State v. Wooten

161 S.E.2d 59 (1968)

1 N.C. App. 240

STATE of North Carolina v. Willie WOOTEN.

No. 68SC47.

Court of Appeals of North Carolina.

May 15, 1968.

*60 T. Wade Bruton, Atty. Gen., by Millard R. Rich, Jr., Asst. Atty. Gen., for the State.

McCown & McCown, by Wallace H. McCown, Manteo, for defendant appellant.

BRITT, Judge.

Defendant's first assignment of error is that the trial court erred in failing to grant his motion for judgment as of nonsuit.

On motion for nonsuit, we must consider the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference fairly deducible therefrom. State v. Mullinax, 263 N.C. 512, 139 S.E.2d 639.

The pertinent language of G.S. § 14-54 is, "If any person, with intent to commit a felony or other infamous crime therein, shall break or enter * * * any storehouse, shop * * * or other building where any merchandise * * * or other personal property shall be * * * he shall be guilty of a felony." (Emphasis added.) The breaking of the station window, with the requisite intent to commit a felony therein, completes the offense even though the defendant is interrupted or otherwise abandons his purpose without actually entering the building. State v. Burgess, 1 N.C.App. 104, 160 S.E.2d 110.

"If a person breaks or enters * * * with intent to commit the crime of larceny, he does so with intent to commit a felony, without reference to whether he is completely frustrated before he accomplishes his felonious intent * * *. (H)is criminal conduct is not determinable on the basis of the success of his felonious venture." State v. Nichols, 268 N.C. 152, 150 S.E.2d 21, and cases cited therein.

We hold that defendant's motion for judgment as of nonsuit was properly overruled. The circumstances in this case make it a question for the jury. State v. Burgess, supra.

Defendant's remaining assignments of error relate to the trial judge's charge to the jury. We have carefully reviewed the charge and find it to be free from prejudicial error.

The defendant had a fair trial. The judgment of the Superior Court is

Affirmed.

CAMPBELL and MORRIS, JJ., concur.