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.