dissenting: “Under G.S. 14-72 the larceny of property of the value in excess of $200 is a felony, and the larceny of property of the value of $200, or less, is a misdemeanor (except in those instances where G.S. 14-72 does not apply, such as larceny from the person, larceny from certain buildings and houses by breaking and entering, and horse stealing). Whether a person who commits the crime of larceny is guilty of a felony or guilty of a misdemeanor depends solely upon the value of the property taken. The misdemeanor of larceny is a less degree of the felony of larceny within the meaning of G.S. 15-170.” S. v. Summers, 263 N.C. 517, 139 S.E. 2d 627, citing S. v. Cooper, 256 N.C. 372, 124 S.E. 2d 91.
In S. v. Cooper, supra, after full consideration of the statutes and decisions prior and subsequent to the Act of 1913 (Public Laws of 1913, Chapter 118) which, as amended, is now codified as G.S. 14-72, this Court, undertaking to resolve any inconsistencies in prior decisions, decided these propositions:
1. Where neither larceny from the person nor by breaking and entering is involved, an indictment for the felony of larceny must charge, as an essential element of the crime, that the value of the stolen goods was more than $200.00.
2. A plea of not guilty to an indictment charging the felony of larceny puts in issue every essential element of the crime and constitutes a denial of the charge that the value of the stolen property was more than $200.00.
3. “(T)o convict of the felony of larceny, it is incumbent upon the State to prove beyond a reasonable doubt that the value of the stolen property was more than $200.00; and, this being an essential element of the offense, it is incumbent upon the trial judge to so instruct the jury.”
The opinion in S. v. Cooper, supra, concludes as follows: “Here, the court failed to charge that, before the jury could return a verdict of ‘guilty as charged in the bill of indictment/ the State must prove beyond a reasonable doubt that the value of the stolen property exceeded $200.00. This was an essential feature of the case, embraced within the issue raised by defendant’s plea of not guilty and *192arising on the evidence; and the court, although defendant made no request therefor, was required to give such instruction. S. v. Ardrey, 232 N.C. 721, 62 S.E. 2d 53, and cases cited. Absent such instruction, the verdict did not fix the value of the stolen property as in excess of $200.00. Hence, the judgment imposing a prison sentence permissible only upon conviction of the felony of larceny was erroneous and constitutes ground for a new trial.”
The decision in S. v. Cooper, supra, was in accord with the decision in S. v. Tessnear, 254 N.C. 211, 118 S.E. 2d 393, where the defendant was convicted of receiving stolen property knowing it to have been stolen. The indictment charged the property was “of the value of more than $100.00.” (The alleged crime was committed prior to the effective date of Session Laws of 1961, Chapter 39, in which G.S. 14-72 was amended by substituting “two hundred dollars” for “one hundred dollars.”) In awarding a new trial for failure of the court to instruct the jury “that before they could convict the defendant of the crime charged, they must find beyond a reasonable doubt that the goods received by the defendant were of the value of more than one hundred dollars,” Winborne, C.J., for the Court, said: “In the bill of indictment the defendant was charged with a felony, that is, receiving goods of the value of more than one hundred dollars. G.S. 14-71 and G.S. 14-72. In order for the defendant to be found guilty under G.S. 14-71, it is incumbent upon the State to prove beyond a reasonable doubt that the value of the goods was more than one hundred dollars. This is an essential element of the crime because G.S. 14-72 specifically provides that 'the receiving of stolen goods knowing them to be stolen, of the value of not more than one hundred dollars is hereby declared a misdemeanor/ ”
In S. v. Holloway, 265 N.C. 581, 144 S.E. 2d 634, this Court quoted with approval from the opinion in S. v. Cooper, supra, and applied the principles of law decided and declared therein.
In S. v. Brown, 266 N.C. 55, 145 S.E. 2d 297, the defendant was convicted of entering with intent to commit a felony, a violation of G.S. 14-54, as charged in the first count, and of larceny as charged in the second count. In S. v. Stubbs, 266 N.C. 274, 145 S.E. 2d 896, the defendant was convicted of breaking and entering with intent to commit a felony, a violation of G.S. 14-54, and of larceny as charged in the second count. I disagreed with the majority opinions only with reference to the second (larceny) count. The majority opinions seem to hold that, with reference to the second (larceny) count in such a two-count bill, if all the evidence tends to show larceny by breaking and entering, a general verdict of guilty as charged establishes that the defendant is guilty of the felony of *193larceny even though the second count does not allege the larceny was by breaking and entering and even though there is no instruction that the jury must find the larceny was by breaking and entering as prerequisite to a conviction of the felony or larceny. The majority opinions mention, but the Court did not expressly pass upon, the defendant’s contention that the trial judge erred in failing to instruct the jury it was incumbent upon the State to prove beyond a reasonable doubt before returning a verdict of guilty of the felony of larceny that the value of the stolen property was more than $200.00.
In S. v. Fowler, 266 N.C. 667, 147 S.E. 2d 36, and in S. v. Ford, 266 N.C. 743, 147 S.E. 2d 198, the defendant was tried on a two-count bill charging (1) feloniously breaking and entering a certain building and (2) larceny of property of a value less than $200.00. The second (larceny) count did not allege the larceny was committed pursuant to a felonious breaking and entering. It was held a verdict of guilty of larceny as charged would not support a judgment imposing a sentence permissible only upon conviction of the felony of larceny notwithstanding all the evidence tended to show the larceny was accomplished by means of a felonious breaking and entering. See also S. v. Smith, 266 N.C. 747, 147 S.E. 2d 165, and S. v. Davis, 267 N.C. 126, 147 S.E. 2d 570.
This statement appears in the majority opinion in S. v. Brown, supra: “In our opinion, and we so hold, the provisions of G.S. 14-72 apply to the crime of larceny where there is no charge of breaking and entering or breaking or entering involved. In such cases, it is incumbent upon the State to prove beyond a reasonable doubt that the property stolen had a value in excess of $200.00 in order for the punishment to be that provided for a felony. On the other hand, if the value of such property is found to be of the value of not more than $200.00, or less, such larceny is only a misdemeanor and punishable as such.”
The present criminal prosecution relates to a single count of larceny, to wit, the alleged larceny of a 1961 Chevrolet of the value of $1,200.00. The only evidence with reference thereto is that the value of the Chevrolet exceeded $200.00. This is the State’s evidence. Defendant did not testify. The testimony of the only defense witness related to alibi, not value.
My dissent is not based on the ground that the court should have submitted to the jury whether defendant was guilty of the misdemeanor of larceny, that is, the larceny of property of the value of $200.00 or less. This is required only where the evidence as to value is equivocal or is in conflict. S. v. Cooper, supra; S. v. Summers, supra.
*194The ground of my dissent is simply the elementary proposition that the jury must pass on the credibility of the testimony. Testimony that the value of the car was more than $200.00 merely affords a basis for the jury to so find. In my opinion, it was the duty of the trial judge to instruct the jury that in order to return a verdict of guilty of the felony of larceny (or a verdict of guilty as charged) they must find from the evidence beyond a reasonable doubt that the value of the stolen property was more than $200.00. For error in failing to so instruct the jury, I vote for a new trial.
Conceding it is improbable the jury would have returned a different verdict if the court had given the instruction I deem essential to a proper charge, I much prefer an occasional new trial on account of inadvertence of the trial judge in this respect to the erosion of sound legal principles.
Sharp, J., joins in this dissenting opinion.