State v. Sanders

185 S.E.2d 158 (1971)

280 N.C. 81

STATE of North Carolina v. Haywood James SANDERS.

No. 123.

Supreme Court of North Carolina.

December 15, 1971.

*161 Robert Morgan, Atty. Gen., by Millard R. Rich, Jr., Asst. Atty. Gen., for the State.

Carl C. Churchill, Jr., and Tharrington & Smith, Roger W. Smith, Raleigh, for defendant appellant.

HIGGINS, Justice.

We discuss here the defendant's assignments of error in the order of their chronology rather than the order in which they are discussed in the briefs.

The defendant excepted to the court's refusal to dismiss all charges in the indictments on the ground the evidence did not support them. He contended the evidence failed to show the owners of the building did not give the defendant permission for the entrance. The evidence disclosed the building was occupied by a corporation. The secretary of the corporation testified: ". . . (W)e closed at regular hours, about 5:30 P.M. I next returned. . . that night about 12:15 A.M. when I was called to come down to the shop and informed that we had had a break in.. . . Two of our large shop windows had been broken out, in the shop door. . . all the desks had been riffled or gone into and the safe had been damaged.. . . I was able to determine that a tape recorder was missing. . . . We lost two cameras. . . . (O)ne camera was worth about $200.00." Other property, including money, was also missing.

In addition to the foregoing evidence, the clean-up boy testified he discovered the defendant and a companion working on the small safe. They fled before the police arrived. He identified the defendant as the one who was facing him at the time both were working on the upturned safe on the first floor.

The defendant denied he was in the building. He testified he was at home in bed from about 10:30 p.m. until 9:00 the next morning. There is no evidence he had permission to be in the building. All the evidence shows a breaking. Two men, one of whom was the defendant, were discovered by Grissom working on the small safe. They fled before the officers arrived. ". . . (W)hen defendant relies upon some independent, distinct, substantive matter of exemption, immunity or defense, beyond the essentials of the legal definition of the offense itself, the onus of proof as to such matter is upon the defendant.. . . In such circumstances, a defendant charged with the crime, who seeks protection by reason of the exception, has the burden of proving that he comes within the same." State v. Johnson, 229 N.C. 701, 51 S.E.2d 186. Nothing in the evidence warrants a finding defendant had permission to enter the building.

The court charged:

"As to the charge of felonious breaking and entering, before the State is entitled to a conviction upon that charge, it must prove to your satisfaction beyond a reasonable doubt, first, that there was either a breaking and entering or an unlawful entry by the defendant; second, that it must be the breaking or unlawful entry of some building wherein merchandise or money or property was kept; third, that the owner of the premises did not consent to the breaking or entering; and fourth, that at the time of such breaking or entering the defendant intended to steal some merchandise or property therefrom." *162 * * * * * * "So, if the State has proved beyond a reasonable doubt that the defendant did break or did unlawfully enter a building occupied by Morris and Associates, Inc., with the consent of the owner, against its will and that at the time of doing so he intended to steal anything therefrom; then it would be your duty to find him guilty of felonious breaking or entering, as charged."

The court, either by oversight, or inadvertence, is recorded as having said "with the consent . . . against its will" which clearly indicates the court said, or intended to say "without the consent . . . against its will." In view of the charge as a whole and the total absence of any evidence the owner consented to the entry, it is apparent the jury could not have misunderstood the court's language. The use of the words "with the consent" rather than "without the consent" was not prejudicial. "This was a lapsus linguae, but it is not perceived wherein it was hurtful. We regard it as a harmless inadvertence." In re Will of Wallace, 227 N.C. 459, 42 S.E.2d 520. See also State v. Truelove, 224 N.C. 147, 29 S.E.2d 460. Neither the defendant nor the State presented any evidence the defendant had the owner's consent to break into the building, steal personal property, and attempt to open the safe. The defendant's exception to the court's failure to dismiss the charge of felonious housebreaking is not sustained.

The indictment in #71 CR 5309 charged the offense defined in G.S. 14-89.1 which provides:

"Safecracking and safe robbery.Any person who shall by the use of explosives, drills, or other tools unlawfully force open or attempt to force open or `pick' the combination of a safe or vault used for storing money or other valuables, shall, upon conviction thereof, receive a sentence, in the discretion of the trial judge, of from ten years to life imprisonment in the State penitentiary."

