{
  "id": 8553833,
  "name": "STATE OF NORTH CAROLINA v. MAX V. ROGERS",
  "name_abbreviation": "State v. Rogers",
  "decision_date": "1970-11-18",
  "docket_number": "No. 7027SC474",
  "first_page": "702",
  "last_page": "704",
  "citations": [
    {
      "type": "official",
      "cite": "9 N.C. App. 702"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "173 S.E. 2d 638",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1970,
      "opinion_index": 0
    },
    {
      "cite": "8 N.C. App. 85",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8549444
      ],
      "year": 1970,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/8/0085-01"
      ]
    }
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  "last_updated": "2023-07-14T14:50:15.842675+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judge Parker concurs.",
      "Chief Judge Mallard concurs in the result."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. MAX V. ROGERS"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nThe defendant assigns as error the following portion of the trial judge\u2019s instructions to the jury:\n\u201cI instruct you, members of the jury, that if you find from the evidence and beyond a reasonable doubt, the burden being upon the State to so satisfy you that on the 3rd day of February, 1970, the defendant Max Rogers broke into or entered the Holmsley dwelling and that said residence or dwelling had personal property situated therein at the time, and that the defendant broke into and entered the said dwelling house without the consent and knowledge of the owner or the owner\u2019s agent or any member of the family, it would be your duty to return a verdict of guilty as charged in the bill of indictment.\u201d\nThe assignment of error is sustained. The defendant was charged in a single bill of indictment with two separate offenses: (1) felonious breaking and entering and (2) felonious larceny. Upon the defendant\u2019s plea of not guilty the burden was on the State to satisfy the jury from competent evidence and beyond a reasonable doubt that the defendant was guilty of every element of each separate offense. In the instant case for the jury \u201cto return a verdict of guilty as charged in the bill of indictment\u201d means to find the defendant guilty of felonious breaking and entering and felonious larceny. That portion of the trial judge\u2019s instructions to the jury challenged by the defendant is erroneous in that the jury might find the defendant guilty of felonious breaking and entering without finding that the defendant broke and entered the Holmsley dwelling with the intent to steal, and also in that the jury might find the defendant guilty of felonious larceny without finding that the defendant stole anything from the Holmsley dwelling. In addition, the challenged portion of the instructions fails to instruct the jury that it might return a verdict of guilty of one offense and not guilty of the other offense. Failure of the trial judge to instruct the jury with respect to these options is error. State v. Huffman, 8 N.C. App. 85, 173 S.E. 2d 638 (1970). For the reasons stated, the defendant is entitled to a new trial.\nThe defendant raises other questions in his brief which we have carefully considered but do not discuss since they probably will not arise upon a retrial.\nNew trial.\nJudge Parker concurs.\nChief Judge Mallard concurs in the result.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Robert Morgan, Attorney General, William W. Melvin, Assistant Attorney General, and T. Buie Costen, Assistant Attorney General, for the State.",
      "Jeffrey M. Gutter for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. MAX V. ROGERS\nNo. 7027SC474\n(Filed 18 November 1970)\nBurglary and Unlawful Breakings \u00a7 6; Larceny \u00a7 8\u2014 insufficiency of instructions\nIn this prosecution upon a bill of indictment charging defendant with (1) the felonious breaking and entering of a dwelling with intent to steal and (2) the felonious larceny of property therefrom, the trial court erred in giving the jury instructions which are susceptible to the construction that the jury might find defendant guilty of felonious breaking and entering without finding that defendant broke and entered the dwelling with an intent to steal, and that the jury might find defendant guilty of felonious larceny without finding that defendant stole anything from the dwelling, and in failing to instruct the jury that it might return a verdict of guilty of one offense and not guilty of the other offense.\nChief Judge Mallard concurs in the result.\nAppeal by defendant, Max V. Rogers, from Falls, 10 March 1970 Session of Gaston Superior Court.\nThe defendant was charged in a two-count bill of indictment, proper in form, with: (1) breaking and entering on 3 February 1970 the home of James T. Holmsley with intent to steal property therefrom; and (2) with the felonious larceny of personal property after breaking and entering the same.\nThe defendant, an indigent, represented by his court-appointed attorney, pleaded not guilty. The State offered evidence tending to show that sometime between the hours of 8:00 and 11:00 a.m. on 3 February 1970 the home of James T. Holms-ley located at Route 2, Cherryville, North Carolina, was broken into and certain items of personal property, including a man\u2019s yellow gold, self-winding watch belonging to Mr. Holmsley, were stolen therefrom. A witness for the State testified that he observed the defendant in the vicinity of the Holmsley home in an automobile at about 10:00 a.m. on 3 February 1970. The defendant was arrested on Main Street in Bessemer City for public drunkenness at about 2:30 p.m. on 3 February 1970, and he at that time had in his possession a man\u2019s yellow gold, self-winding watch which Mr. Holmsley identified as being the watch taken from his home earlier that day.\nThe defendant did not testify, but offered evidence tending to establish an alibi. The jury found the defendant guilty of the two counts charged in the bill of indictment. The court imposed a ten-year sentence on the first count and a nine to ten-year sentence on the second count and ordered that the sentences be served consecutively.\nThe defendant appealed to the North Carolina Court of Appeals.\nRobert Morgan, Attorney General, William W. Melvin, Assistant Attorney General, and T. Buie Costen, Assistant Attorney General, for the State.\nJeffrey M. Gutter for defendant appellant."
  },
  "file_name": "0702-01",
  "first_page_order": 726,
  "last_page_order": 728
}
