STATE of North Carolina
v.
Walter Lee COX.
No. 70.
Supreme Court of North Carolina.
April 12, 1972.*787 Ramsey, Jackson & Hubbard by George W. Jackson, Roxboro, for defendant appellant.
Robert Morgan, Atty. Gen., and James B. Richmond, Asst. Atty. Gen., for the State of North Carolina.
HUSKINS, Justice:
Defendant states in his brief that he has been unable to find reversible error in the trial below and simply presents the record in the hope that the Court will discover error ex mero motu. While we are not required to do so under our rules, we have nevertheless examined the entire record in view of the seriousness of the charges and the sentences imposed. The appeal itself constitutes an exception to the judgment and presents for review any error appearing on the face of the record proper, even in the absence of proper exception and assignment. State v. Elliott, 269 N.C. 683, 153 S.E.2d 330 (1967).
In the first case (No. 70 CR 4203) defendant was charged with and convicted of common law robbery. The bill of indictment is proper in form, and the judgment is supported by the verdict and is within the limits authorized by G.S. § 14-2. No error appears of record with respect to defendant's conviction of common law robbery. Hence the judgment in the robbery case must be upheld.
In the second case (No. 70 CR 4204) defendant was charged with a capital felony in the bill of indictment and convicted of burglary in the second degree for which he received a prison sentence of thirty years. To insure the proper administration of justice, we have reviewed not only the record proper but the evidence and the charge of the court as well.
All the State's evidence tends to show that defendant entered the McWhorter dwelling during daylight hours. Mr. McWhorter himself testified that he first saw defendant "at approximately 1:30 in the afternoon when I returned to my house after going out for lunch." There is no evidence of entry during the hours of darkness. Rather, the State's evidence shows a breaking or entering in the daytime with intent to commit a felony in violation of G.S. § 14-54, a lesser degree of the offense of burglary punishable by imprisonment not to exceed ten years under G.S. § 14-2.
Burglary was a criminal offense at common law. "To warrant a conviction thereof it must be made to appear that there was a breaking and entering during the nighttime of a dwelling or sleeping apartment with intent to commit a felony therein." (Emphasis added) State v. Mummord, 227 N.C. 132, 41 S.E.2d 201 (1947). Since 1889, burglary has been divided into two degrees by G.S. § 14-51. If the burglarized dwelling is occupied, it is burglary in the first degree; if unoccupied, it is burglary in the second degree. G.S. § 14-51; State v. Allen, 186 N.C. 302, 119 S.E. 504 (1923); State v. Morris, 215 N.C. 552, 2 S.E.2d 554 (1939). To constitute burglary in either degree, however, the common law required the felonious breaking and entering to occur in the nighttime, State v. Whit, 49 N.C. 349 (1857); and this common law requirement is still the law in North Carolina. G.S. § 4-1. By virtue of the cited statute, all parts of the common law of England which were heretofore in force and which have not been abrogated or repealed by statute remain in full force within this State. State v. Lackey, 271 N.C. 171, 155 S.E.2d 465 (1967); State v. Ingland, 278 N.C. 42, 178 S.E.2d 577 (1971).
In light of these principles, the burglary charge was submitted to the jury under a misapprehension of the law, and defendant's conviction of burglary in the second degree cannot stand. To do justice in this case and to insure the proper administration of the criminal laws, we deem it appropriate to exercise our general supervisory jurisdiction conferred on the Supreme Court by Article IV, Section 12(1) of the Constitution of North Carolina, to take notice of the total lack of proof of *788 burglary. Compare State v. Brown, 263 N.C. 786, 140 S.E.2d 413 (1965).
The judge charged the jury in the burglary case as follows:
"As to the charge of burglary in the second degree, I charge you that if you find from the evidence and beyond a reasonable doubt, the burden being on the State to so satisfy you that on the 17th day of November, 1970, that this defendant, Walter Lee Cox, did break and enter into the dwelling house here in Roxboro, owned and occupied by Sanders McWhorter, that at the time of the breaking and entering the building which is [sic] used as a dwelling house by Sanders McWhorter, that at the time of the breaking and entering no person was then physically inside of the dwelling house and that at the time of the breaking and entering it was the intent of the defendant to commit the felony of robbery therein, then upon your finding of these facts beyond a reasonable doubt, it would be your duty to return a verdict of guilty, as charged, of burglary in the second degree."
Since all the evidence shows the offense occurred at approximately 1:30 in the afternoon, it is perfectly apparent that the jury found the very facts enumerated in the judge's chargefacts which establish breaking and entering of the McWhorter residence in the daytime with intent to commit the felony of robbery therein. The jury mislabeled its verdict, calling it burglary in the second degree, because the judge erroneously instructed it to do so. The verdict must therefore be considered a verdict of felonious breaking and entering, a lesser degree of the crime of burglary, and a violation of G.S. § 14-54(a) punishable by imprisonment not to exceed ten years under G.S. § 14-2. Hence, leaving the verdict undisturbed but recognizing it for what it is, the judgment is vacated in the burglary case (No. 70 CR 4204) and the cause is remanded to the Superior Court of Person County for the pronouncement of a judgment as upon a verdict of guilty of felonious breaking and entering. G.S. § 14-54(a); G.S. § 14-2; State v. Jones, 275 N.C. 432, 168 S.E.2d 380 (1969); State v. Foster, 268 N.C. 480, 151 S.E.2d 62 (1966). The Clerk of the Superior Court of Person County shall thereupon issue a revised commitment in Case No. 70 CR 4204, bearing the same date as the original commitment, to be substituted for the commitment heretofore issued. The effect will be, and it is so intended, that the defendant will receive credit upon the new commitment for all the time heretofore served for second degree burglary.
Inasmuch as the valid judgment of imprisonment for ten years pronounced in Case No. 70 CR 4203 was made to begin at the expiration of the thirty-year sentence imposed in Case No. 70 CR 4204, which is now vacated, Case No. 70 CR 4203 is remanded to the Superior Court of Person County to the end that the judgment may be modified so as to provide that the ten-year sentence shall commence at the expiration of the sentence which may be imposed in Case No. 70 CR 4204, or may run concurrently with it, as the court in its discretion may determine.
In the common law robbery case (70 CR 4203)Remanded.
In the burglary case (70 CR 4204)Remanded for Judgment.