{ "id": 8562249, "name": "STATE OF NORTH CAROLINA v. JOHNAS BELL", "name_abbreviation": "State v. Bell", "decision_date": "1973-12-12", "docket_number": "No. 44", "first_page": "416", "last_page": "420", "citations": [ { "type": "official", "cite": "284 N.C. 416" } ], "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": "11 S.E. 2d 280", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "218 N.C. 442", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620702 ], "opinion_index": 0, "case_paths": [ "/nc/218/0442-01" ] }, { "cite": "145 S.E. 2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "266 N.C. 55", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559584 ], "opinion_index": 0, "case_paths": [ "/nc/266/0055-01" ] }, { "cite": "153 S.E. 2d 44", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "269 N.C. 453", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564264 ], "opinion_index": 0, "case_paths": [ "/nc/269/0453-01" ] }, { "cite": "45 S.E. 2d 42", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "228 N.C. 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625255 ], "opinion_index": 0, "case_paths": [ "/nc/228/0208-01" ] }, { "cite": "172 S.E. 2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "276 N.C. 361", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561421 ], "opinion_index": 0, "case_paths": [ "/nc/276/0361-01" ] }, { "cite": "144 S.E. 2d 591", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "265 N.C. 517", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575989 ], "opinion_index": 0, "case_paths": [ "/nc/265/0517-01" ] }, { "cite": "155 S.E. 2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "270 N.C. 780", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571186 ], "opinion_index": 0, "case_paths": [ "/nc/270/0780-01" ] }, { "cite": "187 S.E. 2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "281 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573974 ], "opinion_index": 0, "case_paths": [ "/nc/281/0131-01" ] } ], "analysis": { "cardinality": 433, "char_count": 8547, "ocr_confidence": 0.572, "pagerank": { "raw": 3.1817352287330215e-07, "percentile": 0.8645731855409331 }, "sha256": "ae1e4c03789ce0443c4868ec1d5693ffad73bbe5641b16c3844d5414b06d5492", "simhash": "1:03bb6fc64a3f99dd", "word_count": 1497 }, "last_updated": "2023-07-14T18:23:00.028129+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. JOHNAS BELL" ], "opinions": [ { "text": "BRANCH, Justice.\nThe 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.\nBurglary in the first degree is the breaking and entering during, the \u2022 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.\nG.S. 14-54(a) provides: \u201cAny 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.\u201d\nThe 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.\nIf 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). State v. Brown, 266 N.C. 55, 145 S.E. 2d 297.\nIn 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\u2019s guilt of non-burglarious breaking or entering.\nIn instant case, there was evidence that the last person known to enter the dwelling found the front door open and \u201cshe did not lock the front door.\u201d 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 screen on the left of the front door was slit and unlatched. The evidence does not establish whether the window was open or whether the \u201cslit\u201d 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.\nThe 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 bur-glarious breaking.\nUnder these circumstances, defendant was entitled \u201c ... to have different views arising on the evidence presented to the jury upon proper instructions. ...\u201d State v. Childress, supra.\nFor failure to charge on the offense of non-burglarious breaking or entering, there must be a\nNew trial.", "type": "majority", "author": "BRANCH, Justice." } ], "attorneys": [ ", . Attorney General Robert Morgan by Assistant Attorney General Millard R. Rich, Jr. for the State.", "John J. Schramm, Jr. for the defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOHNAS BELL\nNo. 44\n(Filed 12 December 1973)\n1. Burglary and Unlawful Breakings \u00a7 1\u2014 burglary defined\nBurglary 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.\n2. Burglary and Unlawful Breakings \u00a7 2\u2014 breaking or entering \u2014 lesser offense of burglary\nThe statutory offense of breaking or entering defined by G.S. 14-54(a) is a lesser included offense of burglary in the first degree.\n3. Criminal Law \u00a7 115\u2014 necessity for submitting lesser included offense\nWhen there is some evidence supporting a lesser included offense, a defendant is entitled to a charge thereon even where 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.\n4. Burglary and Unlawful Breakings \u00a7 7\u2014 burglary \u2014 failure to submit felonious breaking or entering\nIn this prosecution for first degree burglary, the trial court erred in failing to submit to the jury the lesser included offense of felonious breaking or entering where the evidence and the inferences to be reasonably drawn therefrom would not have required the jury to find that defendant entered the dwelling by a burglarious breaking.\nAppeal by defendant from Collier, 13 February 1973 Session of Forsyth. Defendant was charged in a bill of indictment with burglary in the first degree. He entered a plea of not guilty.\nThe State\u2019s evidence tended to show that Bonnie Lewis Whicker shared a room with her sister on the third floor of the Julia Higgins Cottage at the Children\u2019s Home located on Reynolda Road in Winston-Salem, North Carolina. The sisters retired about 10:00 p.m. on the night of 26 May 1971. Later that night or in the early morning hours of 27 May 1971, Bonnie Lewis Whicker was awakened, and realizing that someone was in her bed, screamed. A man who was lying in the bed with her put a knife to her throat and told her he would cut her throat if she screamed again. Other girls in the cottage were awakened and came to the door of the room. One of the girls turned on the lights in the room and all the girls who had gathered at the Whickers\u2019 room began screaming. The man on the bed pulled up his pants, ran from the room, down the stairs, and out of the cottage.\nMiss Janice Chamberlin testified, in part, that she lived in the room next to the Whicker girls. On the evening of 26 May 1971 she had been \u201cbaby-sitting\u201d and returned to the cottage at about 9:30 p.m. She entered the cottage through the front door, which was open. She thought that she was the last one in but she did not lock the door. Miss Chamberlin was one of the persons awakened by Bonnie\u2019s screams. When the lights were turned on, she saw defendant sitting on the bed with a knife to Bonnie\u2019s throat. Miss Chamberlin ran down the stairway and defendant came directly behind her and \u201cwent out the living room window.\u201d On the cross-examination she testified that Miss Weaver, who was in charge of the cottage, generally locked the front door at approximately 9:30 p.m. There were three or four more doors to the cottage which were unlocked during the daytime and locked at night.\nWilliam R. Edwards, Superintendent of the Children\u2019s Home, testified that he was awakened by police car sirens and observed people at the Julia Higgins Cottage. Upon his arrival, he saw that the window screen to the left of the front door had a slit in it and the screen to the right of the door was completely pushed out. It appeared to him that someone had gone through the screen to the right of the door.\nW. M. Reavis of the Forsyth County Police Department testified that the window screen to the right of the door was completely knocked out and that the screen to the left of the door was unlatched and had a slit in it.\nBonnie Lewis Whicker, Lou Ann Whicker and Janice Cham-berlin each made an in-court identification of defendant as the man they saw on Bonnie Whieker\u2019s bed.\nDefendant offered no evidence.\nThe jury returned a verdict of guilty of first degree burglary. Defendant gave notice of appeal from judgment imposing a life sentence but failed to perfect his appeal within the time allowed. We allowed defendant\u2019s Petition for Writ of Certiorari to Forsyth County Superior Court on 3 July 1973.\n, . Attorney General Robert Morgan by Assistant Attorney General Millard R. Rich, Jr. for the State.\nJohn J. Schramm, Jr. for the defendant appellant." }, "file_name": "0416-01", "first_page_order": 436, "last_page_order": 440 }