#### STATE OF NORTH CAROLINA v. JAMES MOSES McCAULEY

No. 7126SC573

(Filed 17 November 1971)

Appeal by defendant from McLean, Judge, 19 April 1971 Special Criminal Session of Superior Court held in Mecklen-burg County.

Defendant was charged in a bill of indictment with the felony of burglary. When the case is called for trial, the solicitor for the State announced that the State elected to place defendant' on trial for the lesser included offense of felonious breaking or entering. To this latter charge defendant entered a plea of not guilty.

State’s evidence tended to show: At approximately seven o’clock p.m. on 5 January 1971 Rosiland Wheeler was alone in her mother’s home at 1617 Pyron Street in the city of Charlotte. As she completed taking a bath and came out of the bathroom, she saw defendant standing in the living room. She ran out of the house and to a friend’s house across the street from where she called her brother by telephone. She and her friend watched as defendant came out of the house carrying a record player in one hand and a tape recorder in the other. Rosiland Wheeler’s brother and brother-in-law later brought defendant back to the scene where city police took him in custody.

Defendant’s evidence tended to show: He was visiting in Charlotte and trying to locate where a friend lived. He saw Rosiland Wheeler on the front porch of her house and asked if she knew his friend. She invited him into the house where she inquired of visitors in the house if they knew defendant’s friend. Obtaining no information from them, she volunteered to go to a home across the street and make further inquiry for defendant leaving him in her house with the several other visitors. When she did not return in three or four minutes, defendant left. He did not take anything out of the house, and did not walk away with a record player and a tape recorder. A little while later, he was accosted and returned to the scene by persons unknown to him.

Upon a verdict of guilty of felonious breaking or entering an active prison sentence was imposed. Defendant appealed.

*700 Attorney General Morgan, by Associate Attorney Witcover for the State.

Blackwell, Foley, Morton & Robinson, by James H. Morton, for defendant.

BROCK, Judge.

We have carefully considered defendant’s assignments of error and we find no error sufficient to justify a new trial. In our opinion defendant had a fair trial, free from prejudicial error.

No error.

Judges Vaughn and Graham concur.