The first question involved, as stated by defendant: Did the court err in allowing witnesses to testify to conversations with the chief prosecuting witness in the absence of defendant? We think not. As to this question, “It is addressed to the refusal of the court to sustain defendant’s objection to conversations had between Mrs. Currie and the witnesses, Littleton and Sheriff Wade, in the absence of defendant. This was hearsay testimony and if it was offered as corroborative evidence, it should have been limited to that purpose by the court and not offered as substantive evidence, as it was.”

*613Rules of Practice in tbe Supreme Court, part of Rule 21 (213 N. C., p. 821): “When testimony is admitted, not as substantive evidence, but in corroboration or contradiction, and that fact is stated by tbe court wben it is admitted, it will not be ground for exception that tbe judge fails in bis charge to again instruct tbe jury specially upon tbe nature of sucb evidence, unless bis attention is called to tbe matter by a prayer for instruction; nor will it be ground of exception that evidence competent for some purposes, but not for all, is admitted generally, unless the appellant aslcs, at the time of its admission, that its purpose shall be restricted(Italics ours.)

In tbe corroborating testimony of Mrs. Robt. L. Littleton, tbe court instructed tbe jury: “Consider tbis, gentlemen, only for tbe purpose of corroborating Mrs. Currie, if you find it does corroborate her.” Tbe testimony of Mr. Littleton and Sheriff Wade, we tbinb, comes under tbe latter part of tbe above rule. At least, we can see no prejudicial error. Tbe exception and assignment of error cannot be sustained. -

Tbe defendant says in bis brief: “However, defendant relies mainly upon wbat be contends to be tbe error of tbe court, set out in defendant’s Exception I. Tbe jury, after deliberating for some time, returned to tbe courtroom and asked tbe court tbis direct question, Tf we find that be was intoxicated, can we return a verdict of second degree burglary?’ Tbe court replied, ‘No, sir. I instructed you that you could only find tbe defendant guilty of burglary in tbe first degree, or guilty of attempt to commit burglary in tbe first degree, or guilty of breaking and entering otherwise than by burglarious, or guilty of an attempt to break and enter otherwise than burglariously.’ Tbe charge of tbe court, in response to tbe direct question of tbe jury, was tantamount to a nullification of section 4641, C. S., which says that ‘When tbe crime charged in tbe bill of indictment is burglary in tbe first degree, tbe jury may render a verdict of guilty of burglary in tbe second degree, if they deem it proper so to do.’ ”

We'give the entire record of wbat took place: “After some deliberation tbe jury returns to tbe courtroom and asks for further instructions by tbe court. By juror: ‘We would like to know a little further with reference to tbis drunk or intoxicating phase of tbe law.’ By tbe court: ‘Wbat further information as a matter of law do you desire?’ (By juror): ‘Now if be was intoxicated, wbat degree would be have to be intoxicated to be held responsible for bis conduct?’ By court: ‘I tbinb I instructed you that tbe degree of intoxication would have to be such as would make it impossible to form a felonious intent. That is a matter for tbe jury. In tbis case tbe defendant has testified and offered testimony which, be contends, tends to support him, that be was drunk to such an extent that be did not know where be was or wbat be was doing. *614Tbe State, on the other hand, has offered testimony tending to show that he was absolutely sober, so that that becomes — whether he was drunk enough — becomes a question of fact for the jury. Upon that defense it is incumbent upon the defendant — he pleads that as a defense — therefore, the burden is upon him to satisfy you, not beyond a reasonable doubt, nor by the greater weight of the testimony, but merely to satisfy you, that he was so drunk that he did not have the mental capacity to form a felonious intent, in this case the intent to commit either larceny or rape, after he got on the inside of the house, if he did get on the inside of the house. That is just about as clear- and definite as I know how to make it. If he were so drunk that he could not form a criminal intent, a felonious intent, then he could not be guilty.’ (By juror) : 'If we find that he was intoxicated, can we return a verdict of second degree burglary?’ (By the court) : 'No, sir. I instructed you that you could only find the defendant guilty of burglary in the first degree, or guilty of attempt to commit burglary in the first degree, or guilty of breaking and entering otherwise than by burglarious, or guilty of an attempt to break and enter otherwise than burglariously. There is no evidence in this case to support a verdict of second degree burglary. Second degree burglary is where the breaking and entering with intent to commit a felony, is at a time when nobody is occupying the house. It is second degree burglary for a person to break and enter a residence of any kind, in the nighttime while the house is unoccupied. All of the evidence in this case shows that particular house was occupied and, therefore, it could not be burglary in the second degree. There is not a scintilla of evidence nor contention that the house was unoccupied at the time. I do not submit it to you upon the question of second degree burglary at all. Now, does that help you any? Does that throw any further light upon it? You ivill just remember there are five verdicts in this case that you may render: You may find him guilty of burglary in the first degree, or you may find him guilty of an attempt to commit first degree burglary, or you may find him guilty of brealcing and entering otherwise than burglariously, or you may find him guilty of an attempt to break and enter otherwise than burglariously, or you may find him not guilty/ The jury returned a verdict of guilty of burglary in the first degree against defendant George A. Johnson.”

