#### STATE v. GEORGE A. JOHNSON.

(Filed 20 December, 1940.)

1. Criminal Daw § 48b—

The admission of evidence generally and without qualification will not be held erroneous, even though the evidence is competent only for the purpose of corroboration, when at the time of its admission defendant does not request that its purpose be restricted. !

2. Burglary § 10: Criminal Daw § 53d — Where all the evidence shows that dwelling was actually occupied, instruction that verdict of burglary in second degree is not permissible, is without error.

In this prosecution for burglary, defendant relied upon the defense of intoxication. All the evidence tended to show that the dwelling was actually occupied at the time it was broken and entered, and that the offense was committed at nighttime. The court fully and correctly charged the jury upon the defense of intoxication, and charged the jury that it might find defendant guilty of burglary in the first degree, guilty of an attempt to commit burglary in the first degree, guilty of breaking and entering otherwise than burglariously, guilty of an attempt to break and enter otherwise than burglariously, or not guilty. The court refused to give defendant’s requested instruction that the jury might render a verdict of guilty of burglary in the second degree. After the charge, the jury returned and requested further instructions on the defense of intoxication, which were given, and then the jury asked whether it might return a verdict of guilty of burglary in the second degree. The court answered in the negative, and further charged that there was no evidence to support a verdict of second degree burglary, and again instructed the jury as to the verdicts permissible on the evidence. *Held:*C. S., 4641, does not authorize an instruction that the jury may render a verdict of burglary in the second degree in its discretion irrespective of the evidence, and the further instruction that there was no evidence tending to support a verdict of burglary in the second degree, is in accordance with law and is without error.

Devin, J., concurring.

Schenck, J., joins in concurring opinion.

Stacy, O. J., dissenting.

Babnhill, J., dissenting.

Winboene, J., dissenting.

Appeal by defendant from *Frizzdle, J.,*and a jury, at August Civil i Term, 1940, of RobesoN.

No error.

Tbis is a criminal action. The bill of indictment by the grand jury, upon which defendant was tried, was for burglary in the first degree. The jury returned a verdict of guilty of burglary in the first degree. Judgment of the court below was death by asphyxiation.

The evidence was to the effect: That Ruth Currie and her husband, Fred L. Currie, were living in a house alone in Pembroke, N. C., facing *605on the Lumberton-Charlotte Highway. Tbeir nearest neighbors were Mrs. Cooke, who lived on the right, and Mr. and Mrs. Wiggins, in front and across the highway, and the Littletons.

Mrs. Euth Currie testified, in part: “There is another lot near my home used as a place to keep second-hand automobiles; that is on the next lot to my house, adjoins my house, starts on the front and goes right on back to the woods. That lot is kept lighted at night, either three or four lights out there. It was lighted on the night of July 28, I noticed it, the light was shining through my window.” She knew the defendant, George A. Johnson. He was employed by Mrs. Cooke and was working for her two or three months. He mowed her (Mrs. Currie) lawn once a week. She had a little dog named Midgett, that usually barked at night and could be heard every time he barked. The dog got friendly with defendant, as he would feed the dog “give him scraps out at night.”

On the night of 28 July, she saw defendant at the Tyner Motor Company, at 9 :00 o’clock, and had a conversation with him about mowing her lawn. He said, “I will do it Monday morning.” She saw him again about 11 o’clock, when she was at a neighbor’s house, Mrs. Eobt. L. Littleton, who lived near her on the same side of the street. She was there listening to the radio. He and Willie Lee, who worked at the Tyner Motor Company, came by and stopped there and talked a few minutes and went toward her house. Mr. and Mrs. Littleton drove her home about 25 minutes to twelve. Her husband had gone to bed and she went to the living room and listened to the radio. She went to bed about 25 minutes to one o’clock. “When I turned off the light and went to my room Mr. Currie was asleep then; he and I slept in the same bed, and in the same room. I immediately went to sleep after I went to bed. I woke up, when he touched me I woke up. I was on my back and on the left-hand side of the bed, Mr. Currie on the right-hand side, and I felt something crawling on my leg, and when I did, I did like that and touched his hand, and sat up, and looked down and he was on the floor with his head down like that, and I screamed and woke Mr. Currie — I call him Judge — and he rose up and said I was having a nightmare, and when I said there is a man in the room he got up and ran. I saw him. He went toward the hall and into the kitchen. I saw him and recognized him from the light shining right in the window. The garage lot lights were shining through my window, my bed was near the window, it was between two windows in the corner of the room, and he was on the floor by the bed. After I screamed and said there is a man in the room, Mr. Currie got up, the gun was over in a chest drawer where I kept his socks and everything, and he grabbed the gun *and said it was the Negro George that works for Mrs. Cooke;*he ran out and went upstairs *606and came back and went to tbe front of tbe bouse, and Mr. Currie goes to tbe telephone, and I was right behind him, and be called tbe city police in Pembroke, couldn’t get anybody to answer, then called Lum-berton and got Sheriff Wade, and be told him be would be over there immediately, and in tbe meantime Sheriff Wade called 'Carl Maynor. My husband also called Mr. Littleton and Mrs. Littleton answered tbe telephone, and they came immediately to my bouse. I told them exactly what I told Mr. Currie. I told them be was touching me and I woke up, be was going up my leg like a bug crawling on me. It was a real hot night and I bad turned tbe sheets down at tbe foot of tbe bed; my night clothes were not down when I went to bed, I pulled it to here (indicating about half way tbe thigh), but it was right along here when be touched me (indicating about tbe waist line).” . . . Several of tbe neighbors came and some officers. “Mr. Currie and Mr. Purcell and Mr. Littleton all went around tbe bouse. I was not with them, but I went around tbe bouse. I observed that be pushed a bole in tbe screen with a stick, burnt at one end, and looked like be put bis band in it; tbe screen fastens with a book, and you have to pull it up and pull it off to take it off, and it was set against tbe wall on tbe outside; tbe stick was right on tbe ground, it bad a charred end to it. Tbe screen in tbe window nearest to tbe bed was unbooked and pushed out; it was unbooked so all be would have to do was jump out of tbe window, bad tbe round book pushed open and tbe screen pushed out; that screen was closed when I went to bed. That screen in tbe kitchen window that we found removed was locked; tbe window was pulled up but tbe screen was locked. Our bouse was locked, tbe screen door was locked. This happened between 3 :00 and 3 :30 o’clock in tbe morning, it was dark. We bad a garbage can, it sits at tbe corner of tbe back porch and we bad it buried in a bole about 18 inches deep, maybe a little bit more, and be took tbe garbage pail and lifted it completely up. It was gone out of that bole, it was by tbe window where Mr. Currie sleeps, on tbe side of tbe bed Mr. Currie sleeps, at tbe back window. Tbe top was bent in where be stood up on it. Tbe window at my bead was unfastened after I went to bed and went to sleep. ... It was tbe screen to tbe window in tbe kitchen that bad tbe bole in it; it was leaning against tbe wall of tbe bouse; tbe stick was laying down on tbe ground. . . . I slept on tbe left side of tbe bed next to tbe window. Tbe can was at tbe window next to Mr. Currie’s side of tbe bed. *When I observed the defendant he was there in the room right next to the bed Icneeling down, on his knees on the floor,*and when I hollered be got up and ran. He ran right straight through tbe door. It was a moonlight night. There was missing from tbe home *Mr. Currie’s watch, knife, pocketbook,*and be bad some letters, bad a lot of receipts in bis pocketbook. He bad *607Ms clothes in the chair that was next to the mantelpiece in our bedroom. . . . The next time I saw the defendant, after seeing him in my bedroom, was right here in the courtroom. *He is the man I saw in my bedroom; he is the man I saw working for Mrs. Cooke;*the defendant is the man I saw feed my dog, the man that promised to cut my grass on Monday morning. Q. State whether or not this defendant here is the person you saw in your house there by your bed that night ? Ans.: Yes, sir.” On cross-examination: “He didn’t move until Mr. Currie answered me; I knocked his hand off of me when I sat up in bed and when Mr. Currie answered, he started running, he turned around just like this and ran out in the hall. . . . The defendant was perfectly normal when I saw him. I asked him when he was going to mow the lawn. I heard him talking to Willie Lee, his condition seemed to be all right. He didn’t talk to me like an intoxicated man. I saw him in my home around 3 :00 or 3 :30 o’clock. I didn’t have occasion to verify that but it was around that time. I had been asleep something like an hour or two. As to any misgivings in my mind about the identity of this man I saw in my room, there are not many colored people in Pembroke, and the minute he stood up I recognized him. *... I am satisfied beyond even a shadow of a doubt that, notwithstanding the fact it was in the darkness, I am not mistaken; I wasn’t mistaken the minute I woke up and saw him and there hasn’t been a doubt in my mind from that night on. .. .*(Be-direct): I told Mrs. Littleton this defendant is the man who I saw in my room, I also told Mr. Wiggins, Sheriff Wade, Mr. Purcell, Mr. Crump, Shell Warrix, and all of them when they got there. Mr. Wade or Mr. Crump picked up some struck matches, I saw them pick them up at my window and at Mr. Currie’s window, I don’t know whether there was any at the window where he went out or not.” She was corroborated by her husband, Fred L. Currie, who testified to other facts as to how the burglar got in and out of the house. He also testified: “I didn’t miss the watch not until the Sheriff brought the watch up; that must have been 5 :30 or 6 :00 o’clock after he arrested the Negro.”

