
    STATE v. FOSTER.
    (Filed December 23, 1901.)
    
      BURGLARY — First Degree — Acts J.8S9, Gh. J/áJ/.
    
    Under iicts 1889, Ch. 434, creating two degree's in burglary, person may be convicted of burglary in the first degree for breaking into a storehouse where there is a bed-room attached, and in which one regularly sleeps, and is sleeping at the time, and there is a breaking and entering into the bed-room.
    INDICTMUNT against Ben Foster, R. S. Gates, Harry Mills and Franls Johnston, beard by Judge Frederick Moore and a jury, at June (Special) Term, 1901,. of tire Superior Cburt of BüNCOMbj? County. From a verdict of guilty and judgment thereon, the defendants appealed.
    
      Broten Shepherd; for Robert D. Gilmer, Attorney-General, and Frank Garter, for the State.
    
      Thomas Settle and M. W. Brown, for the defendants.
   FunciiES, O. J.

The defendants are indicted and convicted of burglary in the first degree. The facts are substantially as follows: D. J. McClelland is thei owner of a store at a place called “Emma,” a few miles from the, city of Ashe-ville, in the county of Buncombe. Samuel IT. Alexander is his clerk, and had been for more 'than three years boarding in the family of McClelland and sleeping in the store. There was a room in said store building, fitted up and furnished with a bed and other furniture as a sleeping apartment, in which said Alexander kept his trunk and other belongings, and slept there, and had done so regularly for three years or more. On the night of the 8th of February, 1901, he closed and fastened all the windows and outer doors of said store building, and between eight anid nine o’clock be went into' bis bed-room, but, thinking some customer might come, and not being ready to retire, he left a lamp burning in the storeroom. There was a partition wall between his sleeping-room and the store-room, in which there was a doorway and a shutter, but the shutter was rarely ever closed and was not closed that night. Soon after he-went into his sleeping room, he heard a noise at one of the: outer doors of the store building, and, thinking it was some one wanting to- trade, he went to the door and asked who. was there, when some onei answered that we wanted to come in, wanted some coffee and flour. Hp then took down the bar used in securing the door, unlocked the same, and when he had opened the door about twelve inches, still having the knob in his hand, two- men forced the door open, rushed in the house, covered him with pistols, told Mm to hold up his hands, that they had come for business. With the pistols still drawn upon him-, they marched Mm into his bed-room, -where they searched Mm. and the things he had in the room, taking his- pistol and other things. They then carried him into the store-room and made an effort to break into- the postoffice -department, there being a postoffice kep-t there. Rut not succeeding readily in getting into- this, they abandoned it for the present, saying they supposed there was nothing in it, except postage stamps, and they would at-' tend to them later. They then turned their attention to an iron safe and compelled him to assist in opening, it, one of them still holding his pistol on him. After the safe was open and one o-f them going through it, taking what money and other valuables he found, a cat made a noise in the back paid o-f the store, and the man with the pistol bearing on him turned Ms attention to- that; and, as he did so-, Alexander seized his own pistol they had taken from Ms room and which the man who was robbing the safe had laid on the end of the counter, and shot the man robbing the safe, and also shot the other man, but, in the meantime, the man whose attention had been attracted by the cat shot Alexander. They were all ■badly shot, but none of them died.

We have made this summary from thei testimony of Alexander, who was the only witness examined as to' the facts, neither of the prisoners going upon the witness stand, and there being no other witness to the transaction. There were two other persons, Henry Mills and R. S. Gates, indicted as being present, aiding and abetting in committing the crime, and tried at the same time with. Ren Poster anid Prank Johnston, who were charged as principals. They were all convicted of burglary in the first degree, and the sentence of death being pronounced upon them, they all appealed to this Court.

There are several exceptions, but all of them that seem to require discussion resolve themselves into one question, and that is the only question pressed upon the argument in this Court. Indeed, the learned counsel for the prisoners stated in his argument that the case turned upon this one point. That is this: That under Chapter 43-1, Laws of 1889, changing the law and establishing-two degrees in thei crime of burglary, a party can not be convicted of burglary in the first degree for breaking into a store-house where there is a bed-room, and one regularly sleeps there, unless there is a breaking and entering into' the bed-room. This is an important question, and it is singular that it has not before been pressed or called to> the attention of the Court. The case of State v. Pearson, 119 N. C., 871, was called to our attention by the State, but it does not seem to' be authority upon the point discussed in this case. Therefore, no case was cited, and we are unable to' find any that decides, or even discusses, thei point made in this case, and it devolves upon us to construe this statute.

