of burglary.

Burglary, whether in the first degree or in the second degree, is the breaking and entering of a dwelling house of another in the nighttime with the intent to commit a felony therein. State v. Tippett, 270 N.C. 588, 155 S.E.2d 269; State v. Allen, 186 N.C. 302, 119 S.E. 504; Strong, N. C. Index 2d, Burglary and Unlawful Breakings, § 1. The indictment for burglary must specify the felony which the defendant is alleged to have intended to commit at the time of the breaking and entering. State v. Tippett, supra; State v. Allen, supra.

*48 The indictment here in question alleges the defendant broke and entered, with the intent to commit a felony therein, to wit: "by sexually assaulting a female." The indictment for burglary need not set out the felony which the defendant, at the time of the breaking and entering, intended to commit within the dwelling in as complete detail as would be required in an indictment for the actual commission of that felony. State v. Allen, supra. It must, however, state with certainty the felony which the State alleges he intended, at the time of his breaking and entering, to commit within the dwelling.

Under the law of this State there is no felony known as "sexually assaulting a female." In his charge to the jury the trial judge equated this term to rape or an assault with intent to commit rape. The term is not, however, limited to either or both of these felonies as a matter of law. It is broad enough to include other types of assaults upon females. An assault upon a female without intent to have sexual intercourse with her, even though it be sexually motivated, is a misdemeanor. G.S. § 14-33(b)(2). The phrase used in this indictment, "sexually assaulting a female," is broad enough to include such an assault. Consequently, the indictment does not allege that at the time this defendant broke and entered the apartment of Miss James he intended to commit a specifically designated felony therein. It follows that the indictment in Case No. 74CR61243 does not charge the defendant with the crime of burglary and will not support the imposition of a sentence to life imprisonment for first degree burglary. In determining the sufficiency of the indictment, it is immaterial that the evidence at the trial was sufficient to show that at the time of breaking and entering the apartment the defendant had the intent to rape its occupant.

By reason of this error by the draftsman of the bill of indictment in Case No. 74CR61243, the judgment entered therein must be arrested and that case must be remanded to the Superior Court for the entry of proper judgment.

Though not sufficient as an indictment for burglary, the indictment, under which the defendant was tried for and convicted of burglary in the first degree, alleges that the defendant, at the specified time, broke and entered the dwelling house therein described. It is sufficient to support a conviction under G.S. § 14-54(b) for wrongfully breaking and entering a building, a misdemeanor punishable under G.S. § 14-3(a). The jury, having found him guilty of first degree burglary, necessarily found him guilty of breaking and entering a building. The indictment and verdict will, therefore, support a sentence pursuant to G.S. § 14-3(a). Case No. 74CR61243 is, therefore, remanded to the Superior Court of Wake County for the imposition of such sentence therein.

Case No. 74CR61242 (second degree rape): No error.

Case No. 74CR61243 (first degree burglary): Judgment arrested and case remanded for the imposition of a proper sentence.