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.