When the jury returned to the courtroom and announced it had agreed on a verdict, the foreman first announced the jury found the defendant guilty of safecracking. At the request of defense counsel, the jury was polled. During the poll one of the jurors stated he understood the verdict to be guilty of "attempted safecracking." The court again explained to the jury that it could find the defendant guilty of safecracking, or guilty of attempted safecracking, or not guilty. The court ordered the jury to be polled after the explanation as to possible verdicts and each individual juror stated the verdict to be "guilty of attempted safecracking" and each said he still assented thereto. The court accepted the verdict as disclosed by the poll and ordered it recorded in the minutes of the court.

The defendant sought to challenge the verdict on the ground it was neither authorized by the indictment nor by the statute, the latter being G.S. § 14-89.1. A verdict should answer the issue raised by the State's charge of guilt contained in the indictment and the defendant's denial raised by his plea of not guilty. "A verdict is not bad for informality . . . in the language. . . if it is such that it can be clearly seen what is intended. It is to have a reasonable intendment and is to receive a reasonable construction and must not be voided except from necessity." State v. Perry, 225 N.C. 174, 33 S.E.2d 869. See also State v. Rhinehart, 267 N.C. 470, 148 S.E.2d 651. The indictment charged that the defendant by the use of a hammer, torch, chisel, hacksaw, etc. did unlawfully and feloniously force open and attempt to force open the safe and vault being used for the storage of money and other valuables, the property of the named corporation. With respect to the issues to be answered by the jury, the court gave this instruction:

". . . (Y)ou will say by your verdict whether you find the defendant guilty of safecracking, or attempted safecracking, as charged in the bill of indictment; or not guilty; . . ."

*163 The charge clearly disclosed the court used the expression "safecracking" and "attempted safecracking" as synonymous with "force open" and "attempt to force open" a safe or vault. The court was using the short title of the statute. This Court in at least three opinions has used "safecracking" and "attempted safecracking" as equivalent in words to "force open" and "attempt to force open" a safe or vault. State v. Whaley, 262 N.C. 536, 138 S.E.2d 138; State v. Bullock, 268 N.C. 560, 151 S.E.2d 9; State v. Pinyatello, 272 N.C. 312, 158 S.E.2d 596.

Inasmuch as the statute made an attempt to force open a safe or vault a crime of equal dignity with the completed offense and the indictment charged the attempt, the verdict of guilty of the latter authorized the court to enter judgment on the verdict. The court's use of the word "safecracking" was in no wise misleading and could not have misled the jury. The assignment of error based on the charge is not sustained.

The statute made the completed act of safecracking and the attempted safecracking offenses of equal dignity. In so providing, the Legislature followed the pattern with respect to safecracking or attempted safecracking that it had followed in the case of robbery or attempted robbery with firearms. G.S. § 14-87. Each made the attempt to commit the offense, an offense of equal gravity with the completed act. In State v. Parker, 262 N.C. 679, 138 S.E.2d 496, this Court in passing on the charge of attempt to commit armed robbery said: "So great is the offense when life is endangered and threatened by the use of firearms . . . that it is not of controlling consequence whether the assailants profit much or little, or nothing, from their felonious undertaking." In passing the act codified as G.S. § 14-89.1, the Legislature acted within its authority in providing punishment for attempt to force open a safe or vault where valuables are kept. "An attempt to commit a crime is an act done with intent to commit that crime, carried beyond mere preparation to commit it, but falling short of its actual commission." State v. Surles, 230 N.C. 272, 52 S.E.2d 880. The foregoing is approved in State v. Rogers, 273 N.C. 208, 159 S.E.2d 525. Certainly removing the dial, sawing off the hinges, chiseling out a part of the concrete bottom of the small safe and "smudging" it with a blowtorch go beyond mere preparation for safecracking, and in law constitute "attempted safecracking."

Finally, the defendant contends the verdict was so incomplete and indefinite as to render it insufficient to support the court's judgment. Notwithstanding the foreman's announcement that the jury found the defendant guilty of safecracking, the first poll indicated such was not the unanimous agreement. The court repeated its instruction that the jury could render a verdict of guilty of safecracking, or guilty of attempted safecracking, or not guilty. The second poll of the jury disclosed without question the unanimous agreement of the jury on a verdict of guilty of attempted safecracking and each juror answered that he still assented thereto. The verdict was then accepted by the court and recorded in its proceedings. In Davis v. State of North Carolina, 273 N.C. 533, 160 S.E.2d 697, Chief Justice Parker used this language: "If there was any uncertainty in the verdict, that uncertainty was completely removed by the polling of the jury and their answers to the court upon the polling." See also State v. Dow, 246 N.C. 644, 99 S.E.2d 860; State v. Hemphill, 273 N.C. 388, 160 S.E.2d 53; State v. Cephus, 241 N.C. 562, 86 S.E.2d 70.

After full review, this Court has been unable to discover any error of law committed in the trial.

No error.