Bernice Eobeson testified, in part: “When he (defendant) came back last time it was between 3 :00 and 3 :30 o’clock; it was after that I heard the scream and saw him running. (Cross-examination) : Willie Lee and him were drinking a little bit that night, I think they were; I don’t know that George was pretty drunk, he didn’t act like it. ... I don’t know whether he was drunk or sober, he didn’t act to me like he was drunk when he was scratching on the screen; he didn’t say what he came back there for, I didn’t ask him. ... I saw him in the moonlight, the moon was shining that night. I didn’t go back to sleep after he scratched on my window. It was about thirty minutes after that *608and I beard Mrs. Currie scream. When I beard Mrs. Currie scream I saw bim running from over there, be run between tbe garage and my bouse.”

Sbe was corroborated by Mrs. Robt. L. Littleton, wbo testified, in part: “I saw ber (Mrs. Currie) again after 3 :00 o’clock after a pbone message was received. I saw ber at ber borne. In consequence of tbe pbone call we went immediately, my busband and I, up to Fred Currie’s borne. My busband and I got up immediately after tbe pbone call and went there, and when we drove up in tbe yard — I don’t imagine it took us more than five or six minutes — Mrs. Currie opened tbe door and was highly nervous and of course we ran in immediately, and sbe said, ‘That Negro George Johnson has been in my bedroom and touched me,’ kept saying it over and over, and of course we tried to comfort ber, and my busband left immediately, I don’t know where be went, but I think be drove up town immediately to see if be could see any person. Sbe described what bad happened to ber, sbe told me in detail. Sbe said sbe was lying in tbe bed. (By tbe Court): Consider this, gentlemen, only for tbe purpose of corroborating Mrs. Currie, if you find it does corroborate ber. — Sbe was lying in tbe bed and was awakened by this band on ber leg and sbe aroused up immediately and screamed, sbe saw tbe figure of a man crouching by tbe side of her bed, and it wasn’t until ber busband answered ber that be wheeled on bis all fours and went out of tbe room, and sbe told me sbe was definite it was George Johnson. . . . I also recall seeing, when tbe officers were there, match stems at tbe window and also saw a piece of molding off a screen, also a stick, looked like be pushed in tbe screen, screen punched out, sharp pointed stick. I guess tbe piece I saw was a piece of molding, something that is on a screen, you know.”

Robert Littleton testified, in part: “I went up there. Tbe first one I saw when I got there was Mrs. Currie. I was in front and my wife behind, and sbe opened tbe front door, and sbe said, ‘He has been feeling of me,’ that was exactly tbe words sbe said, and sbe said it over and over, sbe was crying very bard when we went in tbe room, and sbe told me about it. ... I examined tbe windows in tbe bouse. I first looked around at tbe window around next to ber bedroom and saw it bad been opened; sbe told us it bad been opened; we looked at it; tbe book on tbe screen bad been unfastened and tbe screen pushed out. On tbe side of tbe bouse next to Mrs. Cooke’s tbe screen bad been removed and a short stick, looked like maybe a piece of broom handle, and end of it looked like it bad been burned some, was laying down under where tbe window was, a bole was pushed through tbe screen right at tbe bottom. . . . I mean tbe screen was removed. I tried to see if I could get any paint off on my bands like I observed on bis, and I did. It was *609white paint. Tbe paint I got on my bands came off of tbe part of tbe bouse around tbe window sill. I saw tbe garbage can, I saw tbe bole where it bad been sitting, looked like it bad been freshly moved, and moved to tbe back bedroom window, and tbe lid was caved in. I don’t know whether it was caved in before, and fresh dirt on tbe top of it. I don’t believe any matches were found where tbe screen bad been removed, but matches were at tbe window at tbe bead of Mrs. Currie on tbe right side, and around where tbe garbage can was.”

