Appeal by defendant from Burroughs, Judge. Judgment entered 1 April 1981 in Superior Court, Gaston County. Heard in the Court of Appeals 12 January 1982.
Hill, Judge. Judge Hedrick concurs. Judge Becton dissents.
Defendant and Albert James Weldon came to Jerry Howie's house on North Central Avenue in Belmont looking for Howie's wife's nephew, Jimmy West. When they arrived, no one was at home. Nevertheless, defendant and Weldon went inside. They went upstairs, looked around, and found two shotguns. Defendant and Weldon took both guns across the street to Sacred Heart College where they hid them in the woods. Later, defendant and Weldon sold the guns for one hundred dollars, which they divided
"fifty-fifty." Weldon testified that he and defendant "had drunk about a gallon of vodka the night before." Weldon was still drunk when he entered Howie's house. Defendant presented no evidence.
Defendant's sole argument is that the trial judge erred in failing to instruct the jury on the lesser included offense of misdemeanor breaking or entering. Specifically, defendant contends that there is no evidence that he broke into or entered Howie's house with the intent to commit a felony therein to support his conviction of felonious breaking or entering. We do not agree.
The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor.
State v. Hicks, 241 N.C. 156, 159, 84 S.E.2d 545, 547 (1954) (emphasis original). "However, it is not necessary to submit the lesser included offense if the evidence discloses no conflicting evidence relating to the essential elements of the greater crime." State v. Brown, 300 N.C. 41, 50, 265 S.E.2d 191, 197 (1980).
Of course, in order to convict defendant as charged, the jury must find beyond a reasonable doubt that at the time defendant entered the building, he had the intent to perform the wrongdoing charged in the indictment. State v. Faircloth, 297 N.C. 388, 255 S.E.2d 366 (1979); State v. Jones, 264 N.C. 134, 141 S.E.2d 27 (1965). "The intent with which an accused broke and entered may be found by the jury from evidence as to what he did within the house." State v. Tippett, 270 N.C. 588, 594, 155 S.E.2d 269, 274 (1967).
In the case sub judice, defendant entered Howie's house after discovering that no one was there. While inside the house, he and Weldon looked around, found, and took two shotguns. Thereafter, they hid the guns, sold them, and split the profit. This evidence is sufficient from which the jury reasonably could infer that defendant intended to commit a felony, larceny, at the time he entered Howie's house. There being no conflict in the evidence of the greater offense, felonious breaking or entering, the trial judge did not err in failing to instruct the jury on the lesser included offense, misdemeanor breaking or entering.