State v. Brewer
State v. Brewer
Opinion of the Court
By his sole assignment of error defendant argues that the trial court erred in denying his motion to dismiss the charge of first degree burglary. Defendant contends that the State’s proof was fatally at variance from the indictment because the felonious intent alleged was not the felonious intent proved. We disagree.
The indictment charging defendant with the crime of first degree burglary alleged that the defendant feloniously broke and entered the occupied dwelling of Gwendolyn Hill during the nighttime with the intent to commit the felony of larceny. The trial judge instructed the jury that the State was required to prove as one of the essential elements of first degree burglary that the defendant entered with the intent to commit larceny. The defendant argues that the State’s evidence shows that defendant’s intent at the time of entry was to commit common law robbery and not larceny and therefore the proof was fatally at variance from the crime charged. We are not persuaded.
First degree burglary is defined as the felonious breaking and entering of the occupied dwelling house or sleeping apartment of another during the nighttime with intent to commit a felony therein. State v. Beaver, 291 N.C. 137, 229 S.E. 2d 179 (1976). “[Ajctual commission of the felony, which the indictment charges was intended by the defendant at the time of the breaking and entering, is not required in order to sustain a conviction of burglary.” State v. Bell, 285 N.C. 746, 750, 208 S.E. 2d 506, 508 (1974) (quoting State v. Tippett, 270 N.C. 588, 155 S.E. 2d 269 (1967)). Common law robbery is the felonious taking of money or goods of value from the person of another, against his will by violence or fear. State v. Black, 286 N.C. 191, 209 S.E. 2d 458 (1974). Larceny is the “felonious taking by trespass and carrying away by any person of the goods or personal property of another, without the latter’s consent and with the felonious intent permanently to deprive the owner of his property and to convert it to the taker’s own use.” State v. McCrary, 263 N.C. 490, 492, 139
This is not a case where the defendant has been convicted of a greater offense than that alleged in the indictment. Rather, the issue here is whether the State’s evidence was sufficient to show that defendant intended, upon breaking and entering, to commit the felony of larceny. “Intent is a mental attitude seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred. [Citations omitted.] ‘The intent with which an accused broke and entered may be found by the jury from evidence as to what he did within the house.’ ” State v. Bell, supra at 750, 208 S.E. 2d at 508 (quoting State v. Tippett, supra).
Sufficient evidence was presented by the State to raise an inference of intent to commit larceny. The defendant followed his victims to the apartment and as they attempted to close the apartment door he pushed his way into the apartment. He took a purse from one of his victims and then fled. The evidence clearly supports a finding that he intended to commit and in fact did commit larceny from the person. State v. Massey, 273 N.C. 721, 161 S.E. 2d 103 (1968). The fact that he was required to use force against his victim in order to take the purse, thereby placing the victim in fear and elevating his crime to that of common law robbery, does not serve to establish a fatal variance in the indictment and the proof.
The cases relied on by the defendant are distinguishable. In State v. Cooper, 288 N.C. 496, 219 S.E. 2d 45 (1975) the indictment charged defendant with first degree burglary and alleged that defendant broke and entered with intent to commit a felony “by sexually assaulting a female.” Our Supreme Court held that the indictment was defective because the phrase “sexually assaulting a female” could include a misdemeanor and first degree burglary requires intent to commit a felony. Unlike the indictment in Cooper, supra, the indictment here alleged the requisite felonious intent. For purposes of defining the crime of burglary, larceny is deemed a felony without respect to the value of the property
In this case we believe the manner of the defendant’s entry into the house does not give rise to an inference that he intended to commit larceny. The defendant was apparently confused when he entered the house. After Ms. Coates and Ms. Ashley left him alone he did not try to take anything. We do not believe there is a logical inference from the manner of the defendant’s entry into the house that he intended to commit larceny. [Emphasis added.]
Id. at 326, 307 S.E. 2d at 442. Hankins is distinguishable on its facts from the case before us.
In ruling upon defendant’s motion to dismiss the charge of first degree burglary, the trial court must view the evidence in
No error.
Reference
- Full Case Name
- STATE OF NORTH CAROLINA v. KENNETH BREWER
- Cited By
- 2 cases
- Status
- Published