Defendant’s sole argument on appeal is that the trial judge erred in overruling defendant’s motion for a directed verdict of acquittal on the grounds that there was no evidence adduced at trial tending to prove that the purported possession of the heroin by defendant was for the purpose of sale, as charged in the bill of indictment. Defendant contends the evidence presented is only sufficient to support a charge of possession of heroin, thus establishing a fatal variance between pleading and proof. Defendant contends that the crucial element “for purpose of sale,” as set forth in the indictment, is lacking in the verdict returned; therefore, the verdict is insufficient to support the judgment.
The indictment in this case charges possession of heroin for the purpose of sale. The record, in showing the plea, judgment and verdict, reflects that defendant entered a plea of “not guilty to the charge of possession of heroin,” and that the verdict was “guilty of possession of heroin.” The judgment and commitment as signed by the trial judge states that defendant pleaded not guilty to possession of heroin “with intent to distribute” and that defendant was found guilty of possession of heroin “with intent to distribute.”
*267G.S. 90-95 authorizes the same punishment for either possession of heroin, or possession of heroin with intent to distribute. The punishment of five years imposed by the trial judge here did not exceed the statutory limit as prescribed for either offense.
“Mere technical error will not entitle defendant to a new trial; it is necessary that error be material and prejudicial and amount to a denial of some substantial right.” 3 Strong, N. C. Index 2d, Criminal Law, § 167, p. 127.
We find no prejudicial error affecting a substantial right of defendant, entitling him to a new trial. It appears however that the judgment and commitment indicate that defendant was found guilty of possession of heroin with intent to distribute. It seems clear that the plea was only to the charge of possession and that the verdict was guilty of a charge of possession only. Although the authorized punishment is the same, we feel that the record should be conformed to reflect what actually transpired. We therefore remand the case to the Superior Court for a correction of the judgment to show that defendant pleaded not guilty to possession of heroin and that he was found guilty of possession of heroin. In order that the reference to intent to distribute may be stricken, the case is. remanded for the purposes stated, but in the trial we find no error.
No error.
Judges Morris and Carson concur.