The special instructions which were asked, by defendant’s counsel were all given by the court. The first exception to the charge was in these words: “For that the Judge failed to instruct the jury in accordance with the Act of Assembly of 1889, Oh. 434, p. 418 ; that when the crime charged in the bill of indictment is burglary in the first degree, the jury may render a verdict in the second degiee if they deem it proper to do so.” That statute provides that “ if the crime be committed in *896a dwelling bouse or in a room used as a sleeping apartment, and'any person is in the actual occupation of any part of said dwelling bouse or sleeping apartment at the time of the commission of said crime, it shall be. burglary in the first degree.” Shields, a witness for the State, testified that at the time of the burglary he and his wife and daughter were occupying rooms in the house ; that he was sleeping in a room on the first floor and his wife and daughter were sleeping in a room upstairs. Upon thistes-timony, if the jury believed it, the defendant was guilty of burglary in the first degree. There was no proof tending to show that the burglary might have been committed under circumstances which would make it burglary in the second degree under the statute. If his Honor had charged as he was requested, it would have been error. In State v. Alston, 113 N. C., 666, the court charged the jury “ that although the evidence -was that the family were present in the house at the time of the commission of the crime” they might find the prisoner guilty of burglary in the first degree or guilty of burglary in the second degree. This court held that the charge was erroneous, and said : “ The court should have charged the jury that if they believed from the evidence that the family were present in the house at the time of the felonious entry, as charged, they should convict the defendant of burglary in the first degree. Under such circumstances the jury are not vested with the discretionary power to convict of burglary in the second degree.” In State v. Fleming, 107 N. C. 905, the court in construing the Act of 1889 said : “ 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 *897degree, if they cleem it proper so to do from tbe evidence, and to be the truth of the matter.” His Honor charged the jury that there were two counts in the bill of indictment., one for the breaking and entry with the intent to commit larceny, the other with the intent to commit murder. The defendant excepted to that part of the charge because, as he alleged, the second count was not for burglary, but for a felonious assault, after the commission of the burglary charged in the first count. We are of the opinion that the second count is a good one for burglary. It avers that the defendant, &c., having so burglariously as aforesaid broken and entered the said dwelling house of the said A. C. Shields, then and there upon the said Shields in the said dwelling house then and there being, unlawfully, maliciously, secretly and feloniously did make an assault with a deadly weapon, to-wit a pistol, and him the said Shields did shoot &c. with intent him the said Shields by the means aforesaid, then and there feloniously of his malice aforethought to kill and murder contrary, &c.” This is not the form in common use in North Carolina, but it is one approved by most of the standard writers on criminal law. The intent must usually be stated, and it must be to commit a felony; and if a felony has been actually committed in the house the intent may be and usually is stated to have been to commit that felony. “ But it seems that an indictment for burglary may in this respect be drawn in three ways : Stating the breaking and entry to be with intent to commit a felony ; or stating the breaking and entry, and a felony actually committed; or stating the breaking and entry with intent to commit a felony, and also stating the felony to have been actually committed. The latter is the preferable mode and that always adopted in practice ; for, if you fail to prove the felony committed, you may still convict of the burglary, or if you fail to prove the *898intent, &c., yon may convict of the felony.” Archbold Cr. Prac. & PL, Vol. 2, p. 1076. And to the same effect is Section 818, of Yolnme 1 of Wharton’s Criminal Law, 2 East P. C., 514 ; 2 Russell on Or., 44; 1 Hale P. C., 559 ; Code, Sec. 1183.
The defendant’s third exception to the charge was that his Honor failed to comply with the requirements of Section 413 of The Code. We have examined carefully the charge, and we think that the testimony was orderly and plainly and correctly set forth and the law applied as the statute requires. It is a very clear charge, and quite as full as is usually given. The defendant had his case clearly and fairly committed by his Honor to the jury. We have examined each and every exception to the evidence, and they cannot be sustained.
The exception to the manner of polling the jury, and the one to the overruling of the motion in arrest of judgment, need not now be discussed, for they are of no consequence after our decision sustaining the sufficiency of the second count in the bill of indictment.
No Error.