State v. Woodrow , 272 N.C. 515 ( 1968 )

PER CuRiam.

There was direct evidence that defendant unlawfully entered the Cherry dwelling house; that he was in the kitchen when first observed by the aroused occupants; and that he made his exit by way of the kitchen window. Moreover, the circumstantial evidence, when considered in the light most favorable to the State, was sufficient to support a jury finding that the kitchen window had been closed and that defendant had raised the kitchen window and had entered the kitchen by way thereof.

Defendant’s assignments of error, which relate to nonsuit and one excerpt from the charge, presuppose there was no evidence of an unlawful breaking. Although, in our view, the evidence was sufficient to support a finding that defendant made his entry pursuant to an unlawful breaking, attention is called to the fact that such evidence was not a prerequisite to conviction.

“G.S. 14-54, as amended, defines a felony and defines a misdemeanor. The unlawful breaking or entering of a building described in this statute is an essential element of both offenses. The distinction rests solely on whether the unlawful breaking or entering is done ‘with intent to commit a felony or other infamous crime therein.’ Hence, the misdemeanor must be considered ‘a less degree of the same crime,’ an included offense, within the meaning of G.S. 15-170.” (Our italics.) State v. Jones, 264 N.C. 134, 141 S.E. 2d 27. See State v. Cloud, 271 N.C. 591, 157 S.E. 2d 12, and cases cited.

Defendant was convicted of “a less degree of the same crime,” a misdemeanor, after a trial conducted in accordance with approved legal principles.

No error.