State v. Tippett , 270 N.C. 588 ( 1967 )

155 S.E.2d 269 (1967) 270 N.C. 588

STATE of North Carolina
v.
Edward Keith TIPPETT.

No. 744.

Supreme Court of North Carolina.

June 20, 1967.

Atty. Gen. T. W. Bruton, Staff Atty. Wilson B. Partin, Jr., and Staff Atty. Ralph White, Jr., Raleigh, for the State.

Arthur Vann, Durham, for defendant appellant.

LAKE, Justice.

The motion for judgment of nonsuit was properly overruled. The evidence is ample to support a finding of each element of the crime of burglary, these being the breaking and entering in the nighttime of the dwelling house or sleeping apartment of another with the intent to commit therein a felony, which felony must be specified in the bill of indictment. State v. Surles, 230 N.C. 272, 52 S.E.2d 880; State v. Whit, 49 N.C. 349.

To show a breaking it is not required that the State offer evidence of damage to a door or window, it being sufficient to show a mere pushing or pulling open of an unlocked door or the raising or lowering of an unlocked window, State v. McAfee, 247 N.C. 98, 100 S.E.2d 249, or the opening of a locked door with a key. State v. Knight, 261 N.C. 17, 134 S.E.2d 101.

The intent with which an accused broke and entered may be found by the jury from evidence as to what he did within the house. State v. Reid, 230 N.C. 561, 53 S.E.2d 849. However, the fact that a felony was actually committed after the house was entered is not necessarily proof of the intent requisite for the crime of burglary. It is only evidence from which such intent at the time of the breaking and entering may be found. Conversely, actual commission of the felony, which the indictment charges was intended by the defendant at the time of the breaking and entering, is not required in order to sustain a conviction of burglary. State v. Reid, supra; State v. Hooper, 227 N.C. 633, 44 S.E.2d 42; State v. McDaniel, 60 N.C. 245. The offense of burglary is the breaking and entering with the requisite intent. It is complete when the building is entered or it does not occur. A breaking and an entry without the intent to commit a felony in the building is not converted into burglary by the subsequent commission therein of a felony subsequently conceived. State v. Allen, 186 N.C. 302, 119 S.E. 504.

The indictment in the present case charges that the breaking and entering was with the intent to commit both the felony of larceny and the felony of rape within the Patton dwelling house. Proof of the intent to do either of these felonious acts within the house is sufficient to show this element of the crime of burglary. The evidence is ample to support the finding that the intruder committed larceny of money and beer from the Patton residence and, while therein, assaulted Mrs. Patton with the intent to commit the crime of rape. In the absence of contrary evidence, this is sufficient to support a finding that at the time of the breaking and entering, the intruder had the intent to commit one or both of these felonies within the dwelling. State v. Boon, 35 N.C. 244.

The defendant has stipulated that the keys found upon the floor of the Patton home immediately after the intruder had fled therefrom were his. This alone is sufficient to support a finding that the defendant was the intruder. In order to establish that the breaking and entry occurred in the nighttime, it is not essential that the actual entry be observed by a witness, it being sufficient, in the absence of evidence to the contrary, that his presence in the building was first discovered during the hours of darkness. See State v. McKnight, 111 N.C. 690, 16 S.E. 319. It is inconceivable that the entry in this instance occurred prior to the dinner party in this relatively small residence.

If the burglary occurred—i. e., the breaking and entry occurred—while the dwelling house was actually occupied, that is, while some person other than the intruder was in the house, the crime is burglary in the first degree. If the house was then unoccupied, however momentarily, and whether known to the intruder or not, the offense is burglary in the second degree. Otherwise, the elements of the two offenses are identical. G.S. § 14-5. This Court has held that where all the evidence is to the effect that the building was actually occupied at the time of the breaking and entry, the court is not authorized to instruct the jury that it may return a verdict of burglary in the second degree. State v. McAfee, supra; State v. Morris, 215 N.C. 552, 2 S.E.2d 554; State v. Ratcliff, 199 N.C. 9, 153 S.E. 605. G.S. § 15-171 formerly authorized such instruction but was repealed by Session Laws of 1953, c. 100.

In the present case, the evidence is that the house was unoccupied for approximately half an hour immediately before Mr. and Mrs. Patton returned to it and retired for the night without going into the third bedroom of the house. Upon this evidence, there was no error in instructing the jury that if it did not find from the evidence, beyond a reasonable doubt, that the house was occupied at the time of the breaking and entering, it should find the defendant not guilty of burglary in the first degree, but it should return a verdict of burglary in the second degree if it did so find each of the elements thereof—breaking and entering the Patton dwelling house in the nighttime with the intent, at the time thereof, to commit therein one or both of the felonies specified in the indictment. The court so instructed the jury and the jury so found.