Sheriff E. C. Wade, who was telephoned for, came at once. He corroborated Mrs. Currie. He went to defendant’s home. “I remember tbe pocket of tbe pants this watch was in, it came out of tbe watch pocket on tbe right-band side of bis pants, front of tbe trousers. . . . When I left that bouse I came back to Mrs. Currie’s and bad tbe watch in my band when I went in. She said, ‘That is Judge’s watch.’ I said, ‘Who, Mrs. Currie?’ She said: ‘We call him Judge.’ ... I observed bis condition and walked back up with them to my car. If be was drinking it wasn’t enough to tell it, be might have been drinking some that night but be didn’t show any signs of being drinking then, perfectly sober.” Qualified by counsel for defendant on tbe *voir dire.*(Tbe court bolds that tbe statement, confession, was free and voluntary.) “I asked him why be went in tbe bouse, be says, ‘I don’t know,’ be said, ‘I was drinking I reckon or drunk.’ He said be got tbe watch off of tbe mantelpiece in Mr. Currie’s room.”

Ealpb Purcell testified, in part: “I received a message on tbe night of tbe 28th of July about ten minutes until 4:00 o’clock. In consequence of that call I went to Pembroke and went to Mr. Currie’s. . . . When I got (defendant) out of tbe bouse there bis trousers were wet, damp. I wouldn’t be positive whether be bad them on or not when I got him up. . . . He bad some matches in bis pocket and they were exactly like tbe ones we found around tbe window, same type matches, matches that come out of a box you strike them on, one of those square boxes. . . . (Cross-examination) I cannot say that bis appearance indicated be might have been drinking tbe night before.”

E. E. Frisson, deputy sheriff of Eobeson County, after being qualified, testified, in part: “I recall when this defendant was placed in jail following bis arrest. I talked with him on Tuesday after be was put in there on Sunday night. Mr. Crump was over there and be called me in tbe room and be told us about going in tbe bouse and getting a watch. . . . He first made tbe statement that be went in tbe bouse and got tbe watch and poeketbook and be said be lost tbe poeketbook going through tbe field, went down tbe highway and went through tbe cornfield toward Juddy Maynor’s, and be said be must have lost it, and that was *610about all tbe statement be made. I did not talk witb bim more than that one time.”

Shelby Warrix testified, in part: “On tbe morning following tbis alleged crime Sunday morning I saw tbe defendant George Johnson, Mr. Purcell was witb bim. I got close enough to bim to observe bis condition. I smelt some whiskey on bim but be wasn’t under tbe influence then. That was around, I imagine around 6:00 o’clock in tbe morning. I could not tell that be bad been drinking to any appreciable extent any more than I smelt some on bim. I am deputy chief of police of Pembroke.”

E. L. Crump testified, in part: “I am deputy sheriff of Robeson County. I saw tbis defendant Johnson early in tbe morning following bis arrest around 6 :30. As to ,his condition be seemed to be normal. I couldn’t tell be bad been drinking from tbe way be looked or acted.”

Tbe defendant testified, in part: “I know Mr. and Mrs. Fred Currie. Tbe best I can remember, that Saturday I was down town and messed around *there*a little and started to drinking liquor. It was round about 9 :00 o’clock, a little after 9 :00, that I took tbe first drink; it was a right heavy drink first starting off. Me and Willie Lee and Bernice were together when I took tbe first drink. Bernice is tbe colored girl that went on tbe stand. She took a drink then. I took more drinks that night. We got another drink that night over at Mandy Carter’s. I got bold of tbe package I carried to her bouse at 11:00 o’clock. We were leaving Mandy’s bouse and she left ahead of us and she told me to get the shoes and I went and got tbe shoes. She went on ahead of me. We bad got all tbe liquor we bad before I carried tbe shoes to her. I reckon I bad drunk about a pint. I drank liquor and beer. I dis-remember bow much I drank. I was good and high. I remember carrying tbe girl’s shoes to her. I remember that. I don’t remember bow long I stayed when I carried her shoes, I didn’t stay long. I don’t remember what I did after that. I went home, that is where I thought I went. I don’t remember exactly which way I went when I went home. I think I went by Ernest’s bouse and went on home. I think I did, I am not positive. I have been drunk before like that, I have been drunk lots. I have been drunk about three times and served time for it in South Carolina. I don’t remember going to tbis bouse. If I did I don’t remember anything about it. . . . (Cross-examination) So far as I can remember I was drunk when I left Bernice’s bouse, that is all I know. I cannot swear what time it was. Something like 1:00 o’clock, I guess, I don’t know. I don’t recall going back to Bernice’s bouse between 3 :00 and 4:00 o’clock. - I don’t remember knocking at tbe window, and then on tbe side of tbe bouse. I don’t know whether I bad sense enough to leave when she told me she was going to call *611Mrs. Cooke if I didn’t leave and go borne. I went borne wben I left there I guess. I guess I went borne, wben I woke up next morning I was at borne. I was at borne wben tbe officers woke me up. ... I don’t remember that I went there and took a stick and punched a bole in tbe wire. I don’t remember cutting it right where I could reach in there and unfasten tbe staple. I don’t remember raising tbe screen and taking it out, and I don’t remember laying it down side tbe bouse. I don’t remember wben I crawled in tbe window. I didn’t see tbe paint in tbe creases of my fingers. Tbe sheriff showed me one little streak on this finger. I played ball caused my shirt to be torn across there. Mr. Currie’s bouse is painted white. I don’t know that it is painted white around tbe window where tbe screen was taken out, I didn’t pay it that much attention, all I seed was a white bouse. I don’t remember a thing about going in bis kitchen that night about 3 :00 or 4:00 o’clock, or going over to tbe side of tbe bed where Mrs. Currie was. I don’t know why I happened to go in tbe room where Mr. and Mrs. Currie were. I don’t remember that I went in tbe room and went to tbe side of tbe bed where Mrs. Currie was sleeping. I don’t remember seeing tbe shoes on tbe side of tbe bed .where Mrs. Currie was sleeping and moving them so I could get side of tbe bed, so I could get close; I don’t remember taking my band and putting it on tbe lady. I was so drunk I wouldn’t swear I did or didn’t. When I woke up tbe next morning tbe cops were there. I don’t know anything about putting my band on tbe lady wben she was in bed that night. I don’t know anything about it. I was drunk and don’t remember anything. I don’t remember wben she pushed my band off. I don’t remember anything about getting down side of tbe bed. I didn’t bear her scream. I don’t remember anything about jumping up and with my bead ducked down, ran out tbe door. I don’t remember whether I ran in tbe side of tbe wall or not. I don’t remember whether I ran under tbe bed or upstairs. I don’t remember that I ran back through tbe kitchen. I don’t remember reaching up on tbe mantel and getting tbe man’s watch, I don’t remember anything about it. . . . Sheriff Wade never showed me that watch while I was in jail. I deny it because be didn’t show it to me. He didn’t show me any watch. ... I didn’t tell Mr. Wade that wben I went in Mr. Currie’s bouse I not only got bis watch but I got bis pocketbook. . . . He said, ‘There is but one thing you can do and that is to own it, this watch came from your bouse.’ He asked me six or seven times. ‘I don’t want any lying out of you to go up with tbe trial, you know tbe watch came from your home and it will really convict you.’ ‘Nothing else to do and if you got tbe watch from my bouse, I will say tbe watch came from my home.’ I told Mr. Crump I lost tbe pocketbook going through tbe woods. ... I finally told *612them I took the watch from off the mantelpiece and lost the pocketbook as I was running. I did not tell them I got the pocketbook out of the man’s pants in the house. What I told them that I confessed the watch was coming from my house, they told me all about it, said Mrs. Currie said the watch was on the mantelpiece, and after I made my confession to them, they said, 'George, there ain’t but one thing, to plead guilty to the crime of the watch as *the*number compares with the one they have.’ I *confessed this house burglary between Mr. Brisson and Mr. Grump. I confessed I went in Mr. Currie’s house to Mr. Grump, that is the one I told. I confessed this burglary in the presence of this officer right here after he told me about it and in the presence of Mr. Brisson. . . . In this crime here, brealcing in Mrs. Currie’s house, I don’t remember about them catching me. I have admitted it, and I didn’t do it until they had caught me redhanded.”*

