State v. Coley

BALEY, Judge.

Defendant contends that the court did not adequately explain to the jury the elements of the offense of breaking and entering with intent to commit a felony and did not instruct the jury with respect to the lesser included offense of non-felonious breaking and entering.

The State’s evidence placed defendant in the house after the break-in. Window panes were broken and glass scattered on the floor. Three bags of frozen food had been removed from a freezer and packed ready to be carried out. Defendant’s companion had a package of frozen food in his pocket as he and defendant prepared to leave. Defendant left hurriedly after the State’s witness telephoned the sheriff. This evidence was un-contradicted except that defendant testified he was cutting logs at a sawmill and was not present in the Cranford house at the time claimed by the State’s witness and knew nothing about the entry.

There was no evidence tending to show a non-felonious breaking and entering. Defendant simply denied that he committed any offense. It was not necessary for the court to give an instruction concerning a lesser included offense.

“Where all the evidence tends to show that the crime charged in the indictment was committed, and there is no evidence tending to show commission of a crime of less degree . . . the court correctly refuses to charge on the unsupported lesser degree.” State v. Duboise, 279 N.C. 73, 80, 181 S.E. 2d 393, 397. State v. Griffin, 280 N.C. 142, 185 S.E. 2d 149. “Where there is no conflict in the evidence the mere contention that the jury might accept the evidence in part and reject it in part is not sufficient to require an instruction on a lesser included offense.” State v. Gurkin, 8 N.C. App. 304, 306, 174 S.E. 2d 20, 22; State v. McIntyre, 13 N.C. App. 479, 186 S.E. 2d 207, rev’d on other grounds, 281 N.C. 304, 188 S.E. 2d 304.

The court summarized the evidence and gave full instructions concerning the breaking and entering without consent of the owner or person in charge of the building and concerning the required felonious intent to steal and deprive the owner permanently of her property. The instruction covered all essential elements of the offense with which defendant was charged and properly applied the evidence to the law.

No error.

Judges Britt and Hedrick concur