When we consider this exception and assignment of error made by defendant, we give what the court below had theretofore charged. The court charged the jury so clearly and ably the law applicable to the facts, in some 20 pages, that defendant took no exception and assigned no error.

N. 0. Code, 1939 (Michie), sec. 4232, is as follows: “There shall be two degrees in the crime of burglary as defined at the common law. *615If 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 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. If such 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 time of the commission of the crime, it shall be burglary in the second degree.”

Section 4233: “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.”

The court charged, after stating the crime as set forth in the bill of indictment: “Burglary at the common law was the breaking and entering of the mansion house or dwelling house of another in the nighttime with the intent to commit a felony therein. That was the definition of burglary under the law of this State until the year 1889, when by legislative enactment the crime was divided into two degrees, first and second. Under our statute thus dividing burglary into two degrees, burglary in the first degree is where the crime is 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 or sleeping apartment at the time of the commission of such crime. If such 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, but in which a room is used as a sleeping apartment and not actually occupied as such at the time of the commission of the crime, it shall be burglary in the second degree. "We have a statute in this State making it .a crime to break and enter a dwelling otherwise than burglariously, and that statute reads as follows: ‘If any person with intent to commit a felony or other infamous crime therein shall break or enter the dwelling house of another otherwise than by a burglarious breaking, he shall be guilty of a felony.’ (N. C. Code, 1939 [Michie], sec. 4235). The Supreme Court has held in a number of eases that where the evidence is sufficient to justify it upon the bill of indictment charging a defendant with burglary in the first degree, it is the duty and mandatory upon the court to submit to the jury the question of whether or not the defendant is guilty of breaking and entering *616the dwelling house in question at the time and place mentioned in the bill of indictment otherwise than burglariously, and that it is error for the court to fail or refuse to do so. So that, under the evidence in this case, the court charges you, gentlemen, that you may render one of several verdicts according as you may find the facts to be under the law that will be given to you in the course of the charge by the court for your guidance. You may find the defendant guilty of burglary in the first degree, or not guilty; you may find the defendant guilty of an attempt to commit burglary in the first degree, or not guilty; you may find the defendant guilty of brealcing and entering of the residence of Mr. Currie otherwise than by a burglarious breaking and entering, or not guilty; or you may find him guilty of an attempt to break and enter otherwise than burglariously the residence of Mr. Currie; or you may render a verdict of not guilty." In the charge the court below followed the law as laid down in this jurisdiction. He charged the law as theretofore written and reiterated in the recent case of S. v. Morris, 215 N. C., 552 (553), as follows: “The court instructed the jury that, under the evidence, only one of two verdicts might be rendered: ‘That is, you can find this defendant guilty of burglary in the first degree or not guilty.’ Exception. All other portions of the charge are admitted to be correct. In apt time, the defendant requested the following special instruction: ‘Our law provides (0. S., 4641) 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 to do so and I instruct you that you have the right to return a verdict of guilty of burglary in the second degree.’ Instruction refused; exception. Verdict: ‘Guilty as charged.’ Judgment: Death by asphyxiation. The defendant appeals, assigning errors. . . . (pp. 555-556). The only question debated on argument and in brief is whether the court committed error in refusing to submit the case to the jury on the charge of burglary in the second degree as requested by the prisoner in his prayer for special instruction. The authorities answer in the negative. S. v. Spain, 201 N. C., 571, 160 S. E., 825; S. v. Ratcliff, 199 N. C., 9, 153 S. E., 605. It is provided by C. S., 4641, that upon an indictment for burglary in the first degree, the jury may render a verdict of burglary in the second degree ‘if they deem it proper so to do.’ But this, according to our previous decisions, does not, as a matter of law, authorize the trial court to instruct the jury that such a verdict may be rendered independently of all the evidence. S. v. Johnston, 119 N. C., 883, 26 S. E., 163; S. v. Alston, 113 N. C., 666, 18 S. E., 692; S. v. Fleming, 107 N. C., 905, 12 S. E., 131. It has been said, however, that in such a case, a verdict of burglary in the second degree, if returned by the jury, would be permitted to stand, notwith*617standing evidence of occupancy of the dwelling house at the time of the alleged offense. S. v. Smith, 201 N. C., 494, 160 S. E., 577. And this upon the principle that the verdict, being favorable to the prisoner may not, for this reason, be successfully challenged by him. S. v. Alston, supra. Here, all the evidence establishes the actual occupation of the dwelling house at the time of the offense. S. v. McKnight, 111 N. C., 690, 16 S. E., 319. This precluded the court from submitting the case to the jury on the charge of burglary in the second degree as defined by C. S., 4332. S. v. Spain, supra, and cases there cited. Speaking to the question in S. v. Ratcliff, supra, it was said: 'There is no evidence on the present record of burglary in the second degree as defined by C. S., 4232, unless the jury disbelieve the evidence relating to occupancy. S. v. Alston, 113 N. C., 666, 18 S. E., 692. All the evidence tends to show that the dwelling house was actually occupied at the time of the alleged offense. Hence, under these conditions, according to our previous decisions, an instruction that the jury may render a verdict of burglary in the second degree, “if they deem it proper to do so” (O. S., 4641), would be erroneous, though a verdict of burglary in the second degree, if returned by the jury, would be permitted to stand, such a verdict, under the circumstances, being regarded as favorable to the prisoner. S. v. Fleming, supra; S. v. Alston, supra. This may seem somewhat illogical, in view of C. S., 4640 and 4641, nevertheless it is firmly established by a number of decisions.’ ” "We think this case is authority for the additional charge after the jurors’ request, and the exception and assignment of error made by defendant cannot be sustained. The Morris case, supra, is approved in all particulars in the last case on the subject. S. v. Chambers, ante, 442, filed 7 November, 1940.

The court below correctly charged the jury as to the rights of defendant to satisfy the jury “that at that time he was too drunk, too deeply under the influence of intoxicants, to make it possible to form a felonious intent to commit a felony therein, it would be your duty to render a verdict of not guilty of burglary in the first degree,” etc. The court had theretofore in the charge followed the decisions of this Court when drunkenness was a defense for crime. This, and no other part of the charge, was excepted to. The evidence, direct and circumstantial, which we fully set out, is overwhelming that defendant committed the crime. He himself said: “In this crime here, breaking in Mrs. Currie’s house, I don’t remember about them catching me. I have admitted it, and I didn’t do it until after they had caught me redhanded.”

It appears from the record that defendant’s sole defense was based on drunkenness. He had the benefit of a clear and correct charge on that aspect. The evidence disclosed that defendant had a fair and impartial *618trial from a judge wbo carefully followed tbe decisions of this Court on every aspect of the case and applied the law applicable to the facts.

