State v. Gamble ( 1982 )

HILL, Judge.

The parties stipulated, and the trial judge found, the following facts concerning “the fenced-in area” in which defendants are alleged to have broken or entered:

[The area] is located at 3505 Camden Road in Fayetteville and is partially surrounded by a wire fence 5'10" to 6' tall. This fence runs along the north and eastern sides of the area in question and extends partly along the western and southern sides. In the southwestern corner of the area there is a metal building. The fence comes to within one or two inches of the northwestern and southwestern corners of this building, which defines the remainder of the western and southern sides of the area in question. Within this area are spaces for parking cars and trucks, stacks of wooden utility poles, what appear to be transformers and other items of electrical and industrial equipment. Camden Road, a paved road in Fayetteville, runs along the western border some distances from the area in question. The only sign upon the fence or building is the number “3505”.

This is a case of first impression in this State. The sole question for our review is whether a “fenced-in area” is a “building” within the meaning of G.S. 14-54, “[breaking or entering buildings generally.”

G.S. 14-54 reads as follows:

(a) Any person who breaks or enters any building with intent to commit any felony or larceny therein shall be punished as a Class H felon.

(b) Any person who, wrongfully breaks or enters any building is guilty of a misdemeanor and is punishable under G.S. 14-3(a).

(c) As used in this section, “building” shall be construed to include any dwelling, dwelling house, uninhabited house, building under construction, building within the curtilage of a dwelling house, and any other structure designed to house or secure within it any activity or property.

(Emphasis added.) Thus, we must decide if a “fenced-in area” is “any other structure designed to house or secure within it any activity or property.” Id.

Criminal statutes must be strictly construed. In re Banks, 295 N.C. 236, 244 S.E. 2d 386 (1978); State v. Ross, 272 N.C. 67, 157 S.E. 2d 712 (1967).

[W]hen a statute is ambiguous or unclear, in its meaning, resort must be had to judicial construction to ascertain the legislative will, State v. Humphries, 210 N.C. 406, 186 S.E. 473 (1936), and the courts will interpret the language to give effect to the legislative intent. Ikerd v. R.R., 209 N.C. 270, 183 S.E. 402 (1936). As this Court said in State v. Partlow, 91 N.C. 550 (1884), the legislative intent “. . . is to be ascertained by appropriate means and indicia, such as the purposes appearing from the statute taken as a whole, the phraseology, the words ordinary or technical, the law as it prevailed before the statute, the mischief to be remedied, the remedy, the end to be accomplished, statutes in pari materia, the preamble, the title, and other like means. . . .”

In re Banks, supra, at 239, 244 S.E. 2d at 389 (emphasis original). In the case sub judice, the State argues that “[t]he evolution of the present G.S. 14-54 clearly indicates the legislature’s intent to expand its protection to objects other than dwelling houses or buildings.” Defendant, on the other hand, contends that the general phrase “any other structure designed to house or secure within it any activity or property” must be restricted to “things of the same kind, character and nature as those specifically enumerated in 14-54(c)” under the doctrine of ejusdem generis. For the following reasons, we must agree with defendant and affirm the order.

“In the construction of statutes, the ejusdem generis rule is that where general words follow a designation of particular subjects or things, the meaning of the general words will ordinarily be presumed to be, and construed as, restricted by the particular designations and as including only things of the same kind, character and nature as those specifically enumerated.” State v. Fenner, 263 N.C. 694,697-98, 140 S.E. 2d 349, 352 (1965) (emphasis original). Accord, State v. Lee, 277 N.C. 242, 176 S.E. 2d 772 (1970).

“Building” commonly has been defined as

a constructed edifice designed to stand more or less permanently, covering a space of land, usu. covered by a roof and more or less completely enclosed by walls, and serving as a dwelling, storehouse, factory, shelter for animals, or other useful structure — distinguished from structures not designed for occupancy (as fences or monuments) . . ..

Webster’s Third New International Dictionary (1968 ed.) 292. The “particular designations” in the G.S. 14-54(c) definition of “building,” “dwelling, dwelling house, uninhabited house, building under construction, building within the curtilage of a dwelling house,” indicate that the legislature intended the statute to proscribe breaking or entering into that which conforms to the common definition. The statutes predating the present G.S. 14-54 also support this construction of its coverage, restricting the statute to that which has — or is intended to have — one or more walls and a roof.

The original 1875 statute proscribed breaking into “a storehouse where any merchandise or other personal property is kept, or any uninhabited house . . ..” 1874-75 N.C. Sess. Laws c. 166, § 1. By 1883, the statute made additional “particular designations,” including a “dwelling house’ and “any uninhabited house,” as follows: “a store-house, shop, ware-house, banking-house, counting-house, or other building, where any merchandise, chattel, money, valuable security, or other personal property shall be . . ..” 1 Code of North Carolina § 996 (1883). The statute remained essentially unchanged until 1969, when G.S. 14-54(c) appeared in its present form. See 1 Rev. of North Carolina § 3333 (1905); 1 Consol. Stat. of North Carolina § 4235 (1919); 1969 N.C. Sess. Laws, c. 543, § 3,

Thus, since the legislature always intended “building” to be restricted to that which has —or is intended to have — one or more walls and a roof, its common definition, the things covered by the general phrase in G.S. 14-54(c), “any other structure designed to house or secure within it any activity or property,” must be of a like nature, or ejusdem generis. Clearly, this definition of “building” and a “fenced-in area” are not ejusdem generis. Although a fence may have the charactertistics of a wall, it does not have a roof. A “fenced-in area” therefore is not a “building” within the meaning of G.S. 14-54. We do not construe the evolution of the statute to expand its coverage of buildings protected from breaking or entering to that which is not ejusdem generis, as the State would suggest.

The order of the trial judge allowing defendant’s motions to quash and dismiss the indictments is

Affirmed.

Judge BECTON concurs. Judge HEDRICK dissents.