¶1Defendant contends and the State concedes that at the time of this offense, the unlawful taking of a motor vehicle under former G.S. 20-105 was not a lesser included offense of felonious larceny. We agree.
¶2Since the offense was committed before 1 January 1975, an indictment for larceny will not support a conviction for the unlawful taking of a motor vehicle in violation of G.S. 20-105 [repeal effective 1 January 1975]. State v. Stinnett, 203 N.C. 829, 167 S.E. 63; State v. McCrary, 263 N.C. 490, 139 S.E. 2d 739; State v. Campbell, 14 N.C. App. 633, 188 S.E. 2d 754.
¶3The court instructed the jury:
“ ... if you return a verdict of not guilty of felonious larceny, you would consider whether or not the defendant is guilty of the unlawful taking of a vehicle which is a lesser included offense within the charge of larceny which I referred to.” (Emphasis added.)
¶4The instruction is erroneous.
¶5On 1 January 1975, G.S. 14-72.2 entitled “Unauthorized use of a conveyance” became effective. Subsection (d) expressly provides that, an offense under G.S. 14-72.2 may be treated as a“lesser-included offense of the offense of larceny of a conveyance.” Defendant in this case was charged with an offense that was alleged to have occurred in October, 1974.
¶6The judgment is vacated and the case is remanded.
¶7Vacated and remanded.