The evidence for the State tended to show that the defendant, at the time of the alleged escape, was in the custody of the Department of Correction. He was serving a sentence of 25 to 40 years for the felony of “safecracking” under a commitment dated 16 July 1969. On 11 September 1970 the defendant escaped from an officer of the Department of Correction who was in charge of a work squad. Dogs were called in to trail the defendant, and he was apprehended the same afternoon.
The defendant excepted to and assigned as error the following portions of the instructions given by the judge to the jury:
“Now in order for the defendant to be convicted of the offense with which he is charged, that is a felonious first escape, it is necessary that the State of North Carolina shall prove two things. First, it is necessary that the State prove beyond a reasonable doubt that the defendant was in lawful custody of lawful authorities of the State of North Carolina at the time referred to in the bill of indictment, which was the 11th day of September, 1970.
In addition to that, the State must also prove beyond a reasonable doubt that on the 11th day of September, 1970, the defendant while in lawful custody escaped.
* * *
In order for ... so I say to you ladies and gentlemen, if you find from the evidence and beyond a reasonable doubt that on the 11th day of September, 1970 the defendant was *427in the lawful custody of the authorities of North Carolina, the Department of Correction to be specific, and if you further find that he fled from that confinement and failed to subject himself to it until the time that he would have been lawfully delivered therefrom by operation of law, if you find each of these elements to exist beyond a reasonable doubt, then it would be your duty to return a verdict of guilty.”
G.S. 148-45 makes' it a misdemeanor for a prisoner to escape under some circumstances and a felony under other circumstances. The defendant’s plea of not guilty put in issue every essential element of the crime charged. The defendant was charged with escaping from the lawful custody of the State Department of Correction while then and there serving time for a felony. The trial judge did not instruct the jury that before they could convict the defendant of the felony of escape charged, they must find beyond a reasonable doubt that at the time of the escape he was serving a sentence imposed upon conviction of a felony. The failure to instruct the jury as to this essential element of the crime charged was prejudicial error which entitles the defendant to a new trial. State v. Ledford, 9 N.C. App. 245, 175 S.E. 2d 605 (1970).
New trial.
Judges Parker and Vaughn concur.