Opinion
June Term, 1876.
Attempt to Commit a Felony — Intent.
Whenever there is a criminal intent to commit a felony, and some act is done amounting to an attempt to accomplish the purpose without doing it, the perpetrator is indictable as for a misdemeanor.
INDICTMENT for an attempt to commit burglary, tried before Moore, J., at December (Special) Term, 1875, of HALIFAX.
The bill of indictment charges that the defendant "did attempt to commit an offense prohibited by law, to wit: did feloniously, burglariously, maliciously and secretly attempt to break and enter the dwelling-house of one Spier Whitaker, there situate, in the night-time of the day aforesaid, by being then and there in the porch of said dwelling-house, and by then and there endeavoring feloniously, burglariously, maliciously and secretly, to break open the door and window of said dwelling-house with the intent," etc.
Upon motion of the prisoner's counsel his Honor quashed the bill and the State appealed.
Attorney-General Hargrove, with whom was Bledsoe, for the State.
Walter Clark for defendant.
Whenever there is a criminal intent to commit a (28) felony — as in this case the burglary — and some act is done mounting to an attempt to accomplish the purpose without doing it, the perpetrator is indictable as for misdemeanor. Wharton's Criminal Law, sec. 2696. The King v. Higgins, 2 East., 4, is a very full and satisfactory authority.
It was error to quash the indictment.
PER CURIAM. Reversed.
Cited: S. v. Colvin, 90 N.C. 718; S. v. Stephens, 170 N.C. 746.