State v. Allen , 297 N.C. 429 ( 1979 )

255 S.E.2d 362 (1979) 297 N.C. 429

STATE of North Carolina
v.
Daniel Kay ALLEN.

No. 42.

Supreme Court of North Carolina.

June 12, 1979.

Rufus L. Edmisten, Atty. Gen. by Isham B. Hudson, Jr., Asst. Atty. Gen., Raleigh, for the State.

Ray H. Walton and William F. Fairley, Southport, for defendant-appellant.

HUSKINS, Justice:

Defendant assigns as error the failure of the trial court to submit nonfelonious breaking or entering as a permissible verdict, thereby limiting the jury in its deliberations to either a verdict of guilty of first degree burglary or not guilty.

In the burglary case the bill of indictment charges that defendant broke and entered the occupied dwelling house of Regina Wells in the nighttime with intent to commit a felony therein, to wit: "with the unlawful, wilful and felonious intent to ravish and carnally know Regina Wells by force and against her will. . . ." Upon that charge the State is required to prove the intent to commit the felony designated in the indictment. State v. Wells, 290 N.C. 485, 226 S.E.2d 325 (1976); State v. Allen, 186 N.C. 302, 119 S.E. 504 (1923).

Defendant does not contend the evidence of such intent was insufficient to carry the case to the jury. Rather, he contends the evidence of intent to rape "was such that the jury should have been allowed to decide the presence or lack thereof and to have been given the option of convicting the appellant on a lesser offense which did not require the presence of such intent." Defendant therefore argues that the lesser included offense of nonfelonious breaking or entering should have been submitted.

Where it is permissible under the bill of indictment to convict the accused of a lesser degree of the crime charged, and there is evidence to support a milder verdict, defendant is entitled to have the different permissible verdicts arising on the evidence presented to the jury under proper instructions. State v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971). Unless there is evidence of guilt of the lesser degree, however, the court should not submit it. State v. Smith, 201 N.C. 494, 160 S.E. 577 (1931). If all the evidence tends to show that the crime charged in the bill of indictment was committed, and there is no evidence tending to show commission of a crime of lesser degree, the court correctly refuses to charge on the unsupported lesser degree and correctly refuses to submit lesser degrees of the crime charged as permissible verdicts. State v. Alston, 293 N.C. 553, 238 S.E.2d 505 (1977); State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972); 4 N.C. Index 3d, Criminal Law, § 115.

The crime of burglary is complete when one person breaks and enters the occupied dwelling of another, in the nighttime, with the requisite ulterior intent to commit the felony designated in the bill of indictment, even though, after entering the house, the accused abandons his intent through fear or because he is resisted. State v. Wells, supra; State v. Bell, 285 N.C. 746, 208 S.E.2d 506 (1974).

The record in this case is barren of any evidence of nonfelonious breaking or entering. The evidence for the State tends to show that the victim's assailant grabbed her around the mouth from behind and said: "I'm going to f___ you right now." She screamed and fought and tussled with her attacker for about five minutes during which he threatened to kill her, got her down on the floor, got down beside her, and tried to remove her clothing. In the struggle she received a battered lip and a knot on her neck. She continued to scream and her assailant apparently became frightened and ran out the door. Defendant's evidence tends to show alibi and a case of mistaken identity. Thus, the State's evidence strongly suggests the intent to rape which was later abandoned through fear because Miss Wells continued to scream and resist, while defendant's evidence tends to prove he was elsewhere and the crimes charged, if committed at all, were committed by someone else. There is no evidence of a nonfelonious breaking or entering. On the evidence of record defendant was guilty of the crimes charged in the bills of indictment or he was not guilty of any offense. State v. Alston, supra. Defendant's first assignment of error is overruled.

In the case charging assault with intent to commit rape, defendant contends the court erred in failing to submit, as a permissible verdict, the lesser included offense of assault on a female.

This assignment involves the same legal principles discussed with respect to the first assignment of error. It suffices to say that all of the evidence concerning the assault committed upon Miss Wells tends to show that the purpose of her assailant was to commit rape. His declaration when he initially grabbed her so indicates. His threat to kill her if she continued to scream so indicates. His struggle to disrobe her so indicates. "There is no evidence whatever tending to show that she was assaulted for any other purpose or for no purpose. Under these circumstances, it was not error to instruct the jury that they might return either a verdict of guilty of assault with intent to commit rape or a verdict of not guilty." State v. Roseman, 279 N.C. 573, 184 S.E.2d 289 (1971). Lesser included offenses must be submitted when, and only when, there is evidence to support them. State v. Watson, 283 N.C. 383, 196 S.E.2d 212 (1973).

State v. Banks, 295 N.C. 399, 245 S.E.2d 743 (1978), cited and relied on by defendant, is clearly distinguishable. There, some of the evidence tended to show that it was not defendant's intent to rape the victim but rather to gratify his passion in other ways. Hence, there was evidence sufficient to support a conviction of assault with intent to commit rape or a conviction of assault upon a female, depending upon defendant's intent at the time of the assault. This created a jury question.

For the reasons stated defendant's second assignment of error is overruled.

A careful review of the entire record reveals a fair trial free from prejudicial error. The verdicts and judgments must therefore be upheld.

NO ERROR.