State v. Alexander

197 S.E.2d 272 (1973)

18 N.C. App. 460

STATE of North Carolina v. Charles Edgar ALEXANDER.

No. 7317SC238.

Court of Appeals of North Carolina.

June 13, 1973.

Certiorari Denied July 12, 1973.

*273 Atty. Gen. Robert Morgan by Associate Atty. Howard A. Kramer for the State.

Bethea, Robinson & Moore by D. Leon Moore, Reidsville, for defendant appellant.

Certiorari Denied by Supreme Court July 12, 1973.

CAMPBELL, Judge.

Under G.S. § 14-51 second-degree burglary is the crime as defined at the common law, except that the dwelling house must not be occupied by anyone at the time of the commission of the crime.

Burglary consists of five elements: (1) a breaking, (2) an entry, (3) of a dwelling house (mansion-house), (4) in the nighttime, and (5) with the intent to commit a felony therein. State v. Whit, 49 N.C. 349 (1857).

Breaking is an essential element of the crime. More is required than merely the crossing of an imaginary line.

"[T]here must be a breaking, removing, or putting aside of something material, which constitutes a part of the dwelling-house and is relied on as a security against intrusion. Leaving a door or window open shows such negligence and want of proper care as to forfeit all claim to the peculiar protection extended to dwelling-houses. But if the door or window be shut, it is not necessary to resort to locks, bolts, or nails; because a latch to the door and the weight of the window may well be relied on as a sufficient security. . . ." State v. Boon, 35 N.C. 244, 246 (1852).

The State must present evidence that a breaking occurred, or from which it may reasonably be inferred that the defendant broke into the dwelling. Such proof is usually accomplished by testimony showing that prior to the entry all doors and windows were closed. State v. Tippett, 270 N.C. 588, 155 S.E.2d 269 (1967); State v. McAfee, 247 N.C. 98, 100 S.E.2d 249 (1957); State v. Feyd, 213 N.C. 617, 197 S.E. 171 (1938); State v. Walls, 211 N.C. 487, 191 S.E. 232 (1937); State v. Ratcliff, 199 N.C. 9, 153 S.E. 605 (1930); State v. Allen, 186 N.C. 302, 119 S.E. 504 (1923); State v. Johnston, 119 N.C. 883, 26 S.E. 163 (1896).

In State v. Johnson, 218 N.C. 604, 12 S.E.2d 278 (1940), the windows were open, but screens covering the windows were attached in place. In State v. Fleming, 107 N.C. 905, 12 S.E. 131 (1890), the windows were open, but blinds inside the house covered them.

In the instant case, while the evidence for the State fails to reveal whether the window was open or not, nevertheless the defendant, by his own statement, shows there was a breaking. The defendant testified, "I did not go in the window of the house. I went through the door. I just opened the door and went in." Thus, the defendant's own evidence supplies this element of the commission of the crime.

The fifth element of burglary the intent to commit a felonymust exist at the time of the breaking and entering. Intent, being a state of mind, is difficult to prove and ordinarily is a question for the jury to decide. In the instant case the defendant contended that he went into the house only for the purpose of looking it over to determine whether or not he would like to purchase it, since there was a "For Sale" sign in the yard. On the other hand, the State contended that a person does not usually go into a home in the middle of the night when the home was unoccupied but full of household goods unless such person had an intent to steal.

As stated in State v. Accor and State v. Moore, 277 N.C. 65, 175 S.E.2d 583 (1970):

"`. . . Numerous cases, however, hold that an unexplained breaking and entering into a dwelling house in the *274 nighttime is in itself sufficient to sustain a verdict that the breaking and entering was done with the intent to commit larceny rather than some other felony. The fundamental theory, in the absence of evidence of other intent or explanation for breaking and entering, is that the usual object or purpose of burglarizing a dwelling house at night is theft.'"

We hold that in the instant case the evidence presented a question for the jury.

The charge of the trial court was adequate and sufficient to present the contentions of the defendant to the jury and no exception was assigned to this charge by the defendant.

We think the evidence, when considered in the light strongest for the State, presented a jury question; and the defendant has had a trial free from any prejudicial error.

No error.

BRITT and BALEY, JJ., concur.