State v. Stubbs , 266 N.C. 274 ( 1966 )

Bobbitt, J.,

dissenting' in part: There was a separate judgment on each count. As to the first count, the judgment imposed a prison sentence of not less than seven nor more than ten years. As to the second count, the judgment imposed a prison sentence of not less than three nor more than five years, this sentence to begin upon expiration of the sentence on the first count.

My dissent relates solely to the second count.

If an indictment charges the larceny of property of a value in excess of $200.00 but fails to charge the larceny was accomplished by breaking and entering one of the buildings described in G.S. 14-72, “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.” S. v. Cooper, 256 N.C. 372, 124 S.E. 2d 91.

My views are more fully stated in the concurring opinion in S. v. Brown, 266 N.C. 55, 62, 145 S.E. 2d 297, and cases cited therein.

Here, as to the second (larceny) count, the judge did not so instruct the jury; and, for error in failing to so charge, defendant, in my opinion, is entitled to a new trial as to the second (larceny) count.