Burglary at common law was the breaking and entering a dwelling-house in the night' time with a felonious intent. And this was the law of burglary in. this State until the passage of the Act of 1889. In this definition were included houses used as a part of the dwelling, such, as smoke-houses and pantries within the curtilage.. It was not the fact alone that they were within the curtilage that made it burglary to break into' and enter’ them, but it was the fact that they were used as a part of the dwelling, as -well as being -within the curtilage. A store-house or a workshop, though within the curtilage, were not s uch houses as would make one guilty of burglary to break and enter at night with a felonious intent. State v. Jenkins, 50 N. C., 430; State v. Langford, 12 N. C., 253. Indeed, to' break and enter a store-house, in which no> one slept, with intent to steal, was not a criminal offense at common law, nor in this State until made so' by statute. State v. Dozier, 73 N. C., 117. But it was held in England and in this State that a store-house, or any other house in which one regularly slept, was a dwelling-house, and one upon which burglary might.be committed. State v. Williams, 90 N. C., 724; State v. Outlaw, 72 N. C., 598. It is thus seen that it is not the fact that it is a store-house that makes it a house in which burglary may be committed; but it is the fact that some one regularly or habitually sleeps there, that makes it a dwelling-house. And the law was the same as to' any other house in which one regularly or habitually slept. This discussion of the law of burglary in England and in this State prior to. the Act of 1889, was necessary to enable us to put a construction upon that act.

It is an act to “change the law in relation to- the crime of burglary.” It divides the crime into' two degrees, first and second. The first is punished with death and the second degree with imprisonment in the penitentiary for life, or a less term, at the discretion of the Court. The first degree is where the crime is committed “in a dwelling-house, or in a room used as a sleeping apartment in any building, and any person is in tire actual occupation of any .part of said dwelling-, bouse or sleeping apartment at the time of tbe commission of said crime, it shall be burglary in tibe first degree:”

“Second. If tire said crime be committed in a dwelling-house or sleeping apartment not actually occupied by anyone at the time of the commission of tbe crime, or if it be committed in ány bouse within tbe curtilage of a dwelling-house, or in any building not a dwelling-house, but in which there is a room used as a sleeping apartment and not actually occupied as such at the time of the commission of said crime, it shall he burglary in. the second degree.”

The object of the statute must be taken into' consideration and both sections must he construed together, in construing the Act of 1889. It is manifest that the object of the Legislature was to modify the law of burglary as it then existed, and reduce the severity of its execution. At common law, it was not necessary that anyone should be in tbe dwelling-house at the time tbe crime was committed. 4 Obitty Blackstone, star page 225. And this was the law in this State; and the penalty was death, until the passage of the Act of 1889. Under that act, which is the law now, to constitute burglary in the first degree and make it a capital offense it is necessary that some one should be in a dwelling-house wben tire crime is committed, and, if there is not, the crime is burglary in tbe second degree, which is not punished with death; also; at common law, and in this State, until the Act of 1889, buildings within the curtilage and used in connection with the dwelling-house were held to be a part of the dwelling-house, and the crime committed in. one of them, was burglary and the punishment death. But under the Act of 1889, to. break, enter, etc., such a house is burglary in the second degree and the punishment imprisonment. Under the common law and the law of this State until the Act of 1889, to commit the crime in a store-house or other house where there was a sleeping apartment, regularly or usually occupied as such, it was burglary, and the punishment was death. This was not so because it was a store-house or other house, but because it was held to be a divelling-house, and the punishment was death. But under the Act of 1889, to make the offense burglary in the first degree and punishable with death, a breaking and entry into a storehouse or other house where one regularly or usually sleeps, does not constitute burglary in the first degree, unless the burglar breaks and enters the sleeping apartment. A store-house stands precisely upon the same ground as any other house where there is a sleeping apartment, in which the crime of burglary might ha,ye been committed before the Act of 1889, and must be given the same meaning,.

We are forced to this construction in.order to give any meaning to that part of the statute which says, to constitute the crime of burglary in tire first degree, it must’be “in a room used as a sleeping apartment in any buMding, and any person is in the actual occupation of said dwelling-house or sleeping apartment at the time of the commission of said crime, it shall be burglary in the first degree.” Were we not to give the Act of 1889 this construction, it would leave the law of burglary the same as to store-houses and other houses having a sleeping apartment where one regularly or usually slept, just as it was before the Act of 1889. This we are not justified in doing. And the second section provides: “If the said crime be committed in * * * a sleeping apartment not actually occupied by anyone at the time of the commission of the crime, * * * it shall be burglary in the second degree.” It is, therefore, seen that the statute malees it necessary that the sleeping apartment should be actually occupied by some one at the time the offense is committed, or the crime is burglary in the second degree; and thereby clearly showing that such buildings, as store-houses and other houses in which there is a sleeping' apartment, are no longer regarded as dwelling-houses, as there is a olear distinction made between them and dwelling-houses. In dwelling-houses, the breaking and entry is burglary in the first degree, if anyone is in any part of the house at the time. In other houses, where there is a sleeping apartment, the sleeping apartment must be broken in and entered, and must be actually occupied.

