#### STATE v. WALTER SPEAR.

(Filed 5 November, 1913.)

1. Burglary — Felonious Intent — Punctuation — Interpretation of Statutes.

In order to convict, under Revisal, sec. 3333, of any of the offenses therein enumerated, it is necessary to show that the breaking into the dwelling, etc., of another was done “with the intent to commit a felony or other infamous crime therein.”

2. Verdicts — Burglary—Felonious Intent — Judgments—Acquittal.

Upon a trial under an indictment for burglary, the jury was instructed by the court that, under the evidence, their verdict should be guilty thereof in the first degree; or of breaking into-the dwelling-house of another otherwise than by a burglarious breaking; or not guilty. The verdict rendered was that “the defendant (was) guilty of housebreaking, with no intent to commit a felony”: Held,, the verdict was equivalent to an acquittal, under section 3333, Revisal, upon which judgment of not guilty should have been entered by the court, and the defendant. discharged.

Clabk, O. J., dissenting.

Appeal by defendant from- Lane, J., at July Term, 1913, of Eokstth.

This was indictment for capital offense of burglary. There was evidence on the part of the State tending to support the charge as made. Evidence contra on part of defendant. The court, among other things, charged the jury that on the bill of indictment and testimony they could render either of. three verdicts :

1. Guilty of burglary in the first degree.

2. Guilty of breaking and entering the dwelling-house of another otherwise than by burglarious breaking. Revisal, sec. 3333.

3. Not guilty.

The jury rendered the following verdict:

“We, the jury, find the defendant guilty of housebreaking, with no intent to commit a felony. The jury especially asks the mercy of the court.”

*453On tbe verdict there was motion to discharge prisoner as on verdict of acquittal. Motion overruled, and defendant excepted. B!is Honor being of opinion that the verdict as rendered amounted to a conviction of the second offense under section 3333, Eevisal, sentenced the prisoner to twelve months on the public roads, and defendant excepted and appealed.

Attorney-General Bichett and Assistant Attorney-General Gal-vert for the State.

Watson, Buxton & Watson for defendant.

Hoke, J.,

after stating the case: Section 3333 of the Eevisal is in the following words: “If any person shall break or enter a dwelling-house of another otherwise than by a burglarious breaking; or shall break and enter a storehouse, shop, warehouse, banking house, counting house, or other building, where any merchandise, chattel, money, valuable security, or other personal property shall be; or shall break and enter any uninhabited house, with intent to commit a felony or other infamous crime therein; every such person shall be guilty of a felony, and imprisoned in the State’s Prison or county jail not less than four months, nor more than ten years.”

So fqr as the form is concerned, it has been held that under an indictment charging the capital crime of burglary, a conviction may be had of the offense constituted and described in this section of the Eevisal, and the question presented by this appeal is on the proper significance of the verdict rendered by the jury. This same law is in The Code of 1883, sec. 996, except that in the clause in section 996, “or shall break and enter any uninhabited house with intent to commit a felony or other infamous crime therein,” there is a semicolon between the words “'uninhabited house” and the words “with intent to commit a felony,” instead of a comma, the divisional pause in the present law. Construing the law as it appeared in section 996 of The Code, the Court has expressly held that the “intent to commit a felony or other infamous crime” was an essential ingredient of the offense (S. v. Christmas, 101 N. C., 749; S. v. McBride, 97 N. C., 393); and we are of opinion that a like construction *454should prevail in reference to the present statute. If the Legislature bad intended that tbe criminal purpose specified should be confined to the last substantive clause of the statute, to wit, the “breaking into an uninhabited house,” there was no occasion for a pause of any kind between these words and the criminal intent which follows; as a matter of strict interpretation, a comuna as well as a semicolon would serve to prevent such a meaning- and to attách the intent to all of the former clauses of the section. And if there were doubt about this as a mere matter of punctuation, the • character of the offense and serious nature of the punishment would impel the Court to its present conclusion. -This section of the Revisa! is grouped with the crime of burglary and other kindred offenses in which the technical “breaking” may be effected by lifting a latch or the turning of a knob, the house being otherwise closed (Clark’s Criminal Law (2d Ed.), p. 262) ; and it cannot be that the Legislature had any purpose to make it a felony where a wayfarer or a neighbor had so entered an unlocked shop or warehouse, seeking shelter from a storm or other hindrance.

Again, the first portion of this section is in the disjunctive, “If any one shall break or enter the dwelling-house of another,” the design evidently being to afford greater protection to the dwelling, and to hold such an entry a crime in itself, detached from the felonious intent in the later clause of the law, would make it a criminal offense to enter the dwelling of another for the most innocent purpose, even to make a social call. It is clear, therefore, that the present statute should receive the same construction as the former; that the crime is only committed when the houses designated are entered or broken into “with intent to commit a felony or other infamous crime therein”; and the verdict of the jury having negatived this, an essential feature of the crime, amounts to a verdict of not guilty.

It was not controverted on the argument for the State that this was the proper construction of the statute, but it was insisted that the verdict of the jury was irresponsive and insensate, and this being true, that the prisoner should be held for further trial on the present bill.

*455In Clark’s Criminal Procedure, p. 486, it is said: “A verdict is not bad for informality or clerical errors in tbe language of it, if it is sucb tbat'it can be clearly seen wbat is intended. It is to bave a reasonable intendment, and it is to receive a reasonable construction, and must not be avoided except from necessity.”

