Summary of Opinion: State v. James Dickens alias Woodrow

Factual and Procedural Background

Defendant was indicted at the May–June 1967 Session on a bill charging that on March 10, 1967, at about 1:00 A.M., he "unlawfully, wilfully, feloniously and burglariously did break and enter the dwelling house of one Maxine Cherry" while the dwelling was actually occupied, with the felonious intent to take goods and chattels. At the May–June session, based on an affidavit of indigency, Judge Morris appointed Wm. D. Etheridge to represent defendant; defendant later stated in open court that he had retained W. O. Rosser, and Etheridge was released.

Prior to the trial at the August 21, 1967 Criminal Session, the solicitor announced in open court that the State would not seek a verdict of first degree burglary but would ask for a verdict of "Felonious B. E." At trial the State alone offered evidence. The trial court submitted to the jury three alternatives: guilty of breaking/entering with intent to commit larceny; guilty of wrongful breaking and entering without intent to commit larceny; or not guilty. The jury returned a verdict of "guilty of wrongful breaking and entering without the intent to commit a felony."

The court pronounced judgment imposing a prison sentence of two years, to begin at the expiration of a prior six-month sentence imposed in Nash County Recorder's Court for larceny (case no. 5371-R). Defendant excepted and appealed. By order of Judge Fountain, Mr. Rosser was appointed to continue as counsel for the appeal and Nash County was ordered to pay necessary costs of preparing the record and defendant's brief.

Legal Issues Presented

Whether the evidence was sufficient to support a finding of unlawful breaking (addressing defendant's assignments of error which related to nonsuit and an excerpt from the charge).
Whether G.S. 14-54 (as amended) treats unlawful breaking or entering a building as a felony when done with felonious intent and as a misdemeanor in the absence of felonious intent, and whether the misdemeanor is a lesser included offense within the meaning of G.S. 15-170.
Whether a defendant may be convicted of the lesser included offense (the misdemeanor) after a trial in which the State did not pursue first-degree burglary and based on the evidence presented.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Jones, 264 N.C. 134, 141 S.E.2d 27	Explains that G.S. 14-54 (as amended) defines both the felony and the misdemeanor forms of unlawful breaking or entering; the distinction depends solely on whether the entry was done with intent to commit a felony or other infamous crime; thus the misdemeanor is a lesser degree (included offense) under G.S. 15-170.	The court relied on this authority to conclude that the misdemeanor of wrongful breaking and entering is an included offense of burglary and thus could be the basis for the jury's verdict and conviction under the statute.
State v. Cloud, 271 N.C. 591, 157 S.E.2d 12	Supporting authority cited in connection with the principle that the misdemeanor is an included offense under the burglary statute and related cases.	The court cited Cloud (and other cases cited therein) as further support for treating the misdemeanor as a lesser included offense and for the court's application of established legal principles in upholding the conviction.

Court's Reasoning and Analysis

The court summarized both direct and circumstantial evidence and analyzed sufficiency with deference to the jury's factfinding:

Direct evidence established that defendant unlawfully entered the Cherry dwelling, was in the kitchen when first seen by the aroused occupants, and exited via the kitchen window.
The court found the circumstantial evidence, viewed in the light most favorable to the State, sufficient to support a jury finding that the kitchen window had been closed and that defendant raised the window and entered through it — i.e., an unlawful breaking.
Although defendant's assignments of error assumed there was no evidence of unlawful breaking (forming the basis for his nonsuit and charge-excerpt complaints), the court stated the evidence was sufficient to support a finding of unlawful breaking. The court also observed that such evidence is not a prerequisite to conviction of the lesser included misdemeanor under the statutes at issue.
The court interpreted G.S. 14-54 (as amended) as setting out both the felony and misdemeanor forms: the unlawful breaking or entering of a building is an essential element of both; the sole distinction is whether the breaking/entering was done with intent to commit a felony or other infamous crime. Therefore, under G.S. 15-170 the misdemeanor is a lesser degree of the same crime and constitutes an included offense.
Applying these legal principles and the facts as supported by the record, the court concluded the jury's verdict of "guilty of wrongful breaking and entering without the intent to commit a felony" was permissible and consistent with approved legal procedure.

