State v. Silas, 360 N.C. 377

Summary

The Supreme Court of North Carolina held that an indictment for felonious breaking or entering need not specifically allege the felony the defendant intended to commit. However, when an indictment does specify the intended felony, the State may not later amend that allegation because doing so can substantially alter the charge and prejudice the defendant. The court overruled State v. Vick to the extent inconsistent with this holding and affirmed the remedy of entering judgment for misdemeanor breaking or entering.

Holdings

1. An indictment for felonious breaking or entering need not specifically identify the felony intended to be committed inside the building; it is sufficient to allege that the defendant intended to commit a felony or larceny therein, along with the other required elements.
2. When an indictment for felonious breaking or entering specifically alleges the intended felony, the State may not amend that allegation to substitute a different intended felony because the amendment substantially alters the indictment and is prohibited by N.C.G.S. § 15A-923(e).
3. Because the indictment properly charged misdemeanor breaking or entering but the amendment could not support the felonious offense, the proper remedy was to affirm the arrest of judgment on the felony conviction and remand for entry of judgment on misdemeanor breaking or entering.

Questions Presented

1. Whether an indictment for felonious breaking or entering must specifically allege the felony the defendant intended to commit inside the building.
2. Whether, when an indictment specifically alleges an intended felony, the State may orally amend that allegation after the close of the evidence to substitute a different felony.
3. Whether the amendment prejudiced defendant and required entry of judgment for misdemeanor rather than felonious breaking or entering.

Disposition

affirmed