As far back as 7 N. C., p. 571, S. v. John Arrington, tbis principle was applied to a case where a defendant was indicted for borse stealing, and “tbe jury returned a verdict tbat tbe prisoner was not guilty of tbe felony and borse stealing, but guilty of a trespass. Tbe trial court desired tbem to reconsider their verdict and say guilty or not guilty, and no more, and tbe jury thereupon retired and returned a verdict of guilty generally,” and tbe Supreme Court on appeal ordered tbat tbe first finding of tbe jury be recorded as their verdict and tbe prisoner discharged; and in tbat case it was held further, “Tbat whenever a prisoner in terms or effect is acquitted by tbe jury, tbe verdict as returned by tbem should be recorded.” Tbis decision was referred to in terms of approval in S. v. Godwin, 138 N. C., 586, and was again applied in tbe subsequent case of S. v. Whisenant, 149 N. C., 515.

In tbe present case, tbe jury having expressly negatived tbe existence of any criminal intent on tbe part of tbe prisoner, and tbis, as we bave seen, being an essential constituent of tbe offense charged, it must be held as tbe correct deduction from these decisions tbat' tbe verdict is one of acquittal, and tbe motion of tbe prisoner for bis discharge should bave been allowed.

We bave been referred-to S. v. Hooker, 145 N. C., 582, as an authority directly opposed to our present position; but an examination of tbat case will disclose tbat tbis is not necessarily true. In Hooker's case tbe defendant bad been acquitted on an indictment for larceny of certain goods, and be was then tried on a bill for breaking, into a store with intent to steal the goods, and was convicted. ' On appeal, the question chiefly presented was whether tbe defendant’s plea. of former acquittal should be allowed by reason of.tbe first verdict. Tbe plea was *456held bad on tbe ground tbat these were two entirely separate and distinct offenses, and tbe acquittal of one was therefore no bar to tbe prosecution of the other. Having rested tbe decision on tbat ground, there was no cause to further construe tbe statute, and tbe portion of tbe opinion saying tbat tbe words of tbe present statute, “with intent to commit a felony or other infamous crime therein,” should only apply to a “breaking into an uninhabited bouse,” may well be considered as obiter dictum. As an authoritative construction of tbe statute, tbe position is not approved.

Reversed.

Clare, C. J.,

dissenting: Revisal, 3269, provides: “Upon the trial of any indictment tbe prisoner may be convicted of tbe crime charged therein, or of a less degree of the same crime, or of an attempt to commit tbe crime so charged, or of an attempt to commit a less degree of tbe same crime.”

Revisal, 3333, under tbe sub-title “Burglary,” provides: “If any person shall break or enter a dwelling-house -of another otherwise than by a burglarious-breaking; or shall break and enter a storehouse, shop, warehouse, banking house, counting house, or other building, where any merchandise, chattel, money, valuable security, or other personal property shall be; or shall break and enter any uninhabited house, with intent to commit a felony or other infamous crime therein; every such person shall be guilty of a felony.”

It will thus be seen that this section denounces three distinct classes of offenses, which classes'are separated appropriately by a semicolon. Each of these offenses is a lesser degree of the offense of burglary being found, as stated in the sub-title appropriated to that offense. Clark Cr. Law, 269.

The jury for their verdict found the defendant “guilty of housebreaking, with no intent to commit a felony.” This brings the offense exactly under the second class of offenses marked out in section 3333, in which no intent to commit a felony is required. S. v. Hooker, 145 N. C., 581. The verdict distinguishes this offense from the first class of offenses in Revisal, *4573333, by its not being termed a “dwelling-house,” and distinguishes it from the third class of offenses which embrace only breaking into “an uninhabited house with intent to commit a felony.”

The verdict is therefore clearly a conviction of the offense of breaking into a house without such intent, which; constitutes the second class of offenses, above set out.

Under section 3269, this being a less degree of the crime, the defendant was properly convicted upon the evidence, under the charge for burglary. S. v. Fleming, 107 N. C., 909. So it has been held that under an indictment for murder the conviction can be of murder in the first degree, of murder in the second degree, of manslaughter, of an assault and battery, or even of a simple assault. S. v. Fleming, supra. Indeed, under an indictment for burglary the prisoner can be convicted of larceny. S. v. Grisham, 2 N. C., 13; S. v. Allen, 11 N. C., 356. These decisions were at ^common law and before the passage of our present statute. Revisal, 3269.

Indeed, this very case has already been decided in S. v. Hooker, 145 N. C., 581, where the Court held that the offenses charged in the second class of section 3333, under which this verdict comes, if the words “with intent to commit larceny” were inserted, they were “surplusage,” because “unnecessary to be proven,” and any proof offered of such intent was merely “irrelevant and harmless.” It follows, therefore, that the jury finding “no intent to commit a felony” cannot vitiate the verdict when the verdict would be good on a charge for this offense even if the indictment had contained those words and insufficient proof of intent was offered. This for the very simple reason that the offense of “breaking and entering a house” is complete without any felonious intent. It follows, therefore, that a verdict of “guilty of housebreaking,” adding, “with no intent to commit a felony,” is simply finding every element that the subsection charges to constitute the crime. This addition to the verdict is the merest surplusage, and neither the judge below nor jury are chargeable with a miscarriage of justice in turning loose a man found “guilty of housebreaking.”

*458As construed by tbe Court, it is no offense in tbis State to unlawfully and willfully “break and enter tbe dwelling of another otherwise than by burglarious breaking,” or to “break and enter any other bouse where there is valuable property,” without showing further that there was an intent to commit a felony therein; which is not easy to show, 'and which the law does not require to be shown. The statute, as written (Revisal, 3333), requires such intent only when there is the otherwise comparatively harmless act of breaking and entering an uninhabited hoiise. *