State v. Keeter

241 S.E.2d 708 (1978)

STATE of North Carolina v. Roy Richard KEETER.

No. 7729SC854.

Court of Appeals of North Carolina.

March 7, 1978.

*709 Atty. Gen. Rufus L. Edmisten by Associate Atty. Robert W. Newsome, III, Raleigh, for the State.

Hamlin, Potts, Averette & Barton by H. Paul Averette, Jr., Brevard, for defendant-appellant.

WEBB, Judge.

Our Courts have repeatedly held that where a defendant is tried for breaking or entering and felonious larceny and the jury returns a verdict of not guilty of felonious breaking or entering and guilty of felonious larceny, it is improper for the trial judge to accept the verdict of guilty of felonious larceny unless the jury has been instructed as to its duty to fix the value of the property stolen; the jury having to find that the value of the property taken exceeds $200.00 for the larceny to be felonious. State v. Jones, 275 N.C. 432, 168 S.E.2d 380 (1969); State v. Teel, 20 N.C.App. 398, 201 S.E.2d 733 (1974); see also State v. Cooper, 256 N.C. 372, 124 S.E.2d 91 (1962); State v. Holloway, 265 N.C. 581, 144 S.E.2d 634 (1965); State v. Lilly, 25 N.C.App. 453, 213 S.E.2d 418 (1975). The above cited cases also stand for the proposition that although the judgment of felonious larceny must be vacated where no instructions were given on value, the verdict will stand, and the case is to be remanded for entering a sentence consistent with a verdict of guilty of misdemeanor larceny.

We are presented with the question of whether the rule of State v. Jones, supra, should be extended to the case at bar. That is, whether a case in which the jury is unable to reach a verdict on a charge of felonious breaking or entering precludes the acceptance of a guilty verdict of felonious larceny. We hold that Jones does apply. As we read the Jones case, if the jury does not find the defendant guilty of felonious breaking or entering, it cannot find him guilty of felonious larceny based on the charge of felonious breaking or entering.

We note that the court imposed a sentence which was not in excess of what could have been imposed for a conviction of misdemeanor larceny. Nevertheless, since the sentence was imposed on the basis of a conviction of felonious larceny, we hold that it must be vacated.

The verdict will not be disturbed. The judgment is vacated and the case is remanded to the Superior Court of Henderson County for the pronouncement of a judgment herein as upon a verdict of guilty of misdemeanor larceny.

BRITT and HEDRICK, JJ., concur.