(June Term, 1864.)
1. If a man breaks and enters into a dwelling-house by night, with intent to commit a felony, the crime of burglary is consummated, thought after entering the house he desists from an attempt to commit the felony through fear, or because he is resisted.
2. The intent to commit a felony may appear from antecedent circumstances, and if there be a forcible entry into the house at night, the intent so appearing, it is burglary.
(246) INDICTMENT for burglariously breaking and entering a dwelling-house with intent to commit a rape, tried before French, J., at Spring Term, 1864, of MONTGOMERY.
Mary Boyd, the prosecutrix, testified that in the month of August last, about one or two house before day, she was asleep in the house of her sister-in-law, in Montgomery County, and was waked by the noise of some one throwing something against the door and window; she got up and found the prisoner at the window; she asked him what he wanted; he answered, "Something good," and got down from the window and went to the back door and broke it open, entered the house, struck her violently with a water bucket, placed his hands across her breast and threw her down. She resisted as far as she was able. A child of her sister, about 9 years of age, struck at the prisoner with a stick, and the witness called to him to go to a neighbor's for help. As the child went off, the prisoner got off the person of the witness and left the house. The prisoner did not, when he first laid hands on her, or after he had thrown her down, attempt to raise her dress.
One witness testified that the prisoner was between 16 and 17 years of age. Another, that he was between 18 and 19. There was other evidence on the part of the State in confirmation of the testimony of the prosecutrix.
The prisoner is a free negro.
The court presented to the jury the testimony on the part of the State and prisoner, and instructed them on the law, to which instruction no exception was made.
The counsel for the prisoner requested the court to instruct the jury that although they were satisfied from the evidence that the prisoner broke and entered into the dwelling-house in the night-time, with the intent to commit a rape on the prosecutrix, yet if he afterwards desisted on account of the resistance he met with, or through fear (247) or any other cause, that the prisoner was not guilty.
The court declined to give the instruction, and instructed the jury that if they were satisfied from the evidence that the prisoner broke and entered into the dwelling-house in the night-time, with the intent to commit a rape on the prosecutrix, and afterwards, through resistance or fear, abandoned the intent, he was guilty. The counsel for the prisoner excepted. His counsel moved, in arrest of judgment, that the indictment charged an offense at common law, and under the statute in one and the same count, which motion was overruled, and judgment entered according to the verdict.
The indictment is as follows: "The jurors for the State, upon their oath, present that Wesley McDaniel, being a free negro, late of the county of Montgomery, not having the fear of God before his eyes, etc., on, etc., about the hour of 12 in the night of the same day, with force, etc., at, etc., the dwelling-house of one Adeline Boyd, there situate, feloniously and burglariously did break and enter with intent in and upon one Mary Boyd, being a white female in the said dwelling-house, then and there being, with force and arms then and there violenly [violently], forcibly, feloniously, and burglariously, against her will, to ravish and carnally know, contrary to the form of the statute in such case made and provided; and then and there, with force and arms, in and upon the said Mary Boyd, being a white female as aforesaid, in the peace of God and the State, in the said dwelling-house, then and there being, violently, forcibly, feloniously, and burglariously did make an assault, and her, the said Mary Boyd, in the said dwelling-house, then and there did beat, wound, and ill-treat, with an intent her, the said Mary Boyd, being (248) a white female as aforesaid, violently, forcibly, and against her will, then and there, in the said dwelling-house being, feloniously and burglariously to ravish and carnally know, and other wrongs, etc., contrary to the form of the statute, etc."
Winston, Sr., for the State.
No counsel for prisoner.
There appears upon the record but one exception to the rulings of the judge below. After instructions upon the law of the case not complained of, the court was asked to inform the jury that, "although they were satisfied from the evidence the prisoner broke and entered into the dwelling-house in the night-time, with the intent to commit a rape on the person of the prosecutrix, yet if he afterwards desisted, on account of the resistance he met with, or through fear, or any other cause, the prisoner was not guilty."
The court declined to give the instructions thus asked, but told the jury, if they were satisfied from the evidence the prisoner broke and entered into the dwelling-house in the night-time with the intent to commit a rape on the prosecutrix, and afterwards, through resistance and fear, abandoned the intent, he was guilty. To this exception is taken.
We see no ground for a question either upon the propriety of refusing the specific instructions asked or upon the propriety of giving the instructions substituted therefor.
The definition of a burglar given by Sir Edward Coke is: "He that by night breaketh or entereth into a mansion house with intent to commit a felony."
A moment's consideration of the elements of this definition will show the groundless nature of this exception. It is apparently based upon the assumption that the felonious intent can only be made evident by its actual execution, which is a great mistake.
(249) This element of the offense may appear from circumstances happening antecedently to the act intended, and so appearing (other elements being conceded), the offense is consummated.
This view of the offense is supported by many adjudged cases and by the uniform practice; and accordingly we find a definition conforming thereto, adopted by East, Russell, and other text-writers, viz.: "a breaking and entering a mansion house of another in the night with intent to commit some felony within the same, whether such felonious intent be executed or not."
This meets in all respects the case now before us, and by express words disposes of the prisoner's exception.
The case informs us there was evidence as to the intent laid before the jury, and proper instructions in relation thereto given by the court. There is no error, therefore, in the instructions given, and those asked for were rightfully refused.
We have examined the whole record with the care which its importance demands, and find no defect or impediment to hinder the due course of the law.
PER CURIAM. No error.
Cited: S. v. McBryde, 97 N.C. 399.