concurs in the dissents of Stacy, C. J., and Barnhill, J., and adds the following:
Are the courts at liberty to disregard the provisions of a statute when its provisions are properly invoked ? No, but in my opinion, the decision in this case has the effect of doing that very thing.
It is noted that C. S., 4641, as originally enacted, was section 3 of chapter 434 of Public Laws of 1889, entitled “An act to amend the law of burglary.” Now, in order to ascertain what the Legislature intended by that section, let us see the act, and the situation at the time.
When this act was proposed the Legislature was faced with the law with respect to burglary as it then existed: (1) The common law crime of burglary, and (2) the statutory crime, that is, the statute which provides that “If any person shall enter the dwelling house of another with intent to commit any felony or other infamous crime therein, or being in such dwelling house, shall commit any felony or other infamous crime therein, and shall, in either case, break out of said dwelling house, in the nighttime, such person shall be guilty of burglary.” The Code of North Carolina, 1883, sec. 995.
And, as a punishment, the law then provided that: “Any person convicted, according to due course of law, of the crime of burglary, shall suffer death.” The Code of N. C., 1883, sec. 994.
Confronted with the law that any conviction of burglary carried the death penalty, the Legislature of 1889 passed the act, chapter 434, which reads as follows:
“Section 1. That there shall be two degrees in the crime of burglary as defined at the common law and in section nine hundred and ninety-five of the Code of North Carolina. If 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 the actual occupation of any part of said dwelling house or sleeping apartment at the time of the commission of said crime, it shall be burglary in the first degree. Second. If the said 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 *624time of the commission of said crime, it shall be burglary in the second degree.
“Section 2. That section nine hundred and ninety-four of the Code of North Carolina be amended so as to read as follows: “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.”
“Section 3. 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.”
These several sections of this act remained intact until the adoption of the Revisal of 1905, when sections 1 and 2 became parts of chapter 81, entitled “Crimes,” and were designated as sections 3331 and 3330, respectively. Upon the adoption of the Consolidated Statutes of North Carolina, 1919, these sections were incorporated in and as a part of chapter 82, entitled “Crimes and Punishments,” and are now Consolidated Statutes, sections 4232 and 4233.
But in the Revisal of 1905, section 3 of the said Act of 1889 was transferred to and became a part of chapter 80 on “Criminal Procedure,” pertaining to trials in the Superior Court, and was designated as section 3270, and in like manner became a part of C. S. of North Carolina, 1919, on “Criminal Procedure,” chapter 83, section 4641.
For more than fifty years this statute, now C. S., 4641, has stood in the books in bold relief. The language' of it is plain and free from ambiguity and expresses a single, definite and sensible meaning, a meaning which under the settled law in this State is conclusively presumed to be the one intended by the Legislature. Asbury v. Albemarle, 162 N. C., 247, 78 S. E., 146; Mfg. Co. v. Turnage, 183 N. C., 137, 110 S. E., 779; 44 L. R. A., N. S., 1189; Motor Co. v. Maxwell, 210 N. C., 725, 188 S. E., 389.
Defendants in other cases have undertaken in vain as a matter of right to invoke its provisions, but not until the present case has the jury in effect asked if there is such a provision in the law. I think the jury is entitled to know it.
Here the dual inquiry by the jury on its return to the courtroom for further instruction is significant. The jury wished to know, first, to what extent must the defendant have been intoxicated before it could find him to be not responsible for his acts, that is, not guilty. And, then, if the jury should find that he were not intoxicated to that extent, but did find that he was in fact intoxicated at the time of the commission of the crime, could it return a verdict of burglary in the second degree.
*625Tbe inquiry is tantamount to tbe jury saying to tbe court: “Is there a statute or provision of law whereby under tbe circumstances of this case we could render a verdict of second degree burglary if we deem it proper so to do?” Never before has this Court considered a like question from tbe jury.
It is apparent that tbe jury was groping to find a way within tbe law under tbe circumstances of this case for a verdict which would save tbe life of tbe defendant. Tbe Legislature has provided it in C. S., 4641.
It is argued here with logic that if tbe court below was correct in telling tbe jury that it positively could not do what tbe statute says it could do, tbe court is in tbe anomalous position of saying that it is all right for a jury to exercise tbe right given by tbe statute provided it does not know tbe right exists, but when tbe jury asks tbe court if that right exists, it is proper for tbe court in reply to use language which denies existence of tbe statute.
This pertinent question is also forcefully presented: “Supposing tbe jury, in asking tbe court tbe question which it did, bad used just a little different language, but meaning tbe same thing, and have said to tbe court: ‘Does not section 4641 of C. S. of North Carolina provide that when tbe crime charged in tbe bill of indictment is burglary in tbe first degree, tbe jury may render a verdict of burglary in tbe second degree, if they deem it proper so to do?’ and supposing the court bad answered that question, ‘No, sir’; would be have committed reversible error?” I bold to tbe view that to let such answer stand as tbe law removes from tbe statute tbe last vestige of meaning, and in effect nullifies it.
“No person ought to be . . . deprived of bis life . . . but by tbe law of tbe land.” Const, of North Carolina, Art. I, sec. 17.