State v. Clinton , 3 N.C. App. 571 ( 1969 )

MoRRis, J.

The defendant first assigns as error the failure of the court to grant his motion for nonsuit. This presents the issue of whether there is any competent evidence to support the allegations of the crime charged, considering the evidence in the light most favorable to the State, and giving it the benefit of every reasonable inference fairly deducible therefrom. 2 Strong, N. C. Index 2d, Criminal Law, § 106, p. 654. Judged by this criterion, the assignment of error is overruled.

The evidence was that the keys had been in the pocket of a pair of pants, that the pants had been moved, and that the pockets had been emptied. Since the doors were closed, it is a reasonable inference that someone broke and entered the room of the prosecuting witness and had obtained the keys. The evidence was that the defendant was seen in the car of the prosecuting witness, and the motor was running. The car had been left locked. The jury could reasonably infer that the defendant had obtained the keys in. order to unlock the car and start the motor. In addition, the defendant had twice entered the room of the prosecuting witness, without knocking, and at a time when the prosecuting witness had retired for the night. Moreover, the defendant fled when confronted by the prosecuting witness. Though this evidence is circumstantial, the test, on motion for nonsuit, is the same as for substantive evidence. State v. Tillman, 269 N.C. 276, 152 S.E. 2d 159.

The conclusion that there is sufficient identification of the defendant as the perpetrator of the crime is supported by the cases of State v. Mullinax, 263 N.C. 512, 139 S.E. 2d 639; State v. Knight, 261 N.C. 17, 134 S.E. 2d 101; and State v. Peters, 253 N.C. 331, 116 S.E. 2d 787. See also State v. Bailiff, 2 N.C. App. 608, 163 S.E. 2d 398. (Larceny).

The defendant contends that a room in a rooming house is not included in the meaning of the term “dwelling house”. The cases do not support this contention. “Every permanent building in which the owner or renter and his family, or any member thereof, usually and habitually dwell and sleep is deemed a dwelling in which this crime may be committed.” State v. Jake, 60 N.C. 471 (a burglary case). State v. Langford, 12 N.C. 253, indicates that a dwelling house is the place wherein a man reposes. This is approved in State v. Jenkins, 50 N.C. 430. It is undisputed that the room in the case at hand was used for sleeping; thus, it appears to meet the test of a “dwelling house”.

Defendant contends that certain inadmissible evidence was allowed by the trial court. Luby Edgar Smith was permitted to testify that Mrs. Welborn had told him the defendant was in his car “fixing to drive off”. Mrs. Welborn was permitted to testify that defendant was in the car “locked up and ready to go”. The record before us does not show that an objection was made to the questions which produced these answers. Following the answers of the witnesses, the defendant moved to strike in each instance, but he did not specify the reason for these motions. The evidence was properly admitted. Smith’s testimony was corroborative of Mrs. Welborn whose testimony was proper as a “shorthand statement of the facts”, Stansbury, N. C. Evidence 2d, § 125; Strong’s N. C. Index 2d, Evidence, § 42; therefore, the motions to strike, made in a general manner, were properly overruled.

Defendant contends that the lower court did not adequately explain the proper weight to be given circumstantial evidence. It would appear that this point was adequately covered. The judge clearly set out the elements of the offense charged and in terms easily understood by a jury. Therefore, the exception on this point seems to be without merit.

Finally, defendant objected to the failure of the court to submit an issue of non-felonious breaking and entering. The evidence pointed only to breaking and entering with intent to commit larceny. The court is not required to submit to the jury a lesser included offense when there is no evidence from which the jury could find that such included crime of lesser degree was committed. State v. Hicks, 241 N.C. 156, 84 S.E. 2d 545; State v. LeGrande, 1 N.C. App. 25, 159 S.E. 2d 265; State v. Martin, 2 N.C. App. 148, 162 S.E. 2d 667.

Affirmed.

Mallard, C.J., and Campbell, J., concur.