State v. Bell

200 S.E.2d 601 (1973)

284 N.C. 416

STATE of North Carolina v. Johnas BELL.

No. 44.

Supreme Court of North Carolina.

December 12, 1973.

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

John J. Schramm, Jr., Winston-Salem, for the defendant appellant.

BRANCH, Justice.

The single question presented for decision is whether the trial judge erred by failing to submit to the jury the lesser included offense of felonious breaking or entering.

Burglary in the first degree is the breaking and entering during the nighttime of an occupied dwelling or sleeping apartment with intent to commit a felony therein. G.S. § 14-51; State v. Cox, 281 N.C. 131, 187 S.E.2d 785.

G.S. § 14-54(a) provides: "Any person who breaks or enters any building with intent to commit any felony or larceny therein is guilty of a felony and is punishable under G.S. 14-2."

The statutory offense of felonious breaking or entering defined by G.S. § 14-54(a) is a lesser included offense of burglary in the first degree. State v. Fikes, 270 N.C. 780, 155 S.E.2d 277; State v. Perry, 265 N.C. 517, 144 S.E.2d 591. When a defendant is indicted for a criminal offense, he may be convicted of the charged offense or a lesser included offense when the greater offense charged in the bill of indictment contains all of the essential elements of the lesser, all of which could be proved by proof of the allegations in the indictment. Further, when there is some evidence supporting a lesser included offense, a defendant is entitled to a charge thereon even when there is no specific prayer for such instruction, and error in failing to do so will not be cured by a verdict finding defendant guilty of a higher degree of the same crime. State v. Riera, 276 N.C. 361, 172 S.E.2d 535; State v. Childress, 228 N.C. 208, 45 S.E.2d 42; State v. Overman, 269 N.C. 453, 153 S.E.2d 44.

If defendant entered the Julia Higgins Cottage with intent to commit a felony other than by a burglarious breaking, he would be guilty of felonious breaking or entering as defined by G.S. § 14-54(a). *604 State v. Brown, 266 N.C. 55, 145 S.E.2d 297.

In the case of State v. Chambers, 218 N.C. 442, 11 S.E.2d 280, the defendant was charged with first degree burglary. The evidence tended to show that defendant unlawfully entered a dwelling house and committed the felony of rape therein. The window in the room in which the felony was committed was open, and the defendant was first observed in that room. The defendant made his escape through the open window. There was circumstantial evidence tending to show that the entry was made by opening another window of the dwelling. This Court held that it was reversible error not to submit to the jury the question of the defendant's guilt of nonburglarious breaking or entering.

In the instant case, there was evidence that the last person known to enter the dwelling found the front door open and "she did not lock the front door." The evidence does not show whether she closed the door or left it ajar. There were several doors to the cottage which ordinarily were unlocked during the day and locked at night. There was no direct evidence as to whether these doors had been locked on the night of the 26th of May 1971. There was evidence that the sceen on the left of the front door was slit and unlatched. The evidence does not establish whether the window was open or whether the "slit" was large enough for a person to enter. Nor is there any evidence establishing when the screen was unlatched or when the slit was made. Likewise there is no direct conclusive evidence to show when the screen on the right of the front door was pushed out or when or how defendant entered the dwelling.

The evidence in the case and the inferences to be reasonably drawn therefrom were not such as would have required the jury to find that defendant entered the Julia Higgins Cottage by a burglarious breaking. Conversely the jury might reasonably have inferred that defendant made his entry without a burglarious breaking.

Under these circumstances, defendant was entitled ". . . to have different views arising on the evidence presented to the jury upon proper instructions. . . ." State v. Childress, supra.

For failure to charge on the offense of non-burglarious breaking or entering, there must be a

New trial.