State v. . Spain

Stact, C. J.,

after 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 tantamount 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 occupied at tbe time of tbe alleged offense. This precluded tbe court from submitting tbe case to tbe jury on tbe charge 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.…