State v. Jones

148 S.E.2d 236 (1966)

267 N.C. 434

STATE of North Carolina v. John Henry JONES.

No. 257.

Supreme Court of North Carolina.

May 25, 1966.

*237 T. W. Bruton, Atty. Gen., and Millard R. Rich, Jr., Asst. Atty. Gen., for the State.

Francis O. Clarkson, Jr., Charlotte, for defendant appellant.

PER CURIAM:

Upon the first count the judge instructed the jury that it might return one of three verdicts: Guilty of felonious breaking and entering, guilty of nonfelonious breaking and entering, or not guilty. He correctly defined the two grades of the offense of breaking and entering, as set out in G.S. § 14-54, and he fully explained the difference between the felony and the misdemeanor. Early in the charge, his Honor twice referred to nonfelonious breaking and entering as "nonburglarious breaking and entering," and defendant assigns this misnomer as error. Conceding that the judge inadvertently applied the wrong label to a breaking and entering done without intent to steal property from the building, yet he properly applied the law to the evidence in the case. It is inconceivable to us that this technical error could have affected the verdict. In the final judicial mandate, and several times preceding it, the court used the correct terminology, nonfelonious breaking and entering. Furthermore, all the evidence tended to show that the breaking and entering in question was done with the intent to commit the crime of larceny, *238 and there was no evidence from which the jury could have found that the lesser crime of nonfelonious breaking and entering had been committed. Thus, in instructing the jury that it could return a verdict of nonfelonious breaking and entering his Honor committed error in favor of the defendant. State v. Jones, 264 N.C. 134, 141 S.E.2d 27.

In the trial, we find

No Error.

MOORE, J., not sitting.