State v. Cook , 242 N.C. 700 ( 1955 )

89 S.E.2d 383 (1955) 242 N.C. 700

STATE
v.
Donald G. COOK.

No. 146.

Supreme Court of North Carolina.

October 12, 1955.

Childers & Johnston, Gastonia, for defendant-appellant.

Atty. Gen. Wm. B. Rodman, Jr., and Asst. Atty. Gen. Claude L. Love, for the State.

DENNY, Justice.

The offense described in the first part of G.S. § 14-54, contains the following essential elements: (1) an unlawful breaking or entering (2) of the dwelling house of another (3) with the intent to commit a felony or other infamous crime therein.

We concur in the State's contention to the effect that its evidence tends to show both an unlawful breaking or entry by trespass of the sleeping quarters of one or more nurses in the North Carolina Orthopedic Hospital. Even so, the only question for determination is whether or not the evidence adduced in the trial below was sufficient to carry the case to the jury on the question of an intent to commit the crime charged in the bill of indictment.

In order to convict a defendant under G.S. § 14-54, of a felony or other infamous crime, it is necessary to show that the breaking or entering the dwelling or other building described in the statute, was done "with intent to commit a felony or other infamous crime therein". State v. Spear, 164 N.C. 452, 79 S.E. 869; State v. Crisp, 188 N.C. 799, 125 S.E. 543; State v. Friddle, 223 N.C. 258, 25 S.E.2d 751. However, Chapter 1015 of the 1955 Session Laws of North Carolina, which became effective on the 17th day of May, 1955, amended G.S. § 14-54 by adding at the end thereof the following: "``Where such breaking or entering shall be wrongfully done without intent to commit a felony or other infamous crime, he shall be guilty of a misdemeanor.'" But, the provisions contained in this amendment are not applicable to this case since they were enacted after the conduct complained of occurred.

It is true that some of our cases are to the effect that where a defendant enters a dwelling in the nighttime, he having no right to be there, and flees when discovered, without making any explanation of his presence or of his intent, the jury may infer an intent to steal although no theft was actually committed. State v. McBryde, 97 N.C. 393, 1 S.E. 925; State v. Spear, supra; State v. Hargett, 196 N.C. 692, 146 S.E. 801; State v. Oakley, 210 N.C. 206, 186 S.E. 244.

In the instant case, however, the defendant did not flee when he was discovered, but upon inquiry as to what he wanted, he inquired about Joyce, a girl who worked at the hospital and who had gone home for the week-end. Her room was located near that of Miss Wiggins. Nothing was taken, and when the defendant was requested to leave, "he tip-toed out of the room and went down the hall and went down the stairs."

We know of no decision of this Court upholding a conviction under G.S. § 14-54 for larceny, where all the State's evidence tended to negative the intent to commit the crime charged, as it does here.

As reprehensible as the conduct of the defendant was, we do not think the evidence of the State is sufficient to support a conviction of the crime charged. Hence, the defendant's motion for judgment as of nonsuit will be sustained.

Reversed.

WINBORNE and HIGGINS, JJ., took no part in the consideration or decision of this case.