Holding and Implications

NO ERROR

Holding: The Supreme Court of North Carolina affirmed the conviction and judgment. The court concluded that the evidence was sufficient to support a finding of unlawful breaking and that, in any event, the misdemeanor of wrongful breaking and entering is a lesser included offense under G.S. 14-54 and G.S. 15-170 such that the defendant could be convicted of that lesser degree offense after trial.

Implications: The direct effect is that the jury verdict of guilty of the misdemeanor (wrongful breaking and entering without intent to commit a felony) and the sentence imposed were upheld. The opinion applies established statutory interpretation and precedent (State v. Jones; State v. Cloud) to treat the misdemeanor as an included offense; the court did not announce a new legal rule beyond applying those authorities to the facts of this case.

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STATE v. JAMES DICKENS ALIAS WOODROW.

Burglary and Unlawful Breakings 2 — G.S. 14-54, as amended, constitutes unlawful breaking or entering a building a felony when such breaking or entering is done with intent to commit a felony or other infamous crime therein and a misdemeanor in the absence of a felonious intent, and constitutes the misdemeanor a less degree of the offense.

Defendant was indicted at May-June 1967 Session in a bill charging that defendant, on March 10, 1967, "unlawfully, wilfully, feloniously and burglariously did break and enter the dwelling house of one Maxine Cherry at or about the hour of 1:00 o'clock A.M. in the nighttime of said day, while the dwelling house was then and there actually occupied by the said Maxine Cherry, with the felonious intent to take, steal and carry away the goods and chattels of Maxine Cherry there situate, . . ." At said session, Judge Morris, based on defendant's affidavit of indigency, appointed Wm. D. Etheridge, Esq., of the Nash County Bar, to represent defendant. Later, upon defendant's statement in open court that he had retained W. O. Rosser, Esq., of the Nash County Bar, to represent him, Mr. Etheridge was released from further obligations to defendant.

Prior to trial of defendant at August 21, 1967 Criminal Session, the solicitor announced in open court "that the State would not seek a verdict of 1st degree burglary but would ask for a verdict of Felonious B. E." At trial, the only evidence was that offered by the State. The court submitted to the jury whether defendant was guilty of breaking or entering the dwelling house of Maxine Cherry with intent to commit larceny, or guilty of wrongful breaking or entering said dwelling house without the intent to commit larceny, or not guilty. The jury returned a verdict of "guilty of wrongful breaking and entering without the intent to commit a felony." The court pronounced judgment imposing a prison sentence of two years, this sentence "to begin at the expiration of the sentence imposed in case No. 5371-R from Nash County Recorder's Court for Larceny, said sentence being for 6 months." Defendant excepted and appealed.

By order of Judge Fountain, Mr. Rosser was appointed to continue to serve as counsel for defendant in connection with his appeal and Nash County was ordered to pay the necessary costs of mimeographing the record and defendant's brief incident to such appeal.

PER CURIAM.

There was direct evidence that defendant unlawfully entered the Cherry dwelling house; that he was in the kitchen when first observed by the aroused occupants; and that he made his exit by way of the kitchen window. Moreover, the circumstantial evidence, when considered in the light most favorable to the State, was sufficient to support a jury finding that the kitchen window had been closed and that defendant had raised the kitchen window and had entered the kitchen by way thereof.

Defendant's assignments of error, which relate to nonsuit and one excerpt from the charge, presuppose there was no evidence of an unlawful breaking. Although, in our view, the evidence was sufficient to support a finding that defendant made his entry pursuant to an unlawful breaking, attention is called to the fact that such evidence was not a prerequisite to conviction.

"G.S. 14-54, as amended, defines a felony and defines a misdemeanor. The unlawful breaking or entering of a building described in this statute is an essential element of both offenses. The distinction rests solely on whether the unlawful breaking or entering is done `with intent to commit a felony or other infamous crime therein.' Hence, the misdemeanor must be considered `a less degree of the same crime,' an included offense, within the meaning of G.S. 15-170." (Our italics.) State v. Jones, 264 N.C. 134, 141 S.E.2d 27. See State v. Cloud, 271 N.C. 591, 157 S.E.2d 12, and cases cited.

Defendant was convicted of "a less degree of the same crime," a misdemeanor, after a trial conducted in accordance with approved legal principles.

No error.

STATE v. DICKENS