State v. Humphries , 82 N.C. App. 749 ( 1986 )

348 S.E.2d 167 (1986)

STATE of North Carolina
v.
Tracy Demont HUMPHRIES and James Edward Jamison.

No. 8618SC218.

Court of Appeals of North Carolina.

September 16, 1986.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Steven F. Bryant, for the State.

Asst. Public Defender Charles L. White, Greensboro, for defendant Jamison.

Smith, Patterson, Follin, Curtis, James & Harkavy by Charles A. Lloyd, Greensboro, for defendant Humphries.

ARNOLD, Judge.

Defendants contend that there was insufficient evidence to support their convictions for second degree burglary. We agree.

In order to support a conviction for second degree burglary, there must be evidence from which a jury could find that defendants broke and entered a dwelling house at nighttime, with the intent to commit a felony therein. See State v. Wells, 290 N.C. 485, 226 S.E.2d 325 (1976). The intended felony alleged in defendants' indictments was larceny. The State must have presented evidence sufficient for the jury to find that, at the time defendants entered the residence, they intended to take and carry away the personal property of another without consent and with the intent to permanently deprive the owner of that property. G.S. 14-72.

In State v. McBryde, 97 N.C. 393, 1 S.E. 925 (1887), the North Carolina Supreme Court stated:

The intelligent mind will take cognizance of the fact, that people do not usually enter the dwellings of others in the night time, when the inmates are asleep, with innocent intent. The most usual intent is to steal, and when there is no explanation or evidence of a different intent, the ordinary mind will infer this also. The fact of the entry alone, in the night time, accompanied by flight when discovered, is some evidence of guilt, and in the absence of any other proof, or evidence of other intent, and with no explanatory facts or circumstances, may warrant a reasonable inference of guilty intent.

Id. at 396-97, 1 S.E. at 927. We find that there was evidence of other intent, or explanatory facts and circumstances to preclude application of the McBryde inference of intent. Nothing in the evidence supports a finding that defendants entered the apartment with the intent to commit larceny.

Evidence presented by defendants and the State indicates that each defendant believed the apartment to be the dwelling of the other's girl friend. Each defendant presented evidence that he believed the other defendant had permission to enter the apartment. Nothing in the apartment, according to the owner, had been disturbed. This is sufficient to rebut the McBryde inference of intent to steal. See State v. Lamson, 75 N.C.App. 132, 330 S.E.2d 68, disc. rev. denied, 314 N.C. 545, 335 S.E.2d 318 (1985).

We find that there was insufficient evidence to sustain a verdict of second degree burglary. However, we believe, and both defendants concede, that there was evidence from which the jury could have found defendants guilty of misdemeanor breaking or entering under G.S. 14-54(b). The felony charge must be stricken and the case remanded for resentencing on the lesser included offense of misdemeanor breaking or entering.

Vacated and remanded.

WELLS and EAGLES, JJ., concur.