2 N.C. App. 194 | N.C. Ct. App. | 1968
The State’s evidence was amply sufficient to submit to the jury the issue of defendant’s guilt of the crime with which he was charged. There was direct eyewitness testimony from which the jury could find defendant guilty of all elements of the crime of breaking and entering with intent to commit a felony. There was, therefore, no error in overruling defendant’s motions for nonsuit.
Defendant further assigns as error that the trial court instructed the jury that they might return either of two verdicts, namely: Guilty as charged in the bill of indictment, or not guilty; and that the court failed to instruct the jury that it might return a verdict of guilty of the misdemeanor of non-felonious breaking and entering.
G.S. 15-170 provides:
“Upon the trial of any indictment the prisoner may be convicted of the crime charged therein or of a less degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a less degree of the same crime.”
In State v. Jones, 264 N.C. 134, 141 S.E. 2d 27, Justice Bobbitt, writing for the Court, stated:
“G.S. 14-54, as amended, defines a felony and defines a misdemeanor. The unlawful breaking or entering of a building de*197 scribed in this statute is an essential element of both offenses. The distinction rests solely on whether the unlawful breaking or entering is done ‘with intent to commit a felony or other infamous crime therein.’ Hence, the misdemeanor must be considered ‘a less degree of the same crime,’ an included offense, within the meaning of G.S. 15-170.
“ ‘The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor.’ S. v. Hicks, 241 N.C. 156, 159, 84 S.E. 2d 545. Cf. S. v. Summers, 263 N.C. 517, 139 S.E. 2d 627.”
In the present case there was no evidence from which the jury could find defendant guilty of the lesser crime of non-felonious breaking and entering. He admitted striking the window glass with his belt buckle but his own testimony, if accepted as true, would not support a finding that his act in striking the window had been “wrongfully done without intent to commit a felony or other infamous crime,” which would have made him guilty of a misdemeanor under G.S. 14-54 as amended. On the contrary, he testified that he struck the window glass only accidentally and while engaged in defending himself. If this testimony should be accepted as true, defendant would not have been guilty of any crime. The court properly submitted to the jury the issue of defendant’s guilt or innocence of the crime with which he was charged, and there was no error in failing to submit as a possible verdict his guilt of a lesser degree of that crime.
We have carefully examined defendant’s remaining assignments of error and find them to be without merit. In the entire trial we find
No error.
