{ "id": 8571421, "name": "STATE v. CLARENCE K. JONES and ROY LEE", "name_abbreviation": "State v. Jones", "decision_date": "1965-03-24", "docket_number": "", "first_page": "134", "last_page": "137", "citations": [ { "type": "official", "cite": "264 N.C. 134" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "140 S.E. 2d 786", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "263 N.C. 786", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573163 ], "opinion_index": 0, "case_paths": [ "/nc/263/0786-01" ] }, { "cite": "139 S.E. 2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "263 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569757 ], "opinion_index": 0, "case_paths": [ "/nc/263/0283-01" ] }, { "cite": "124 S.E. 2d 91", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "256 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572822 ], "pin_cites": [ { "page": "378" } ], "opinion_index": 0, "case_paths": [ "/nc/256/0372-01" ] }, { "cite": "139 S.E. 2d 627", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "263 N.C. 517", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571444 ], "opinion_index": 0, "case_paths": [ "/nc/263/0517-01" ] }, { "cite": "84 S.E. 2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 156", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8604316 ], "pin_cites": [ { "page": "159" } ], "opinion_index": 0, "case_paths": [ "/nc/241/0156-01" ] }, { "cite": "25 S.E. 2d 751", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "223 N.C. 258", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8605178 ], "opinion_index": 0, "case_paths": [ "/nc/223/0258-01" ] }, { "cite": "89 S.E. 2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "242 N.C. 700", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621799 ], "pin_cites": [ { "page": "703" } ], "opinion_index": 0, "case_paths": [ "/nc/242/0700-01" ] } ], "analysis": { "cardinality": 413, "char_count": 7889, "ocr_confidence": 0.565, "pagerank": { "raw": 1.4773950049001386e-06, "percentile": 0.9915390820082561 }, "sha256": "52140a3dc3220cc345c45928c22238e992a04e5be175a13b968e697739fcca6f", "simhash": "1:37f9496d6361b8e2", "word_count": 1331 }, "last_updated": "2023-07-14T15:18:06.877661+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. CLARENCE K. JONES and ROY LEE." ], "opinions": [ { "text": "Bobbitt, J.\nThe State\u2019s evidence, in brief summary, tends to show: On August 5, 1964, Robert Casey, Sr. was engaged in the laundry and dry cleaning business in Goldsboro. There is no door between the main building of his plant and the adjoining boiler room. About 9:00 p.m. defendants broke an outside window to the boiler room. Later that night, having entered the boiler room, defendants broke an inside window between the boiler room and the main building. Robert Casey, Jr. was in the main building and heard the noise. He accosted defendants. They fled through the boiler room. They were arrested later that night.\nThere was no evidence any personal property within the boiler room or main building of Casey\u2019s Laundry was stolen or disturbed. There was no-positive testimony as to whether \u201cmerchandise, chattels, money, valuable securities\u201d were in the boiler room or main building.\nThere was no motion for judgment \u201cas in case of nonsuit.\u201d G.S. 15-173. Defendants\u2019 assignments of error relate to the charge.\nThe court instructed the jury to return a verdict of guilty if satisfied from the evidence beyond a reasonable doubt \u201cthat at the time they broke and entered . . . they had the intent to take, steal and carry away goods, chattels or merchandise in Casey\u2019s Laundry building\u201d; and, if not so satisfied, to return a verdict of not guilty. Defendants contend the court should have, but did not, charge the jury substantially as follows: If the State has satisfied you from the evidence beyond a reasonable doubt that defendants unlawfully (wrongfully) broke and entered Casey\u2019s Laundry, but has failed to satisfy you beyond a reasonable doubt that they did so \u201cwith intent to commit a felony or other infamous crime therein,\u201d they would be guilty of a misdemeanor; and in such case it would be your duty to return a verdict of guilty as to such misdemeanor. Defendants excepted to and assign as error the court\u2019s failure to so charge.\nG.S. 14-54, on which the indictment is based, was amended in 1955 (S.L. 1955, c. 1015) by adding this sentence: \u201cWhere such breaking or entering shall be wrongfully done without intent to commit a felony or other infamous crime, he shall be guilty of a misdemeanor.\u201d It is noted: In the original portion of G.S. 14-54, the phrase \u201cbreak or enter\u201d (our italics) appears in the definition of the felony.\nTo convict of the felony defined in G.S. 14-54, the State must satisfy the jury from the evidence beyond a reasonable doubt that a building described in the statute was broken into or entered \u201cwith intent to commit a felony or other infamous crime therein.\u201d S. v. Cook, 242 N.C. 700, 703, 89 S.E. 2d 383, and cases cited. Felonious intent, an essential element of the felony defined in G.S. 14-54, \u201cmust be alleged and proved, and the felonious intent proven, must be the felonious intent alleged, which, in this case, is the \u2018intent to steal.