The opinion
Stagy, C. J.,
after stating the case: In considering a case of burglary, attention should first be given to the form of the bill of indictment, which may be drawn in one of three ways: First, by charging the breaking and entry to be with intent to commit a designated felony, second, by charging the breaking and entry, and a designated felony actually committed; and, third, by charging the breaking and entry, with intent to commit a designated felony, and also charging the actual commission of said designated felony.
S. v. Allen,
186 N. C., 302 , 119 S. E., 504 .
The form of the present bill follows the first method above mentioned, and under it the prisoner may be convicted of burglary in the first degree, or of burglary in the second degree, depending on whether or not the dwelling-house was actually occupied at the time, or of an attempt to commit either of said offenses, or he may be convicted of breaking or entering the dwelling-house in question, other .than burglariously, contrary to the provisions of C. S., 4235, or of an attempt to commit said offense, or he may be acquitted.
S. v. Fleming,
107 N. C., 905 , 12 S. E., 131 ;
S. v. Spear,
164 N. C., 452 , 79 S. E., 869 . It is provided by C. S., 4640, that upon the trial of any indictment the prisoner may be convicted of the crime charged therein, or of a less degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a less degree of the same crime.
S. v. Brown,
113 N. C., 645 , 18 S. E., 51 .
There is no evidence on the present record of burglary in the second degree as defined by O. 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, and the prisoner is not now challenging the correctness of these decisions.
But where it is permissible under the indictment to convict the defendant of a less degree of the same crime, or of an attempt, as illustrated
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by numerous decisions, and there is evidence tending to support a milder verdict, the prisoner is entitled to have the different views, arising on the evidence, presented to the jury under a proper charge, and an error in this respect is not cured by a verdict convicting the defendant of the highest offense charged in the bill of indictment, for, in such case, it cannot be known whether the jury would have rendered a milder verdict, if the different views, arising on the evidence, had been correctly presented. S
. v. Newsome,
195 N. C., 552 , at page 566, 143 S. E., 187 .
It was error, therefore, in the instant case to limit the jury to one of two verdicts — burglary in the first degree or not guilty. Rather it would seem that one of five verdicts, depending, of course, on the facts as established by the evidence, should have been submitted as the correct latitude: (1) Guilty of burglary in the first degree; (2) guilty of an attempt to commit burglary in the first degree; (3) guilty of breaking or entering the house in question, other than burglariously, with intent to commit rape or other infamous crime therein; (4) guilty of an attempt to break or enter the house in question, other than bur-glariously, with intent to commit rape or other infamous crime therein; or (5) not guilty.
S. v. Allen, supra; S. v. Spear, supra.
Again, it may be doubted as to whether the verdict, “guilty as charged in the bill of indictment,” where, under the indictment and evidence, as here, one of several verdicts may be rendered, is sufficient to support a judgment.
S. v. Ross,
193 N. C., 25 , 136 S. E., 193 ;
S. v. Barbee,
197 N. C., 248 , 148 S. E., 249 . But we need not determine this question, as a new trial must be awarded on other grounds.
New trial.