State v. Brooks , 277 S.C. 111 ( 1981 )

Littlejohn and Ness, Justices:

This is an appeal by appellant Brooks challenging his burglary conviction. He alleges and we agree that the State failed to prove an essential element of the crime charged in the burglary indictment. We reverse.

Brooks was also charged and convicted of criminal sexual conduct and larceny. He does not contest these convictions.

The burglary indictment is framed substantially in the language of the common law. The parties concede that the common law definition is the breaking and entering the dwelling house of another in the nighttime with the intent to commit a felony therein.

Based on this definition the State must present evidence to support each element of the crime charged in order to uphold the conviction.

Brooks argues there was no evidence of a breaking and we agree. There is no evidence stating that the windows or doors were closed or how the appellant gained entry into the dwelling house. While it is ludicrous to assume appellant was invited to enter the residence and commit this crime upon an unsuspecting victim, the law of this State requires some proof of a “breaking.” State v. Nicholson, et al., 221 S. C. 399, 404, 70 S. E. (2d) 632 (1952); State v. Clamp, 225 S. C. 89, 80 S. E. (2d) 918 (1954). The burglary conviction must be reversed on this basis.

Next Brooks alleges the indictment was insufficient on its face because it did not specify the felony which he intended to commit.

The common law requires as an ingredient of burglary “intent to commit a felony.” Today the “felony” requisite serves no real purpose.

Burglary is a crime against possession, not against property. State v. Clamp, supra. The law of burglary is primarily designed to secure the sanctity of one’s home, especially at nighttime when peace, solitude and safety are most desired and expected.

“The common-law conception of burglary was that it was primarily an offense against the security of the habitation. It was stated at an early date that a man’s house is his castle and its security must not be lightly invaded. To preserve this security and this sanctity the law created safeguards and imposed severe penalties on their infringement.” 13 Am. Jur. (2d), Burglary, § 2.

Thus, at the heart of burglary law is protection of the individual and family from unlawful intrusion while home at night.

The difference between a felony and a misdemeanor for most purposes has no significance. Some felonies provide less punishment than do some misdemeanors. In some states the two are not clearly defined.

Burglary calls for harsh punishment because it involves an intrusion in the nighttime of a place where people sleep. It is no less obnoxious that one wrongfully break and enter a sleeping place with intent to steal a $195 watch which is petit larceny, a misdemeanor, than with intent to steal a $205 watch which is grand larceny, a felony.¹

Based on these principles and this Court’s authority to modify the common law in certain circumstances,² we no longer require as an ingredient of burglary, “intent to commit a felony.”

Any indictment hereafter which charges one with breaking and entering the dwelling of another in the nighttime with intent to commit any crime, a felony or a misdemeanor, is sufficient.

No further exceptions need be considered since the conviction has been reversed for lack of evidence.

Reversed.

Gregory and Harwell, JJ., concur. Lewis, C. J., dissents.

1 Act No. 76 of the General Assembly, approved May 21, 1981, amended Section 16-13-30 of the 1976 Code. Now, any simple larceny of goods of the value of less than two hundred dollars (formerly fifty dollars) is a misdemeanor and considered petit larceny.

2 See 15A Am. Jur. 2d, Common Law, § 16; State v. Clamp, supra; State v. Sampson, et al., 12 S. C. 567 (1879).