Later courts went against this
Overruled on other grounds by State v. Jones, 275 N.C. 432 (1969)
State v. Brown, 266 N.C. 55, 61, 145 S.E.2d *558 297, 302 (1965), overruled on other grounds, State v. Jones, 275 N.C. 432, 168 S.E.2d 380 (1969); State v. Litchford, 78 N.C. App. 722, 724, 338 S.E.2d 575, 577 (1986).
Distinguished
Distinguished by State v. Silva, 304 N.C. 122 (1981)
266 N.C. 55, 57, 145 S.E. 2d 297, 299 (1965), the rule is inapplicable when the error admitting the evidence is of constitutional dimension.
The opinion
Bobbitt, J.,
concurring: G.S. 14-72 provides, subject to exceptions set forth, that larceny is punishable as a misdemeanor where the value of the stolen goods is $200.00 or less. At common law, both grand larceny and petit larceny were felonies. S. v. Cooper, 256 N.C. 372 , 124 S.E. 2d 91 . Under the common law, as amended by G.S. 14-72, larceny is punishable as a felony, notwithstanding the value of the goods stolen is $200.00 or less, if the larceny is *63 from the person or is accomplished by breaking and entering one of the buildings described in G.S. 14-72.
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, supra; S. v. Holloway, 265 N.C. 581, 583 , 144 S.E. 2d 634 .
On the other hand, if the larceny indictment charges that the larceny was accomplished by means of breaking and entering one of the buildings described in G.S. 14-72, and the jury so finds, the crime is punishable as a felony without reference to whether the indictment charges or the jury finds the value of the stolen goods was more than $200.00.
G.S. 14-72 relates solely to punishment for the separate crime of larceny. It relates to G.S. 14-54, if at all, only under very unusual circumstances. See S. v. Andrews, 246 N.C. 561 , 99 S.E. 2d 745 . Under G.S. 14-54, if a person breaks or enters one of the buildings described therein with intent to commit the crime of larceny, he does so with intent to commit a felony, without reference to whether he is completely frustrated before he accomplishes his felonious intent or whether, if successful, the goods he succeeds in stealing have a value in excess of $200.00. In short, his criminal conduct is not determinable on the basis of the success of his felonious venture.
The doctrine of S. v. Andrews, supra, can have no application unless it appears affirmatively from the indictment and evidence that the breaking or entering was with intent to steal specific identifiable property of the value of $200.00 or less and no other property.
For the reasons indicated, I agree there was no error in relation to the first count. As to the second count, I think there was error in respect of the matter discussed below.
The second count charged larceny of a Monroe Calculating Machine valued at $400.00. It did not charge the larceny was accomplished by means of breaking and entering. The evidence was conflicting as to whether the value of the Monroe Calculating Machine exceeded $200.00. Under these circumstances, the court' charged the jury that the value of the stolen goods was immaterial if the larceny was accomplished after entering the building with intent to commit a felony.
*64 The instruction was erroneous in two respects: (1) The allegations of the second count did not warrant such an instruction; and (2) larceny of property valued at $200.00 or less is punishable as a felony only when accomplished by means of breaking and entering.
The jury returned a verdict of “guilty of entering with the intent to commit a felony and larceny charged in the bill of indictment.” One judgment was pronounced, to wit, a judgment that each defendant “be imprisoned in the State’s Prison for a term not less than five years nor more than seven years each.”
It would seem that, under our decisions, see S. v. Smith, 226 N.C. 738 , 40 S.E. 2d 363 , and S. v. Hoover, 252 N.C. 133 , 113 S.E. 2d 281 , error relating solely to the second (larceny) count is considered immaterial because the judgment, when related solely to the verdict of guilty as to the first count, is well within the maximum permissible limits. Hence, with the foregoing explanation, I concur in the decision.
SHARP, J., joins in this concurring opinion.