State v. Biggs

165 S.E.2d 560, 3 N.C. App. 589, 1969 N.C. App. LEXIS 1630

Opinion

MallaRD, C.J.

The State’s evidence was circumstantial. It tended to show that the defendant, together with another man, broke a window in the store building of Lowes in which personal property owned by Lowes was situated on 11 January 1968 and entered the building. The evidence further tended to show that no personal property was taken and that none of the personal property of Lowes was missing therefrom. The defendant was apprehended that same night about three-fourths of a mile from Lowes.

Defendant assigns as error the fact that the trial court failed to instruct and submit to the jury the issue of defendant’s guilt of non-felonious breaking or entering, which is a lesser degree of the crime charged.

There was ample evidence to submit the question of the guilt or innocence of the deféndant on the felony charge of breaking or entering as well as the lesser included offense of non-felonious breaking or entering, which is a misdemeanor.

We are of. the opinion and so hold that the court’s failure to submit for jury consideration and decision the lesser included offense of the misdemeanor. of breaking or entering was prejudicial error. Decision in this case is controlled by State v. Jones, 264 N.C. 134, 141 S.E. 2d 27. The other cases cited by the State .are factually distinguishable.

Defendant has other assignments of error, but since the case goes back for a new trial, we do not deem it necessary to discuss them.

New trial.

Bkitt and PARKER, JJ., concur.