There was no error in admitting in evidence the two cans of beer and the Amphetamine tablets found in the defendant's pockets. The police officer who searched the defendant had been informed of the felony committed at the Patton residence and that a barefooted white man, wearing coveralls, was suspected to have been the perpetrator of it. He was looking for such a man. At about 3 a. m., he found the defendant, who answered the description, hiding behind a bush two blocks from the scene of the crime. Under these circumstances, it was lawful for him to arrest the defendant without a warrant. G.S. § 15-41(2); State v. Grier, 268 N.C. 296, 150 S.E.2d 443; State v. Grant, 248 N.C. 341, 103 S.E.2d 339; State v. Fowler, 172 N.C. 905, 90 S.E. 408; Strong, N.C. Digest 2d, Arrest and Bail, § 3. Police officers may search the person of a prisoner lawfully arrested as an incident to such arrest. State v. Bell, 270 N.C. 25, 153 S.E.2d 741; State v. Haney, 263 N.C. 816, 140 S.E.2d 544. The officer may lawfully take from the prisoner any property which he has about him which is connected with the crime charged or which may be required as evidence. State v. Ragland, 227 N.C. 162, 41 S.E.2d 285; State v. Graham, 74 N.C. 646. If otherwise competent, such article may be introduced in evidence by the State.

A formal declaration of arrest by the officer is not a prerequisite to the making of an arrest. 5 Am.Jur.2d, Arrest, § 1. The officer's testimony that the defendant was or was not under arrest at a given time is not conclusive. In Henry v. United States, 361 U.S. 98, 80 S. Ct. 168, 4 L. Ed. 2d 134, it was said that an arrest was complete when federal officers, without a warrant, stopped an automobile, "interrupted" the two men therein and "restricted their liberty of movement." Here, the defendant was "told" by the officer who accosted him in his hiding place to get into the police car, and was "advised" by the officer to take his hands out of his pockets. The search of his person followed these communications.

In any event, the officer who made the search immediately transported the defendant to the scene of the crime, two blocks away, and there the defendant was formally told that he was under arrest. In State v. Bell, supra, we sustained as "incidental to the arrest" a search of an automobile made prior to the formal statement of arrest on the ground that "the search and seizure were so closely related in time and circumstance to the arrest as to make the search and seizure reasonable." The Courts of Appeal for the Sixth and Seventh Circuits have held that a search immediately preceding the formal statement of arrest does not violate the Fourteenth Amendment to the Constitution of the United States, now said by the Supreme Court of the United States to include the provisions of the Fourth. United States v. Lucas, 6 Cir., 360 F.2d 937; Holt v. Simpson, 340 F.2d 853. We so hold under the circumstances of the present case. In United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L. Ed. 653, the Court said, "Where one had been placed in the custody of the law by valid action of officers, it was not unreasonable to search him."

There was no violation of the defendant's rights in requiring him, while in custody under a valid arrest upon the charge in this case, to change his clothing and in taking from him the clothing which he wore at the time of his arrest immediately after the alleged offense. There was no error in permitting the State to introduce in evidence the shirt so taken from the defendant and the hair found thereon. State v. Ross, 269 N.C. 739, 153 S.E.2d 469; State v. Ragland, supra; State v. Graham, supra; 5 Am.Jur.2d, Arrest, § 73, 47 Am.Jur. Searches and Seizures, § 53; 6 C.J.S. Arrest § 18.

The defendant's motion that the indictment in this case be consolidated for trial with an indictment said to be pending against him for the offense of rape on this occasion was directed to the discretion of the trial court. State v. Combs, 200 N.C. 671, 158 S.E. 252. There was no error in its denial.

The denial of this motion for consolidation does not afford any basis for granting the defendant's motion to strike from the indictment for burglary the allegation that the breaking and entering was with the intent to commit rape. We are not here concerned with the indictment for rape. This allegation was proper in the present indictment for burglary whether or not the intended offense of rape was actually committed.

There was no error in sustaining objections to questions propounded by defendant's counsel on cross examination of a witness for the State, these questions being designed to elicit from the witness statements made to him by the defendant. The record does not show what the witness would have said had he been permitted to answer. The State offered no evidence of any statement by the defendant. The defendant offered no evidence whatever. The proposed cross examination could not, therefore, have been competent for the purpose of corroboration of the defendant or impeachment of any witness for the State. Self serving declarations by the defendant offered for any other purpose would obviously be incompetent as hearsay evidence. The court's ruling upon these objections could not possibly be deemed expressions of opinion concerning the defendant's credibility as he contends in his brief.

The defendant's motion for a mistrial, made while the jury was deliberating upon its verdict, for the reason that the morning newspaper contained a story referring to another charge pending against this defendant in Wake County was properly denied. The defendant's counsel quite properly called this newspaper story to the attention of the presiding judge, stating, at the same time, that he had no basis whatever for believing that any juror had seen the newspaper containing the story. The jury had been locked up each night during the trial under the custody of an officer. The court examined this officer, and his testimony was such as to indicate that there was virtually no possibility that any copy of the newspaper had been seen by any member of the jury. At the time the first juror was selected, and repeatedly throughout the trial, the presiding judge clearly and explicitly instructed the jury that they were not to read any newspaper accounts, or listen to television or radio comments concerning the case or otherwise permit any discussion of it with them by any other person. There is nothing to suggest that these instructions were not complied with by the jurors.

No useful purpose would be served by discussing the remaining assignments of error in detail. We have considered them carefully and find no merit in any of them. The charge of the court to the jury was full, accurate and impartial. It met the requirements of G.S. § 1-180.

No error.