Earline Jacobs testified, in part: “George Johnson is my brother. He lives with me. We live in Pembroke. I remember him coming home on the night of July 27 of this year, Saturday night. He got home around 12 :30 or 1:00 o’clock. I had been asleep. When I waked up I heard him stumbling in the room, and I said to him like this I said, 'Dee is that you,’ we calls him Dee, I said, 'Dee, is that you, what ails you boy, why don’t you go on to bed,’ and about that time he said all right and I heard the bed cry when he got on it, you know how the bed do. He was high. There has been drinking in my family and with other members of my family. I drinks some. And Frank my husband and Howard *Lee*and a bunch of them be’s drinking. I heard him stumbling around and I thought he was intoxicated.”

The defendant made several exceptions and assignments of error and appealed to the Supreme Court. The material ones and necessary facts will be set forth in the opinion.

*Attorney-General McMullan and Assistant Attorneys-General Bruton and Patton for the State.*

*John S. Butler, Angus Medlin, and McLean S Stacy for defendant.*

OlakksoN, J.

The first question involved, as stated by defendant: Did the court err in allowing witnesses to testify to conversations with the chief prosecuting witness in the absence of defendant? We think not. As to this question, “It is addressed to the refusal of the court to sustain defendant’s objection to conversations had between Mrs. Currie and the witnesses, Littleton and Sheriff Wade, in the absence of defendant. This was hearsay testimony and if it was offered as corroborative evidence, it should have been limited to that purpose by the court and not offered as substantive evidence, as it was.”

*613Rules of Practice in tbe Supreme Court, part of Rule 21 (213 N. C., p. 821): “When testimony is admitted, not as substantive evidence, but in corroboration or contradiction, and that fact is stated by tbe court wben it is admitted, it will not be ground for exception that tbe judge fails in bis charge to again instruct tbe jury specially upon tbe nature of sucb evidence, unless bis attention is called to tbe matter by a prayer for instruction; *nor will it be ground of exception that evidence competent for some purposes, but not for all, is admitted generally, unless the appellant aslcs, at the time of its admission, that its purpose shall be*restricted(Italics ours.)

In tbe corroborating testimony of Mrs. Robt. L. Littleton, tbe court instructed tbe jury: “Consider tbis, gentlemen, only for tbe purpose of corroborating Mrs. Currie, if you find it does corroborate her.” Tbe testimony of Mr. Littleton and Sheriff Wade, we tbinb, comes under tbe latter part of tbe above rule. At least, we can see no prejudicial error. Tbe exception and assignment of error cannot be sustained. -

Tbe defendant says in bis brief: “However, defendant *relies mainly*upon wbat be contends to be tbe error of tbe court, set out in defendant’s Exception I. Tbe jury, after deliberating for some time, returned to tbe courtroom and asked tbe court tbis direct question, Tf we find that be was intoxicated, can we return a verdict of second degree burglary?’ Tbe court replied, ‘No, sir. I instructed you that you could only find tbe defendant guilty of burglary in tbe first degree, or guilty of attempt to commit burglary in tbe first degree, or guilty of breaking and entering otherwise than by burglarious, or guilty of an attempt to break and enter otherwise than burglariously.’ Tbe charge of tbe court, in response to tbe direct question of tbe jury, was tantamount to a nullification of section 4641, C. S., which says that ‘When tbe crime charged in tbe bill of indictment is burglary in tbe first degree, tbe jury may render a verdict of guilty of burglary in tbe second degree, if they deem it proper so to do.’ ”

We'give the entire record of wbat took place: “After some deliberation tbe jury returns to tbe courtroom and asks for further instructions by tbe court. By juror: ‘We would like to know a little further with reference to tbis drunk or intoxicating phase of tbe law.’ By tbe court: ‘Wbat further information as a matter of law do you desire?’ (By juror): ‘Now if be was intoxicated, wbat degree would be have to be intoxicated to be held responsible for bis conduct?’ By court: ‘I tbinb I instructed you that tbe degree of intoxication would have to be such as would make it impossible to form a felonious intent. That is a matter for tbe jury. In tbis case tbe defendant has testified and offered testimony which, be contends, tends to support him, that be was drunk to such an extent that be did not know where be was or wbat be was doing. *614Tbe State, on the other hand, has offered testimony tending to show that he was absolutely sober, so that that becomes — whether he was drunk enough — becomes a question of fact for the jury. Upon that defense it is incumbent upon the defendant — he pleads that as a defense — therefore, the burden is upon him to satisfy you, not beyond a reasonable doubt, nor by the greater weight of the testimony, but merely to satisfy you, that he was so drunk that he did not have the mental capacity to form a felonious intent, in this case the intent to commit either larceny or rape, after he got on the inside of the house, if he did get on the inside of the house. That is just about as clear- and definite as I know how to make it. If he were so drunk that he could not form a criminal intent, a felonious intent, then he could not be guilty.’ (By juror) : 'If we find that he was intoxicated, can we return a verdict of second degree burglary?’ (By the court) : 'No, sir. I instructed you that you could only find the defendant guilty of burglary in the first degree, or guilty of attempt to commit burglary in the first degree, or guilty of breaking and entering otherwise than by burglarious, or guilty of an attempt to break and enter otherwise than burglariously. There is no evidence in this case to support a verdict of second degree burglary. Second degree burglary is where the breaking and entering with intent to commit a felony, is at a time when nobody is occupying the house. It is second degree burglary for a person to break and enter a residence of any kind, in the nighttime while the house is unoccupied. All of the evidence in this case shows that particular house was occupied and, therefore, it could not be burglary in the second degree. There is not a scintilla of evidence nor contention that the house was unoccupied at the time. I do not submit it to you upon the question of second degree burglary at all. Now, does that help you any? Does that throw any further light upon it? *You ivill just remember there are five verdicts in this case that you may render: You may find him guilty of burglary in the first degree, or you may find him guilty of an attempt to commit first degree burglary, or you may find him guilty of brealcing and entering otherwise than burglariously, or you may find him guilty of an attempt to break and enter otherwise than burglariously, or you may find him not*guilty/ The jury returned a verdict of guilty of burglary in the first degree against defendant George A. Johnson.”

