State v. Carroll

178 S.E.2d 10 (1970) 10 N.C. App. 143

STATE of North Carolina
v.
Thomas Elvert CARROLL.

No. 7027SC594.

Court of Appeals of North Carolina.

December 16, 1970.

Atty. Gen. Robert Morgan, by Asst. Atty. Gen. R. S. Weathers, for the State.

Robert L. Bradley, Garland, Alala, Bradley & Gray, Gastonia, for defendant appellant.

VAUGHN, Judge.

The defendant contends that the bill of indictment is fatally defective because it does not properly identify the premises the defendant was alleged to have feloniously broken and entered. The question is properly presented by defendant's motion to quash in the trial court and his motion of arrest of judgment which was filed in this Court. This is the only question raised on appeal.

Under G.S. § 14-54 as re-written by Chapter 543 of the Session Laws of 1969, the breaking or entering of any building with intent to commit a felony or larceny therein constitutes a felony. Thus the necessity for describing the building in the bill of indictment for the purpose of showing that it is within the statute no longer exists. It remains necessary, however, to identify the building with reasonable particularity so as to enable the defendant to prepare his defense and plead his conviction or acquittal as a bar to further prosecution for the same offense. It would be contrary to reason to suggest that the defendant could have, in the preparation of his defense, thought that the building referred to in the indictment as "occupied by one Duke Power Company" was one other than the building occupied by Duke Power Company in which he was arrested on the date alleged in the bill. The bill also describes the crime alleged in such detail as would enable the defendant to plead his conviction or acquittal thereof as a bar to another prosecution for the same offense. In State v. Sellers, 273 N.C. 641, 161 S.E.2d 15, the building broken into was described in the bill only as one "occupied by one Leesona Corporation, a corporation." Although the description was held to be sufficient, the Supreme Court, as we do in the present case, quoted with approval the following language from State v. Burgess, 1 N.C.App. 142, 160 S.E.2d 105.

"* * * In the light of the growth in population and in the number of structures (domestic, business and governmental), the prosecuting officers of this State would be well advised to identify the subject premises by street address, highway address, rural road address or some clear description and designation to set the subject premises apart from like and other structures described in G.S. Chap. 14, Art. 14."

No error.

BROCK and MORRIS, JJ., concur.