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.