When we consider this exception and assignment of error made by defendant, we give what the court below had theretofore charged. The court charged the jury so clearly and ably the law applicable to the facts, in some 20 pages, that defendant took no exception and assigned no error.

N. 0. Code, 1939 (Michie), sec. 4232, is as follows: “There shall be two degrees in the crime of burglary as defined at the common law. *615If the crime be committed in a dwelling-house, or in a room used as a sleeping apartment in any building, and any person is in actual occupation of any part of said dwelling-house or sleeping apartment at the time of the commission of such crime, it shall be burglary in the first degree. If such crime be committed in a dwelling-house or sleeping apartment not actually occupied by anyone at the time of the commission of the crime, or if it be committed in any house within the curtilage of a dwelling-house or in any building not a dwelling-house, but in which is a room used as a sleeping apartment and not actually occupied as such at the time of the commission of the crime, it shall be burglary in the second degree.”

Section 4233: “Any person convicted, according to due course of law, of the crime of burglary in the first degree shall suffer death, and anyone so convicted of burglary in the second degree shall suffer imprisonment in the State’s Prison for life, or for a term of years, in the discretion of the court.”

The court charged, after stating the crime as set forth in the bill of indictment: “Burglary at the common law was the breaking and entering of the mansion house or dwelling house of another in the nighttime with the intent to commit a felony therein. That was the definition of burglary under the law of this State until the year 1889, when by legislative enactment the crime was divided into two degrees, first and second. Under our statute thus dividing burglary into two degrees, burglary in the first degree is where the crime is committed in a dwelling house or in a room used as a sleeping apartment in any building and any person is in the actual occupation of any part of said dwelling or sleeping apartment at the time of the commission of such crime. If such crime be committed in a dwelling house or sleeping apartment not actually occupied by anyone at the time of the commission of the crime, or if it be committed in any house within the curtilage of a dwelling house, or in any building, but in which a room is used as a sleeping apartment and not actually occupied as such at the time of the commission of the crime, it shall be burglary in the second degree. "We have a statute in this State making it .a crime to break and enter a dwelling otherwise than burglariously, and that statute reads as follows: ‘If any person with intent to commit a felony or other infamous crime therein shall break or enter the dwelling house of another otherwise than by a burglarious breaking, he shall be guilty of a felony.’ (N. C. Code, 1939 [Michie], sec. 4235). The Supreme Court has held in a number of eases that where the evidence is sufficient to justify it upon the bill of indictment charging a defendant with burglary in the first degree, it is the duty and mandatory upon the court to submit to the jury the question of whether or not the defendant is guilty of breaking and entering *616the dwelling house in question at the time and place mentioned in the bill of indictment otherwise than burglariously, and that it is error for the court to fail or refuse to do so. So that, under the evidence in this case, the court charges you, gentlemen, that you may render one of several verdicts according as you may find the facts to be under the law that will be given to you in the course of the charge by the court for your guidance. *You may find the defendant guilty of burglary in the first degree, or not guilty; you may find the defendant guilty of an attempt to commit burglary in the first degree, or not guilty; you may find the defendant guilty of brealcing and entering of the residence of Mr. Currie otherwise than by a burglarious breaking and entering, or not guilty; or you may find him guilty of an attempt to break and enter otherwise than burglariously the residence of Mr. Currie; or you may render a verdict of not guilty."*In the charge the court below followed the law as laid down in this jurisdiction. He charged the law as theretofore written and reiterated in the recent case of *S. v. Morris,*215 N. C., 552 (553), as follows: “The court instructed the jury that, under the evidence, only one of two verdicts might be rendered: ‘That is, you can find this defendant guilty of burglary in the first degree or not guilty.’ Exception. All other portions of the charge are admitted to be correct. In apt time, the defendant requested the following special instruction: ‘Our law provides (0. S., 4641) that when the crime charged in the bill of indictment is burglary in the first degree, the jury may render a verdict of guilty of burglary in the second degree if they deem it proper to do so and I instruct you that you have the right to return a verdict of guilty of burglary in the second degree.’ Instruction refused; exception. Verdict: ‘Guilty as charged.’ Judgment: Death by asphyxiation. The defendant appeals, assigning errors. . . . (pp. 555-556). The only question debated on argument and in brief is whether the court committed error in refusing to submit the case to the jury on the charge of burglary in the second degree as requested by the prisoner in his prayer for special instruction. The authorities answer in the negative. *S. v. Spain, 201*N. C., 571, 160 S. E., 825; *S. v. Ratcliff,*199 N. C., 9, 153 S. E., 605. It is provided by C. S., 4641, that upon an indictment for burglary in the first degree, the jury may render a verdict of burglary in the second degree ‘if they deem it proper so to do.’ But this, according to our previous decisions, does not, as a matter of law, authorize the trial court to instruct the jury that such a verdict may be rendered independently of all the evidence. *S. v. Johnston,*119 N. C., 883, 26 S. E., 163; *S. v. Alston,*113 N. C., 666, 18 S. E., 692; *S. v. Fleming,*107 N. C., 905, 12 S. E., 131. It has been said, however, that in such a case, a verdict of burglary in the second degree, if returned by the jury, would be permitted to stand, notwith*617standing evidence of occupancy of the dwelling house at the time of the alleged offense. *S. v. Smith,*201 N. C., 494, 160 S. E., 577. And this upon the principle that the verdict, being favorable to the prisoner may not, for this reason, be successfully challenged by him. *S. v. Alston, supra.*Here, all the evidence establishes the actual occupation of the dwelling house at the time of the offense. *S. v. McKnight,*111 N. C., 690, 16 S. E., 319. This precluded the court from submitting the case to the jury on the charge of burglary in the second degree as defined by C. S., 4332. *S. v. Spain, supra,*and cases there cited. Speaking to the question in *S. v. Ratcliff, supra,*it was said: 'There is no evidence on the present record of burglary in the second degree as defined by C. S., 4232, unless the jury disbelieve the evidence relating to occupancy. *S. v. Alston,*113 N. C., 666, 18 S. E., 692. All the evidence tends to show that the dwelling house was actually occupied at the time of the alleged offense. Hence, under these conditions, according to our previous decisions, an instruction that the jury may render a verdict of burglary in the second degree, “if they deem it proper to do so” (O. S., 4641), would be erroneous, though a verdict of burglary in the second degree, if returned by the jury, would be permitted to stand, such a verdict, under the circumstances, being regarded as favorable to the prisoner. *S. v. Fleming, supra; S. v. Alston, supra.*This may seem somewhat illogical, in view of C. S., 4640 and 4641, nevertheless it is firmly established by a number of decisions.’ ” "We think this case is authority for the additional charge after the jurors’ request, and the exception and assignment of error made by defendant cannot be sustained. The *Morris case, supra,*is approved in all particulars in the last case on the subject. *S. v. Chambers, ante,*442, filed 7 November, 1940.

