The appellant assigns as error:
1. Thе charge of the court to the jury that “all of the evidence of the State tends to show that the house was occupied at the time of the alleged crime. Therefore, in this case you can return only one of two verdicts: Guilty of burglary in the first degree, or not guilty.”
*445 2. The failure of the court to charge the jury that upon all the evidence one of three verdicts might be rendered by them, to wit: (1) Guilty of burglary in the first degree; (2) guilty of a nonburglarious breaking and entering of the dwelling house of another, with intent to commit a felony or other infаmous crime therein; or (3) not guilty— there being evidence from which the jury could infer that the entry of the person so entering might have been through an open window and therefore a nonburglarious entry.
"We are of opinion and hold that the assignments are well taken.
Thе crime of burglary, as defined at the common law, is by statute in this State divided into two degrees, burglary in the first degree and burglary in the second degree. C. S., 4232. The statute specifies that “if the crime be committed in a dwelling house, or in a room used'as a sleeping apartmеnt 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 such crime, it shall be burglary in the first degree.” The punishment for such crime is death.
There is another statute, C. S., 4235, which provides in part that “if any person, with intent to commit a felony or other infamous crime therein, shall break or enter . . . the dwelling house of another1 otherwise than by a burglarious breaking ... he shall be guilty of a felony, and shall be imprisoned in the State’s Prison or county jail not less than four months nor more than ten years.”
In this connection it is a well recognized rule of practice in this State, as is stated in
S. v. Allen,
Where the bill of indictment, as here, charges the breaking and entering, with intent to commit a dеsignated felony, and also charges the actual commission of said felony, “the prisoner” as is declared by this Court in
S. v. Allen, supra,
“may be cоnvicted of burglary in the first degree, or of burglary in the second degree, depending on whether or not the dwelling house was actually оccupied at the time, or of an attempt to commit either of said offenses, or he may be convicted of a nonburglа-rious breaking and entering of the dwelling house of another, under C. S., 4235, or of an attempt to commit said offense, though the State may fail to prove the commission of the felony as charged.
S. v. Fleming, 1
07 N. C., 905;
S. v. Spear,
In the presеnt case all of the evidence tends to show that the dwelling house was actually occupied at the time of the alleged crime. There is no evidence tending to show that the crime might have been committed under circumstances which would make it burglary in the second degree. All the evidence tends to show the actual commission of a felony in the dwelling house of J. L. Whaley as charged. There is no direct evidence as to how the entry was effected. There is evidence of tracks tending to show that the еntry into the dwelling house was effected by the raising of and through a window in the kitchen. There is also evidence tending to show that the window in the room in which Mrs. J. L. Whaley was asleep was open. There is also evidence tending to show that when discovered the man was in thе room where the window was open. Hence, the evidence in the case, and every inference fairly and reasonаbly to be drawn therefrom, are not such as to require the jury to find that the entry was effected by the raising of the kitchen window. In fact, it aрpears of record that the presiding judge considered that the evidence is such that the jury might fairly and reasonably infer that the entry was through the open window.
For, in stating the contentions of the defendant, the court told the jury, among other things, that: “The defendant on the other hand contends that the evidence is not sufficient to satisfy you of his guilt beyond •a reasonable doubt. He contends that in the first place the evidence is not sufficient to show beyond a reasonable doubt that whoever went in there broke with the meaning of the definition of burglary. He contends that one window was open, and that you could just as easily believe *447 that whoever went in went in through that window; or that under this evidence you should have some doubt as to whether all the windows were closed down firmly and that you might easily bеlieve that other windows were raised and open and that the fact that the officer found a stick under the west window with the stick edgewise under it indicated that that window was not closed down.” This contention is appropriate in considering whether the defendant bе guilty of a nonburglarious breaking and entering of the dwelling house of J. L. Whaley, with intent to commit a felony or other infamous crime therein.
It was, therefore, error to limit the jury to one of two verdicts, burglary in the first degree, or not guilty.
Under the present bill of indictment and the evidence disclosed of record, the jury should be instructed that one of three verdicts may be rendered by it, depending upon how it finds the faсts to be: (1) Guilty of burglary in the first degree; (2) guilty of a nonburglarious breaking and entering of the dwelling house of another, with intent to commit a felony оr other infamous crime therein; or (3) not guilty.
Though the crime charged be atrocious, the life and liberty of the prisoner are at stake, and he is entitled to have the different views presented to the jury under a proper charge.
For error designated, let there be a
New trial.