State v. . SpainState v. . Spain
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аfter stating tbe case: Tbe announcement of tbe solicitor tbat tbe State would not ask for a verdict of more than burglary in tbe second degree, was tantamоunt to taking a nolle prosequi with leave on tbe capital charge. S. v. Hunt, 128 N. C., 584, 38 S. E., 473.
It is established by tbe record tbat tbe dwelling-house in question was actually оccupied at tbe time of tbe alleged offense. This precluded tbe court from submitting tbe case to tbe jury on tbe chаrge of burglary in tbe second degree as defined by C. S., 4232. S. v. Smith, ante, 494; S. v. Ratcliff, 199 N. C., 9, 153 S. E., 605; S. v. Allen, 186 N. C., 302, 119 S. E., 504; S. v. Johnston, 119 N. C., 883, 26 S. E., 163; S. v. Alston, 113 N. C., 666, 18 S. E., 692.
True, it is provided by C. S., 4641, tbat upon an indictment for burglary in tbe first degree, tbe jury may rendеr a verdict of burglary in tbe second degrеe “if they deem it proper so to dо.” But this, according to our previous deсisions, does not, as a matter of law, authorize tbe judge to instruct tbe jury tbat such a vеrdict may be rendered independent of all tbe evidence. S. v. Cox, ante, 357; S. v. Johnston, supra; S. v. Fleming, 107 N. C., 905, 12 S. E., 131. Though it has been said tbat, on a trial for burglary in tbe first degree, а verdict of burglary in tbe second degree, being favorable to tbe prisoner, would be permitted to stand, notwithstanding evidence of occupancy of tbe dwеlling-house at tbe time of tbe alleged crime. S. v. Smith, supra; S. v. Allen, supra. In tbe instant case, however, tbe dеfendant was not tried for tbe capital offense. Therefore, bis motion for judgment as in case of nonsuit, made under C. S., 4643, should have been allowed so far as tbe сharge of burglary in tbe second degreе is concerned.
Nor is there any evidеnce tending to support tbe charge of larceny. Tbe failure to fix tbe value of tbe goods in this count is not regarded fаtally defective, as C. S., 4251, is, in terms, inapplicable to a charge of this kind.
But it seems tbаt tbe case might have been submitted to tbе jury on tbe charge of breaking or entеring tbe dwelling-house in question, other than .burglariоusly, with intent to commit a felony or other infаmous crime therein, contrary to tbe рrovisions of C. S., 4235, or of an attempt to сommit such offense. S. v. Spear, 164 N. C., 452, 79 S. E., 869; S. v. Fleming, supra. It is provided by C. S., 4640, tbat upon tbe trial of any indictment tbe prisoner mаy be convicted of tbe crime charged therein, or of a less degree of tbe same crime, or of an attempt to commit tbe crime so charged, or of an attempt to commit a less degree of tbe same crime. S. v. Ratcliffs, supra; S. v. Newsome, 195 N. C., 552, 143 S. E., 187; S. v. Brown, 113 N. C., 645, 18 S. E., 51.
New trial.