The question then comes to' the facts of this case to determine whether the prisoners are guilty of burglary in the first degree. There was a regular sleeping apartment which had been occupied by the clerk, Alexander, for three years, and he was actually present in his sleeping apartment when the bui’g-larious assault was made. The outer door and windows were securely fastened, and the door to his room, his sleeping apartment, was open. The prisoners by trick and fraud procured him to unfasten the door, when they forced their way into' the house against his heroic efforts to prevent them. Upon their gaining an entrance in this way, they covered him with pistols, made him throw up his hands, and marched him into' his sleeping apartment, and there, in his presence, they went through his desk and other things, taking his pistol, purse and other property. They them marched him into the store-room at the muzzle of their pistols, where the tragedy related above was enacted. Everything necessary to constitute the crime of burglary in the first degree, under the statute of 1889, is present and pronounced in this case, if there was a breaking into the sleeping apartment. And this is where, if we understand, the prisoners rest their defence. This can not avail them. If the door to the sleeping apartment had been closed and fastened, and they had not broken and entered into it, it may be their defence would have availed them. But as this door was not closed (and the evidence is that it rarely ever was), the outer doors and windows were his reliance and protection. Tbey were tbe doors to his sleeping apartment, and gave him tbe protection of tbe law.

We also* bold tbat Alexander’s being carried into- bis sleeping apartment by force, and under tbe influence of a loaded pistol bearing upon bim, was a breaking — a constructive breaking — as we do- not understand tbat tbe statute of 1889 makes any change in tbe law as to tbe mode of breaking. Mills and Gates were charged with aiding and abetting, and were convicted. We have examined their exceptions with care and do not think tbey can be sustained. So far as we can see, tbey have bad a fair trial.

As we see no error, tbe judgment of tbe Court below is

Affirmed.

Douglas, J.,

concurring in part. I concur, in the opinion except in so far as it relates to tbe defendants Mills and Gates. It appears from the evidence tbat Alexander’s bed-room was not in tbe main store building, but was in one end of an annex thereto, with a door leading into tbe other part of the annex, and a door from there leading into tbe main store-room. There was no opening direct from tbe bed-room into tbe store-room, which could be reached only by going through tbe other part of tbe annex. Both these doors were open, and in fact were rarely shut. I think tbat tbe defendants Foster and Johnston are guilty of burglary in the first degree in view of their entering Alexander’s bed-room in the manner tbey did. This seems to- me to'amount, to a constructive breaking, certainly more so than merely raising a latch or breaking a pane of glass for tbe mere purpose of reaching something through tbe window. On the¡ other band, even in the view taken by tbe majority of the Court, if there bad been no communication at all between tbe bed-room and the store-room, or if tbe inner door bad been fastened, merely entering the store-room would not have been burglary, but would have been breaking and entering a store-house, punishable under section. 996 of The Code. The defendants Foster and Johnston, were guilty of two crimes, store-breaking and burglary, the latter being in addition to the former and not necessarily dependent upon it. Here comes the point upon which I differ with the Court. I can not recall any evidence connecting Mills anid Gates with any crime except breaking into the store. They do not appear to have had anything to do with the murderous assault upon Alexander, or entering his bed-room. Suppose that Alexander had been securely locked up in Ms bed-room, and that Foster and Johnston, without disturbing him in any way, had merely broken into the store and stolen a piece of meat, would they have been guilty of burglary ? If they had not been guilty, those waiting outside could not have been guilty. Can we make aiders and abettors of one crime constructively guilty of another and distinct crime not within the contemplation of their original act ? We must carefully distinguish between the essential and the accidental facts of a case. The defendants. Mills and Gates were guilty as accomplices' in the crime of store-breaking, but I have very grave doubts whether they can be held guilty iu law of burglary, and sucb doubts I must resolve iu favor of human life.

There: are peculiar circumstances in this case which may tend to swerve our judgment. We are naturally indignant at the outrageous assault upon Alexander, whose splendid courage and manly devotion to duty command our admiration and respect; but vu should not let our feelings, blind our judgment. Those who committed the assault will pay. the penalty of their lives, but those who had nothing to do with it, and who. probably never contemplated any crime greater than that of theft, should be punished only for the offense of which they are guilty. If they are accessories before the fact to the burglary, and they were certainly not present when the bedroom was entered, then they are punishable under section 980 of Tbe Code, which provides that, “Any person whto shall be convicted as an accessory before the fact in either of the crimes of murder, arson, burglary or rape, shall be imprisoned for life in the penitentiary.”  