The law as stated in this opinion has been the well-settled law in this State since S. v. Fleming, 107 N. C., 905 (1890)—for half a century— and has been followed ever since in numerous decisions, with no modification or equivocation by any member of this Court. Public Laws of 1889, ch. 434, was construed in that opinion. At p. 909, in a unanimous opinion of the Court, it was written: “We do not understand the provisions of the statute that, on an indictment for burglary in the first degree, the jury can return a verdict of burglary in the second degree; ‘if they deem it proper so to do/ to make such verdict independent of all evidence. The jury are sworn to find the truth of the charge, and the statute does not give them a discretion against the obligation of their oaths. The meaning of this provision evidently is to empower the jury to return a verdict of guilty of burglary in the second degree upon a trial for burglary in the first degree, if they deem it proper so to do from the evidence, and to be the truth of the matter.”

The defendant admitted that he was caught “redhanded,” breaking and entering a home after midnight and attempting to commit rape and did commit larceny. The State’s evidence was to the effect that he was “perfectly sober” and his actions indicated it. In the breaking and entering he showed intelligent care in the manner of his approach.

For the reasons given, we find

No error.

concurring: This case was tried below in strict accord with the uniform decisions of this Court. The evidence was fully sufficient to warrant the verdict. The dwelling house of the prosecuting witness, then and there occupied by him and his wife, was broken and entered in the nighttime (about 3 :00 a.m.) by the defendant, with intent to commit a felony. Property was stolen and an assault attempted on the person of prosecutor’s wife. The defendant was positively identified, the stolen property found in his possession, and he confessed his guilt.

The defendant excepted to the failure of the presiding judge to instruct the jury that they could return a verdict of guilty of burglary in the second degree. The statute dividing the crime of burglary into two degrees, C. S., 4232, provides, in effect, that if the crime of burglary, as defined at common law, be committed “in a dwelling-house not actually occupied by anyone at the time of the commission of the crime . . . it shall be burglary in the second degree.” Thus was created a separate and distinct criminal offense.

By O. S., 4641, it is provided that when the indictment is for burglary in the first degree, “the jury may render a verdict of guilty of burglary *619in the second degree if they deem it proper so to do.” This statute, sec. 3, eh. 434, Public Laws 1889, was interpreted by this Court in 1890, shortly after its enactment, in S. v. Fleming, 107 N. C., 905, 12 S. E., 131, where, in an opinion by Chief Justice Clark, it was said: “The meaning of this provision evidently is to empower the jury to return a verdict of guilty of burglary in the second degree upon a trial for burglary in the first degree, if they deem it proper so to do from the evidence, and to be the truth of the matter.” The Court did not interpret the statute as authorizing an instruction to the jurors that they might find contrary to the evidence in the case and contrary to their oaths as jurors “to render a true verdict according to the evidence.”

This interpretation of this statute has been adhered to without exception down to and including S. v. Fain, 216 N. C., 157, 4 S. E. (2d), 319, where the same point was raised and it was said, “The pertinent decisions are to the effect that this statute (C. S., 4641) does not, as a matter of law, require or authorize the trial court to instruct the jury that such a verdict may be rendered independently of all the evidence.” And in S. v. Morris, 215 N. C., 552, 2 S. E. (2d), 554, it was held by a unanimous Court that the trial judge committed no error in refusing to instruct the jury in the exact language of section 4641.

But the defendant relies mainly on his exception to the statement of the judge in reference to a question by a member of the jury. The question was, “If we find that he was intoxicated, can we return a verdict of second degree burglary ?” The answer was, “No, sir. . . . There is no evidence in this case to support a verdict of second degree burglary. Second degree burglary is where the breaking and entering with intent to commit a felony is at a time when nobody is occupying the house.”

The significance of this colloquy is understood when it is remembered the only defense of the defendant was that he was intoxicated and didn’t know what he was doing. In his charge, and in response to further inquiry by the jury, the judge correctly and fully instructed the jury upon the law relating to intoxication as affecting responsibility for crime. He also instructed the jury as to possible verdicts of attempt to commit burglary in the first degree, and as to nonburglarious breaking and entering. But he distinctly, and I think properly, instructed them that there was no evidence of burglary in the second degree, for the very patent reason that the house was in fact occupied at the time of the breaking and entering, as shown by all the evidence.

I think the defendant was convicted according to law, and that there was no error in the trial.

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.

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.

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.