State v. Spear

Clare, C. J.,

dissenting: Revisal, 3269, provides: “Upon the trial of any indictment tbe prisoner may be convicted of tbe crime charged therein, or of a less degree of the same crime, or of an attempt to commit tbe crime so charged, or of an attempt to commit a less degree of tbe same crime.”

Revisal, 3333, under tbe sub-title “Burglary,” provides: “If any person shall break or enter a dwelling-house -of another otherwise than by a burglarious-breaking; or shall break and enter a storehouse, shop, warehouse, banking house, counting house, or other building, where any merchandise, chattel, money, valuable security, or other personal property shall be; or shall break and enter any uninhabited house, with intent to commit a felony or other infamous crime therein; every such person shall be guilty of a felony.”

It will thus be seen that this section denounces three distinct classes of offenses, which classes'are separated appropriately by a semicolon. Each of these offenses is a lesser degree of the offense of burglary being found, as stated in the sub-title appropriated to that offense. Clark Cr. Law, 269.

The jury for their verdict found the defendant “guilty of housebreaking, with no intent to commit a felony.” This brings the offense exactly under the second class of offenses marked out in section 3333, in which no intent to commit a felony is required. S. v. Hooker, 145 N. C., 581. The verdict distinguishes this offense from the first class of offenses in Revisal, *4573333, by its not being termed a “dwelling-house,” and distinguishes it from the third class of offenses which embrace only breaking into “an uninhabited house with intent to commit a felony.”

The verdict is therefore clearly a conviction of the offense of breaking into a house without such intent, which; constitutes the second class of offenses, above set out.

Under section 3269, this being a less degree of the crime, the defendant was properly convicted upon the evidence, under the charge for burglary. S. v. Fleming, 107 N. C., 909. So it has been held that under an indictment for murder the conviction can be of murder in the first degree, of murder in the second degree, of manslaughter, of an assault and battery, or even of a simple assault. S. v. Fleming, supra. Indeed, under an indictment for burglary the prisoner can be convicted of larceny. S. v. Grisham, 2 N. C., 13; S. v. Allen, 11 N. C., 356. These decisions were at ^common law and before the passage of our present statute. Revisal, 3269.

Indeed, this very case has already been decided in S. v. Hooker, 145 N. C., 581, where the Court held that the offenses charged in the second class of section 3333, under which this verdict comes, if the words “with intent to commit larceny” were inserted, they were “surplusage,” because “unnecessary to be proven,” and any proof offered of such intent was merely “irrelevant and harmless.” It follows, therefore, that the jury finding “no intent to commit a felony” cannot vitiate the verdict when the verdict would be good on a charge for this offense even if the indictment had contained those words and insufficient proof of intent was offered. This for the very simple reason that the offense of “breaking and entering a house” is complete without any felonious intent. It follows, therefore, that a verdict of “guilty of housebreaking,” adding, “with no intent to commit a felony,” is simply finding every element that the subsection charges to constitute the crime. This addition to the verdict is the merest surplusage, and neither the judge below nor jury are chargeable with a miscarriage of justice in turning loose a man found “guilty of housebreaking.”

*458As construed by tbe Court, it is no offense in tbis State to unlawfully and willfully “break and enter tbe dwelling of another otherwise than by burglarious breaking,” or to “break and enter any other bouse where there is valuable property,” without showing further that there was an intent to commit a felony therein; which is not easy to show, 'and which the law does not require to be shown. The statute, as written (Revisal, 3333), requires such intent only when there is the otherwise comparatively harmless act of breaking and entering an uninhabited hoiise. *