The indictment charged the prisoners with the crime of burglary of a dwelling house. They severally plead not guilty. On the trial of this plea the jury rendered a verdict of guilty. They moved in arrest of judgment, assigning as cause that referred to in the opinion of the court. The motion was denied, and they excepted. There was judgment of death against them, and they appealed. The statute (Laws 1889, ch. 434) ratified 11 March, 1889, makes important and material changes and modifications of the common law and the statutes of this State in respect to the crime of burglary. It prescribes that "If the crime be committed in a dwelling house or in a room used as a sleeping apartment in any (875) building, and any person is in the actual occupation of any part of said dwelling house or sleeping apartment at the time the commission of said crime, it shall be burglary in the first degree. Second. If the said crime be committed in a dwelling house or sleeping apartment, not actually occupied by any one at the time of the commission of the crime, or if it be committed in any house within the curtilage of a dwelling house, or in any building not a dwelling house, but in which a room is used as a sleeping apartment, but not actually occupied as such at the time of the commission of said crime, it shall be burglary in the second degree." It further prescribes that "any one so convicted of burglary in the second degree shall suffer imprisonment in the State prison for life, or for a term of years in the discretion of the court." It further prescribes "that when the crime charged in the bill of indictment is burglary in the first degree the jury may render a verdict of guilty of burglary in the second degree, if they deem it proper so to do"; and it is further enacted "that this act shall not apply to any crime committed before its ratification, but as to such crimes the law shall remain such as it was at the time of the commission of the crime."
The prisoners moved in arrest of judgment, assigning as ground of the motion that the indictment failed to charge with sufficient certainty that *Page 604 the offense charged was perpetrated before the enactment of the statute cited above, and, therefore, the court could not see from the record whether the offense was committed before or after such enactment, and could not determine the degree of the crime or the kind or measure of the punishment to inflict.
We are of opinion that the motion cannot be sustained. The statute took effect on 11 March, 1889, and it did not apply to or effect offenses of a date prior to that time. The indictment charges expressly that the offense was committed on 11 November, 1888. This charge is not (876) as explicit and formal as it might and perhaps strictly ought to be as the time so charged is not generally required to be proven certainly as laid. It would have been better — more satisfactory — to have charged that "before 11 March, 1889, to wit, on 11 November, 1888," etc.; still the court could see from the charge as made that the statute cited did not affect it, and it could certainly direct the jury as to the evidence, its bearings and application; and also determine with certainty the kind and measure of punishment to impose. Rex v. Brown, 22 E. C. L., 277.
This case is unlike that of S. v. Wise, 66 N.C. 120, cited and relied upon by the prisoners' counsel. In that case the indictment charged the offense to have been committed before the enactment of the amendatory statute there in question, the evidence produced proved that it was committed after that time, and this Court decided that the court below could no determine intelligently whether the punishment ought to be that prescribed by the first or by the amendatory statute, and arrested the judgment on that account. And in S. v. Massey, 97 N.C. 465, also cited, the offense was committed before the enactment of the amendatory statute, and the indictment charged that it was committed afterwards; if it had charged the offense as having been committed before that time the case would have been very different from what it appeared to be. In the present case the indictment charged and the evidence proved that the offense was committed before the amendatory statute took effect.
The indictment charged an intent to commit a larceny. After the verdict, not before, on the motion for a new trial it was assigned as error that the court had failed to instruct the jury that if they believed the purpose was to commit a robbery then they should acquit. If (877) this objection had merit it came too late, but it could not have availed the prisoners if it had been made in apt time. To rob implies to steal by force. S. v. Cody, 60 N.C. 197.
Cited: S. v. Fleming, 107 N.C. 909; S. v. Brown, 113 N.C. 647; S. v.Coley, 114 N.C. 883; Fields v. Brinson, 179 N.C. 282. *Page 605