State v. Dozier

200 S.E.2d 348 (1973)

19 N.C. App. 740

STATE of North Carolina v. Henry David DOZIER, Jr.

No. 7326SC671.

Court of Appeals of North Carolina.

November 14, 1973.

Certiorari Denied January 9, 1974.

*349 Atty. Gen. Robert Morgan by Andrew A. Vanore, Jr., Deputy Atty. Gen., Raleigh, for the State.

T. O. Stennett, Charlotte, for defendant-appellant.

Certiorari Denied by Supreme Court January 9, 1974.

VAUGHN, Judge.

Defendant's sole contention on appeal, that the trial court erred "in its charge to the jury, when the Court charged on a lesser included offense, where there was no competent evidence to substantiate the charge", is without merit. Any person who breaks or enters any building described in G.S. § 14-54, with intent to commit any felony or larceny therein, is guilty of a felony. A wrongful breaking or entering into such building, without the intent to commit any felony therein, is a misdemeanor, a lesser included offense within the meaning of G.S. § 15-170.

*350 Here, as in State v. Jones, 264 N.C. 134, 141 S.E.2d 27, evidence as to defendant's alleged felonious intent was circumstantial. It was not only proper to instruct as to the lesser included offense, it would have been prejudicial error to fail to so instruct. State v. Jones, supra.

No error.

MORRIS and BALEY, JJ., concur.