The court below correctly charged the jury as to the rights of defendant to satisfy the jury “that at that time he was too drunk, too deeply under the influence of intoxicants, to make it possible to form a felonious intent to commit a felony therein, it would be your duty to render a verdict of not guilty of burglary in the first degree,” etc. The court had theretofore in the charge followed the decisions of this Court when drunkenness was a defense for crime. This, and no other part of the charge, was excepted to. The evidence, direct and circumstantial, which we fully set out, is overwhelming that defendant committed the crime. He himself said: “In this crime here, breaking in Mrs. Currie’s house, I don’t remember about them catching me. I have admitted it, and I didn’t do it until after they had caught me redhanded.”

It appears from the record that defendant’s sole defense was based on drunkenness. He had the benefit of a clear and correct charge on that aspect. The evidence disclosed that defendant had a fair and impartial *618trial from a judge wbo carefully followed tbe decisions of this Court on every aspect of the case and applied the law applicable to the facts.

The law as stated in this opinion has been the well-settled law in this State since *S. v. Fleming,*107 N. C., 905 (1890)—for half a century— and has been followed ever since in numerous decisions, with no modification or equivocation by any member of this Court. Public Laws of 1889, ch. 434, was construed in that opinion. At p. 909, in a unanimous opinion of the Court, it was written: “We do not understand the provisions of the statute that, on an indictment for burglary in the first degree, the jury can return a verdict of burglary in the second degree; ‘if they deem it proper so to do/ to make such verdict independent of all evidence. The jury are sworn to find the truth of the charge, and the statute does not give them a discretion against the obligation of their oaths. The meaning of this provision evidently is to empower the jury to return a verdict of guilty of burglary in the second degree upon a trial for burglary in the first degree, if they deem it proper so to do from the evidence, and to be the truth of the matter.”

The defendant admitted that he was caught “redhanded,” breaking and entering a home after midnight and attempting to commit rape and did commit larceny. The State’s evidence was to the effect that he was “perfectly sober” and his actions indicated it. In the breaking and entering he showed intelligent care in the manner of his approach.

For the reasons given, we find

No error.

DeviN, J.,

concurring: This case was tried below in strict accord with the uniform decisions of this Court. The evidence was fully sufficient to warrant the verdict. The dwelling house of the prosecuting witness, then and there occupied by him and his wife, was broken and entered in the nighttime (about 3 :00 a.m.) by the defendant, with intent to commit a felony. Property was stolen and an assault attempted on the person of prosecutor’s wife. The defendant was positively identified, the stolen property found in his possession, and he confessed his guilt.

The defendant excepted to the failure of the presiding judge to instruct the jury that they could return a verdict of guilty of burglary in the second degree. The statute dividing the crime of burglary into two degrees, C. S., 4232, provides, in effect, that if the crime of burglary, as defined at common law, be committed “in a dwelling-house not actually occupied by anyone at the time of the commission of the crime . . . it shall be burglary in the second degree.” Thus was created a separate and distinct criminal offense.

By O. S., 4641, it is provided that when the indictment is for burglary in the first degree, “the jury may render a verdict of guilty of burglary *619in the second degree if they deem it proper so to do.” This statute, sec. 3, eh. 434, Public Laws 1889, was interpreted by this Court in 1890, shortly after its enactment, in *S. v. Fleming,*107 N. C., 905, 12 S. E., 131, where, in an opinion by *Chief Justice Clark,*it was said: “The meaning of this provision evidently is to empower the jury to return a verdict of guilty of burglary in the second degree upon a trial for burglary in the first degree, if they deem it proper so to do from the evidence, and to be the truth of the matter.” The Court did not interpret the statute as authorizing an instruction to the jurors that they might find contrary to the evidence in the case and contrary to their oaths as jurors “to render a true verdict according to the evidence.”

This interpretation of this statute has been adhered to without exception down to and including *S. v. Fain,*216 N. C., 157, 4 S. E. (2d), 319, where the same point was raised and it was said, “The pertinent decisions are to the effect that this statute (C. S., 4641) does not, as a matter of law, require or authorize the trial court to instruct the jury that such a verdict may be rendered independently of all the evidence.” And in *S. v. Morris,*215 N. C., 552, 2 S. E. (2d), 554, it was held by a unanimous Court that the trial judge committed no error in refusing to instruct the jury in the exact language of section 4641.

But the defendant relies mainly on his exception to the statement of the judge in reference to a question by a member of the jury. The question was, “If we find that he was intoxicated, can we return a verdict of second degree burglary ?” The answer was, “No, sir. . . . There is no evidence in this case to support a verdict of second degree burglary. Second degree burglary is where the breaking and entering with intent to commit a felony is at a time when nobody is occupying the house.”

The significance of this colloquy is understood when it is remembered the only defense of the defendant was that he was intoxicated and didn’t know what he was doing. In his charge, and in response to further inquiry by the jury, the judge correctly and fully instructed the jury upon the law relating to intoxication as affecting responsibility for crime. He also instructed the jury as to possible verdicts of attempt to commit burglary in the first degree, and as to nonburglarious breaking and entering. But he distinctly, and I think properly, instructed them that there was no evidence of burglary in the second degree, for the very patent reason that the house was in fact occupied at the time of the breaking and entering, as shown by all the evidence.