\u2019 \u201d S. v. Friddle, 223 N.C. 258, 25 S.E. 2d 751, and cases cited.\nG.S. 15-170 provides: \u201cUpon the trial of any indictment the prisoner may be convicted of the crime charged therein or of a less degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a less degree of the same crime.\u201d\nG.S. 14-54, as amended, defines a felony and defines a misdemeanor. The unlawful breaking or entering of a building described in this statute is an essential element of both offenses. The distinction rests solely on whether the unlawful breaking or entering is done \u201cwith intent to commit a felony or other infamous crime therein.\u201d Hence, the misdemeanor must be considered \u201ca less degree of the same crime,\u201d an included offense, within the meaning of G.S. 15-170.\n\u201cThe necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor.\u201d S. v. Hicks, 241 N.C. 156, 159, 84 S.E. 2d 545. Cf. S. v. Summers, 263 N.C. 517, 139 S.E. 2d 627.\nThere was ample evidence to support the conviction of defendants of the misdemeanor defined in G.S. 14-54. The only evidence relevant to defendants\u2019 alleged felonious intent is circumstantial in nature and is summarized in the first paragraph of this opinion. Defendants contend, and we agree, that the court\u2019s failure to submit for jury consideration and decision whether defendants were guilty of the misdemeanor was prejudicial error. Error in this respect is not cured by a verdict convicting defendants of the felony. S. v. Hicks, supra, p. 160, and cases cited. On account of such prejudicial error, defendants are entitled to a new trial.\nIt is noted: Under G.S. 14-72, as amended in 1959 (S.L. 1959, c. 1285), larceny by breaking or entering a building referred to therein is a felony without regard to the value of the stolen property. S. v. Cooper, 256 N.C. 372, 378, 124 S.E. 2d 91.\nWe take notice ex mero motu of a question concerning the sufficiency of the indictment. The indictment refers to the building as \u201coccupied by one Casey\u2019s Laundry\u201d in which there was merchandise, etc., of \u201csaid Casey\u2019s Laundry.\u201d The evidence refers to a laundry and dry cleaning business operated by Robert Casey, Sr., at 1109 North William Street, Goldsboro. Since a'new trial, is awarded, whether the indictment is deficient need not be determined. In this connection, see S. v. Stinson, 263 N.C. 283, 139 S.E. 2d 558, and cases cited; S. v. Brown, 263 N.C. 786, 140 S.E. 2d 786. Doubtless, before proceeding further, the solicitor will submit a new bill in which the occupant of the building and the owner of the personal property therein will be precisely and accurately described and identified.\nNew trial.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Attorney General Bruton and Deputy Attorney General McGal-liard for the State.", "Herbert B. Hulse and Julian T. Gaskill for defendant appellants." ], "corrections": "", "head_matter": "STATE v. CLARENCE K. JONES and ROY LEE.\n(Filed 24 March, 1965.)\n1. Burglary and Unlawful Breakings \u00a7 2\u2014\nG.S. 14-54, as amended, constitutes unlawful breaking or entering a building a felony when such breaking or entering is done with intent to commit a felony or other infamous crime therein and a misdemeanor in the absence of such felonious intent, and constitutes the misdemeanor a less degree of the offense.\n2. Burglary and Unlawful Breakings \u00a7 5; Criminal Law \u00a7 109\u2014\nWhere there is evidence that defendant unlawfully broke into and entered a building, but the only evidence of any felonious intent in doing so is entirely circumstantial, it is the duty of the court to submit the question of defendant\u2019s guilt of the misdemeanor of breaking and entering without felonious intent, this being a less degree of the crime presented by the evidence. G.S. 15-170.\n3. Burglary and Unlawful Breakings \u00a7 3.1\u2014\nAn indictment for an unlawful breaking with intent to steal should designate precisely and accurately the occupant of the building and the owner of the personal property therein.\nAppeal by defendants from Parker, J., August 1964 Session of WayNE.\nDefendants were tried on a bill of indictment charging that they, on August 5, 1964, in Wayne County, \u201ca certain storehouse, shop, warehouse, dwelling house and building occupied by one Casey\u2019s Laundry wherein merchandise, chattels, money, valuable securities were and were being well kept, unlawfully, wilfully and feloniously did break and enter with intent to steal, take, and carry away the merchandise, chattels, money, valuable securities of the said Casey\u2019s Laundry,\u201d etc.\nThe only evidence was that offered by the State.\nAs to each defendant, the jury returned a verdict of \u201cguilty.\u201d Judgment as to Lee: Confinement in State\u2019s Prison for not less than five nor more than seven years. Judgment as to Jones: Confinement in State\u2019s Prison for not less than nine nor more than ten years. Defendants appealed.\nAttorney General Bruton and Deputy Attorney General McGal-liard for the State.\nHerbert B. Hulse and Julian T. Gaskill for defendant appellants." }, "file_name": "0134-01", "first_page_order": 170, "last_page_order": 173 }