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.