I think the defendant was convicted according to law, and that there was no error in the trial.

ScheNck, J., joins in this opinion.

*620Stacy, C. J\,

dissenting: The issues tere involved are fundamental. The prisoner avers that a statute stands between him and the verdict finally rendered by the jury. Its application is invoked. "What is the answer ?

Our previous decisions are to the effect, that on an indictment for burglary in the first degree, the *defendant*is not entitled as a matter of right to have the case submitted to the jury on the charge of burglary in the second degree unless there is evidence to support the milder verdict. C. S., 4640. *S. v. Johnston,*119 N. C., 883, 26 S. E., 163; *S. v. Cox,*201 N. C., 357, 160 S. E., 358; *S. v. Morris,*215 N. C., 552, 2 S. E. (2d), 554. This is far from saying, however, that in such a case, the *jury*may not render a verdict of burglary in the second degree “if they deem it proper so to do.” Both the legislative will as expressed in the statute, C. S., 4641, and the pertinent decisions on the subject are to the contrary. *S. v. Alston,*113 N. C., 666, 18 S. E., 692; *S. v. Fleming,*107 N. C., 905, 12 S. E., 131. Silence and misdirection are not the same, either in meaning or in effect.

Indeed, it may be doubted whether in any conviction of burglary in the first degree the evidence would not also support a charge of burglary in the second degree, considering the differences between the two offenses. *S. v. Alston, supra; S. v. Ratcliff,*199 N. C., 9, 153 S. E., 605. The statute dividing burglary into two degrees, first and second, and the above section are all parts of the same act, ch. 434, Public Laws 1889. C. S., 4232 and 4233; *S. v. Foster,*129 N. C., 704, 40 S. E., 209. But however this may be, to say the statute is applicable only when the character of the house, or its occupancy, or both, are debatable issues is to ignore its terms altogether. When there is evidence of a milder verdict, C. S., 4640, applies, and there is then no need to invoke the provisions of C. S., 4641.

What the jury here wanted to know was whether it could return a verdict of burglary in the second degree. The court answered in effect, “No, you are not permitted to render such a verdict on the evidence in the case.” This was erroneous. The rights of the defendant in the first instance and the prerogatives of the jury are perhaps not the same, albeit they may in the end become one and the same. The jury, upon its own inquiry, was entitled to know the provisions of the statute and its prerogatives in the matter. *Ita lex scripta est.*Had the jury returned a verdict of burglary in the second degree without making the inquiry, it would have been legally acceptable. *S. v. Alston, supra; S. v. Fleming, supra.*Yet because of the inquiry, the jury is denied the advisability which the General Assembly has said it shall have.

Furthermore, if we are to adhere to the significance sometimes imputed to C. S., 564, the court’s reply would seem to carry an expression *621of opinion that the character and occupancy of the house had been sufficiently established. *S. v. Starnes, ante,*539.

A jury is not required to assign any reason for its verdict. Nor is it obliged to be logical. It ill behooves the Court, in its present illogical position, to require consistency of the jury.

The verdict which the jury sought to render was within the terms of the statute, C. S., 4641, which provides that “When the crime charged in the bill of' indictment is burglary in the first degree, the jury may render a verdict of guilty of burglary in the second degree if they deem it proper so to do.” Hence, the overshadowing question here presented is whether a statute, which has never been declared unconstitutional and is not now challenged, can be set at naught or disregarded in a capital case, when its provisions are duly and appropriately invoked. My vote is for a negative answer.

BabNhill, J.,

dissenting: While I concur in what *Stacy, C. J.,*says in his dissenting opinion, the question here presented is of such import that I feel impelled to comment further. There is more involved than the life of the defendant, vital as that may be. This Court, in *S. v. Johnston,*119 N. C., 883, to a large extent, emasculated the statute under consideration. Now it proposes to reduce it to a mere shadow, without life, meaning or substance. In so doing it ventures into the field of legislation and invades the province of the General Assembly. This we should painstakingly refrain from doing.

In applying the act this Court originally held — with a logic I do not desire to attempt to defend — that, in the absence of evidence tending to show burglary in the second degree, the judge is not required to instruct a jury that it may return a verdict of burglary in the second degree “if they deem it proper so to do,” *S. v. Johnston, supra.*This Court has since followed that interpretation of the statute to the end that there may be a reasonable degree of certainty in the law.

But there is a decided difference between a failure to charge and a positive instruction in direct contradiction of the statute. They are as alike as chalk and cheese. The former decisions are not in point or controlling. And, in arriving at a proper conclusion, we are unhampered by precedent.

Formerly, in any prosecution under a bill charging a capital felony, the jury was required, upon the requisite proof and finding, to return a verdict which made the death penalty compulsory. The Legislature saw fit to change this rule in cases where burglary in the first degree is charged. Now, under C. S., 4641, the jury may return either one of two verdicts *on the same*— not *different*— ■proof *and finding.*Being fully satisfied of the existence of every essential element necessary to *622constitute the crime designated as burglary in the first degree, it may yet “if they deem it wise so to do” elect to return a verdict of burglary in the second degree. This is the law as written by the Legislatui’e. Our province is to interpret and apply the law — not to veto or to nullify.

What motivates the jury and causes it to deem it wise to return the milder verdict is immaterial. It may be a desire to be merciful, or there may be some lingering doubt as to some feature of the evidence, or a repulsion against capital punishment, or as here, a mitigating circumstance which, while not sufficient to warrant complete exculpation, tends to lessen the gravity of the offense. *Non constat*the existence of every essential element of burglary in the first degree, a verdict of guilty of burglary in the second degree is lawful. It being the law, the jury had a right, at least upon its own request for information, to know its authority.

While this Court has properly and repeatedly disapproved the theory that the degree of guilt may be determined arbitrarily in the discretion of the jury without regard to the facts, in evidence, there was here no attempt on the part of the jury to exercise discretion against 'the obligation of its oath. It is expressly authorized, upon the findings of fact which constitute burglary in the first degree as defined in the statute, to return a verdict of burglary in the second degree. Thus the jury was seeking to return a verdict expressly authorized by statute upon the facts found.

Nor can the charge be sustained on the theory that there was no evidence to support a verdict of burglary in the second degree. To prove burglary in the first degree, of necessity, the State must first prove all the essential elements of burglary in the second degree. Thus, it is no more logical to hold that upon a bill of indictment charging murder in the first degree the jury may return a verdict of guilty of murder in the second degree than it is to say that upon an indictment of this type the jury may return a verdict of burglary in the second degree. Furthermore, how may it be said that the jury was not warranted in returning a verdict of burglary in the second degree and at the same time to hold that it was authorized under its oath to return a verdict of guilty of an attempt to commit the crime of burglary, thus finding that the defendant did not enter the dwelling house; or a verdict of a non-burglarious breaking, thus finding that the building was not a dwelling?

