State v. Bell , 285 N.C. 746 ( 1974 )

208 S.E.2d 506 (1974) 285 N.C. 746

STATE of North Carolina
v.
Johnas BELL.

No. 1.

Supreme Court of North Carolina.

October 10, 1974.

Robert Morgan, Atty. Gen., William W. Melvin, Asst. Atty. Gen., Raleigh, for the State of North Carolina.

John J. Schramm, Jr., Winston-Salem, for defendant appellant.

HUSKINS, Justice:

When this case was before us on a former appeal, State v. Bell, 284 N.C. 416, 200 S.E.2d 601 (1973), we awarded a new trial for failure to submit to the jury the lesser included offense of felonious breaking or entering. On retrial the jury was instructed to return either of the following verdicts: (1) Guilty of first degree burglary as charged in the bill of indictment; (2) guilty of non-burglarious breaking and entering with intent to commit a felony or other infamous crime; (3) guilty of non-burglarious breaking and entering without intent to commit a felony or other infamous crime; or (4) not guilty. The jury convicted defendant of first degree burglary and he again appeals to this Court.

The sole question presented on this appeal is whether the trial court erred in denying defendant's motion for nonsuit at the close of the State's evidence. Defendant contends the evidence is insufficient to show an intent to commit rape. He therefore argues the trial court erred in overruling his motion to nonsuit the charge of burglary in the first degree.

Burglary in the first degree is the breaking and entering in the nighttime of an occupied dwelling or sleeping apartment with intent to commit a felony therein. G.S. § 14-51; State v. Bell, supra; State v. Cox, 281 N.C. 131, 187 S.E.2d 785 (1972); State v. Mumford, 227 N.C. 132, 41 S.E.2d 201 (1947). The bill of indictment charges that during the night of 26 May 1971 defendant broke and entered the Julia Higgins Cottage occupied by Bonnie Louise Whicker and others "with the felonious intent to commit the crime of rape in said dwelling house upon the said Bonnie Louise Whicker. . . ."

A motion for judgment of nonsuit is properly denied if there is any competent evidence to support the allegations contained in the bill of indictment; and all the evidence which tends to sustain those allegations must be considered in the light most favorable to the State and the State is entitled to every reasonable inference to be drawn therefrom. State v. Reid, 230 N.C. 561, 53 S.E.2d 849, cert. denied, 338 U.S. 876, 70 S. Ct. 138, 94 L. Ed. 537 (1949); State v. Gentry, 228 N.C. 643, 46 S.E.2d 863, cert. denied, 335 U.S. 818, 69 S. Ct. 39, 93 L. Ed. 372 (1948).

Intent is a mental attitude seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred. State v. Arnold, 264 N.C. 348, 141 S.E.2d 473 (1965); State v. Gammons, 260 N.C. 753, 133 S.E.2d 649 (1963). "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. . . . 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. Tippett, 270 N.C. 588, 155 S.E.2d 269 (1967).

Here, the evidence tends to show that defendant entered the sleeping apartment of Bonnie Louise Whicker in the nighttime by cutting the window screen; that he got in bed with his intended victim, placed a hand over her mouth when he was discovered, threatened to cut her throat if either she or her sister screamed, and pulled up his outside pants and ran from the room when the other girls appeared and turned on the light. We think this evidence was sufficient to carry the case to the jury upon the allegations contained in the bill of indictment and to support the permissible inference that defendant intended to commit rape at the time he broke and entered the Julia Higgins Cottage. It was for the jury to determine, under all the circumstances, defendant's ulterior criminal intent. The motion for nonsuit was properly denied.

A careful perusal of the entire record impels the conclusion that defendant received a fair trial free from prejudicial error. Therefore the verdict and judgment must be upheld.

No error.

BOBBITT, C. J., not sitting.