STATE
v.
Roosevelt WORTHEY.
No. 670.
Supreme Court of North Carolina.
May 24, 1967.*516 Atty. Gen. Thomas W. Bruton and Asst. Atty. Gen. Henry T. Rosser, for the State.
B. Gordon Gentry, Greensboro, for defendant.
PER CURIAM.
Defendant contends that the trial judge erred in overruling his motion for nonsuit at the close of all the evidence. Considering the evidence in the light most favorable to the State and giving to the State every reasonable inference and intendment to be drawn therefrom, as we must do on motion for nonsuit, we hold there was plenary evidence to repel defendant's motion for nonsuit. State v. Roux, 266 N.C. 555, 146 S.E.2d 654.
Defendant further contends that the court committed error in failing to charge that the jury could bring in a verdict of guilty of the misdemeanor of non-felonious breaking or entering and in failing to explain to the jury the full contents of G.S. § 14-54. There is merit in this contention.
Upon trial a defendant may be convicted of the crime of which he stands indicted and charged or he may be convicted of a lesser degree of the same crime. G.S. § 15-170. Wrongful breaking or entering without intent to commit a felony or other infamous crime is a lesser degree of felonious breaking or entering within G.S. § 14-54.
The evidence as to defendant's intent was circumstantial and did not point unerringly to an intent to commit a felony; the jury might have found defendant guilty of a misdemeanor upon the evidence.
The court's failure to submit for jury consideration and decision whether plaintiff was guilty of a misdemeanor was prejudicial error. Error in this respect was not cured by a verdict convicting defendant of a felony. State v. Jones, 264 N.C. 134, 141 S.E.2d 27.
New Trial.