The case comes to this: the jury found facts which constituted the crime of burglary in the first degree as defined by the statute. It did not desire to return a verdict which entailed the death penalty. Neither did it wish to return a verdict of one of the lesser degrees defined by the court and thus stultify itself. It sought information as to its rights and in reply to its inquiry received instructions from the court in direct *623contradiction of the statute. Pursuant to this charge, upon the facts found by it, the jury returned the verdict which appears of record.

That this charge was harmful is apparent. It will cost the defendant his life. If it was likewise erroneous, as I contend that it was, the defendant should be awarded a new trial.

WiNBORNE, J.,

concurs in the dissents of *Stacy, C. J.,*and *Barnhill, J.,*and adds the following:

Are the courts at liberty to disregard the provisions of a statute when its provisions are properly invoked ? No, but in my opinion, the decision in this case has the effect of doing that very thing.

It is noted that C. S., 4641, as originally enacted, was section 3 of chapter 434 of Public Laws of 1889, entitled “An act to amend the law of burglary.” Now, in order to ascertain what the Legislature intended by that section, let us see the act, and the situation at the time.

When this act was proposed the Legislature was faced with the law with respect to burglary as it then existed: (1) The common law crime of burglary, and (2) the statutory crime, that is, the statute which provides that “If any person shall enter the dwelling house of another with intent to commit any felony or other infamous crime therein, or being in such dwelling house, shall commit any felony or other infamous crime therein, and shall, in either case, break out of said dwelling house, in the nighttime, such person shall be guilty of burglary.” The Code of North Carolina, 1883, sec. 995.

And, as a punishment, the law then provided that: “Any person convicted, according to due course of law, of the crime of burglary, shall suffer death.” The Code of N. C., 1883, sec. 994.

Confronted with the law that any conviction of burglary carried the death penalty, the Legislature of 1889 passed the act, chapter 434, which reads as follows:

> “Section 1. That there shall be two degrees in the crime of burglary as defined at the common law and in section nine hundred and ninety-five of the Code of North Carolina. If the crime be committed in a dwelling house, or in a room used as a sleeping apartment in any building, and any person is in the actual occupation of any part of said dwelling house or sleeping apartment at the time of the commission of said crime, it shall be burglary in the first degree. Second. If the said crime be committed in a dwelling house or sleeping apartment not actually occupied by anyone at the time of the commission of the crime, or if it be committed in any house within the curtilage of a dwelling house or in any building not a dwelling house, but in which is a room used as a sleeping apartment and not actually occupied as such at the *624time of the commission of said crime, it shall be burglary in the second degree.

> “Section 2. That section nine hundred and ninety-four of the Code of North Carolina be amended so as to read as follows: “Any person convicted, according to due course of law, of the crime of burglary in the first degree shall suffer death; and anyone so convicted of burglary in the second degree shall suffer imprisonment in the State’s Prison for life, or for a term of years, in the discretion of the court.”

> “Section 3. That when the crime charged in the bill of indictment is burglary in the first degree, the jury may render a verdict of guilty of burglary in the second degree *if they deem it proper so to do.”*

These several sections of this act remained intact until the adoption of the Revisal of 1905, when sections 1 and 2 became parts of chapter 81, entitled “Crimes,” and were designated as sections 3331 and 3330, respectively. Upon the adoption of the Consolidated Statutes of North Carolina, 1919, these sections were incorporated in and as a part of chapter 82, entitled “Crimes and Punishments,” and are now Consolidated Statutes, sections 4232 and 4233.

But in the Revisal of 1905, section 3 of the said Act of 1889 was transferred to and became a part of chapter 80 on “Criminal Procedure,” pertaining to trials in the Superior Court, and was designated as section 3270, and in like manner became a part of C. S. of North Carolina, 1919, on “Criminal Procedure,” chapter 83, section 4641.

For more than fifty years this statute, now C. S., 4641, has stood in the books in bold relief. The language' of it is plain and free from ambiguity and expresses a single, definite and sensible meaning, a meaning which under the settled law in this State is conclusively presumed to be the one intended by the Legislature. *Asbury v. Albemarle,*162 N. C., 247, 78 S. E., 146; *Mfg. Co. v. Turnage,*183 N. C., 137, 110 S. E., 779; 44 L. R. A., N. S., 1189; *Motor Co. v. Maxwell,*210 N. C., 725, 188 S. E., 389.

Defendants in other cases have undertaken in vain as a matter of right to invoke its provisions, but not until the present case has the jury in effect asked if there is such a provision in the law. I think the jury is entitled to know it.

Here the dual inquiry by the jury on its return to the courtroom for further instruction is significant. The jury wished to know, first, to what extent must the defendant have been intoxicated before it could find him to be not responsible for his acts, that is, not guilty. And, then, if the jury should find that he were not intoxicated to that extent, but did find that he was in fact intoxicated at the time of the commission of the crime, could it return a verdict of burglary in the second degree.

*625Tbe inquiry is tantamount to tbe jury saying to tbe court: “Is there a statute or provision of law whereby under tbe circumstances of this case we could render a verdict of second degree burglary if we deem it proper so to do?” Never before has this Court considered a like question from tbe jury.

It is apparent that tbe jury was groping to find a way within tbe law under tbe circumstances of this case for a verdict which would save tbe life of tbe defendant. Tbe Legislature has provided it in C. S., 4641.

It is argued here with logic that if tbe court below was correct in telling tbe jury that it positively could not do what tbe statute says it could do, tbe court is in tbe anomalous position of saying that it is all right for a jury to exercise tbe right given by tbe statute provided it does not know tbe right exists, but when tbe jury asks tbe court if that right exists, it is proper for tbe court in reply to use language which denies existence of tbe statute.

This pertinent question is also forcefully presented: “Supposing tbe jury, in asking tbe court tbe question which it did, bad used just a little different language, but meaning tbe same thing, and have said to tbe court: ‘Does not section 4641 of C. S. of North Carolina provide that when tbe crime charged in tbe bill of indictment is burglary in tbe first degree, tbe jury may render a verdict of burglary in tbe second degree, if they deem it proper so to do?’ and supposing the court bad answered that question, ‘No, sir’; would be have committed reversible error?” I bold to tbe view that to let such answer stand as tbe law removes from tbe statute tbe last vestige of meaning, and in effect nullifies it.

> “No person ought to be . . . deprived of bis life . . . but by tbe law of tbe land.” Const, of North Carolina, Art. I, sec. 17.