ERVIN, J., dissenting.

Criminal prosecution on indictment charging the defendant with burglarizing the dwelling house of his estranged wife, Mrs. Estelle Surles, on the night of 25 August, 1948, with intent then and there to murder his wife, she being present at the time occupying the dwelling.

The record discloses that the prosecutrix and the defendant were married in 1935 and lived peaceably together until 1941 or 1942, when the defendant started working at Fort Bragg as a painter and began drinking whiskey. His drinking increased and his abusive conduct towards his wife became progressively worse. He assaulted her on numerous occasions, striking her with his fists, pulling her hair, cursing her and threatening to kill her and actually firing a gun in the house on two occasions.

Finally, in order to escape from these intolerable conditions, the prosecutrix fled to her sister's home, taking her children with her. The defendant followed; a warrant was obtained for his arrest and he was put under a suspended sentence for two years.

On promise of better treatment, the prosecutrix tried to live with the defendant again. This proved futile and of short duration. In fear for her life, the prosecuting witness and her children went to her father's home for protection. He provided a home for her in a house on his farm across the road from his own home. Even here the defendant continued his molestation.

On the night of 25 August, 1948, around the hour of 10:00 p.m., the defendant came to the bedroom window of the dwelling house provided for his wife by her father and aroused the prosecutrix and her children from their sleep. He had been drinking, and the prosecuting witness told him to go away, but he threatened to cut her "G__d___ head off" if she did not open the door. Tommy Johnson, who was traveling in the same taxi with the defendant and waiting for him, came to the window and tried to persuade the defendant from further molesting his wife, and said to him "put that knife in your pocket." The defendant told him to go back to the car or "he would cut his G__d___ head off."

The defendant started cutting on the screen window. The prosecuting witness, fearing that he was coming into the house, then fled from her home, going through the back door, closing the screen door behind her, and sought refuge in her father's house. The defendant later said to Jack Tart, "I ripped the screen open with an old file or plow sweep lying on the window-sill."

The defendant entered the house through the back door, and when he found that his wife was not in the house he left and went back to the waiting taxi. The screen was cut from bottom to top, large enough for him to crawl through.

The defendant took the stand in his own behalf and admitted most of the State's evidence. He denied entering the house, however, after his wife had fled, but as to this he was contradicted by his little daughter. He attributed his conduct to strong drink and tippling.

Verdict: Guilty of an attempt to commit burglary in the second degree.

Judgment: Imprisonment in the State's Prison for a term of ten years. (This judgment rendered under G.S. 14-3.)

The defendant appeals, assigning errors, in that (1) the court overruled his motion for judgment as in case of nonsuit, and (2) imposed an excessive sentence.

STACY, C. J.

We are here called upon to say, first, whether the case survives the demurrers, and, second, whether the verdict supports the judgment.

1. Considering the evidence in its most favorable light for the prosecution, the accepted position on motion to nonsuit, we agree with the trial court that the inferences are such as to require the submission of the evidence to the jury.

Burglary is a common-law offense. S. v. Mumford, 227 N.C. 132, 41 S.E.2d 201. It consists of the felonious breaking and entering of the dwelling-house or sleeping apartment, of another, in the nighttime, with intent to commit a felony therein, whether such intent be executed or not. S. v. Allen, 186 N.C. 302, 119 S.E. 504. It was, and still is, among the few capital crimes, if not the only one, which may be committed without the execution of the felonious intent. The purpose of the law was and is to protect the habitation of men, where they repose and sleep, from meditated harm. The offense is now by statute, G.S. 14-51, divided into two degrees, first and second, depending upon the actual occupancy of the dwelling-house or sleeping apartment at the time of the commission of the crime.

It is further provided by G.S. 15-171 that upon a charge of burglary in the first degree, the jury, upon the finding of facts sufficient to constitute burglary in the first degree, may elect to render a verdict of guilty of burglary in the second degree, if they deem it proper so to do, and the judge is required so to instruct the jury in his charge. S. v. McLean, 224 N.C. 704, 32 S.E.2d 227.

It is also provided by G.S. 15-170, that upon the trial of any indictment the defendant 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. It was permissible, therefore, for the jury, under the indictment and the evidence, to convict the defendant of an attempt to commit burglary in the second degree.

An attempt to commit a crime is an act done with intent to commit that crime, carried beyond mere preparation to commit it, but falling short of its actual commission. S. v. Parker, 224 N.C. 524, 31 S.E.2d 531; S. v. Addor, 183 N.C. 687, 110 S.E. 650, 22 A.L.R. 219; S. v. Hewett, 158 N.C. 627, 74 S.E. 356; S. v. Hefner, 129 N.C. 548, 40 S.E. 2; S. v. Colvin, 90 N.C. 718; 16 C.J. 113. "An indictable attempt, therefore, consists of two important elements: (1) an intent to commit the crime, and (2) a direct ineffectual act done towards its commission." 14 Am. Jur. 813; S. v. Batson, 220 N.C. 411, 17 S.E.2d 511, 139 A.L.R. 614.

2. The defendant contends, however, that as he was convicted only of a misdemeanor, he cannot be punished by imprisonment in the State's Prison, according to the statutory provision in such cases. G.S. 14-1.

It is conceded that an attempt to commit burglary was a misdemeanor at common law. Is it an "infamous" offense, or is it one "done in secrecy and malice," or is it an offense committed "with deceit and intent to defraud"? If it fall within any one of these categories, it is pronounced a felony by G.S. 14-3, and punishable as prescribed therein. Otherwise it is still punishable as at common law. The present judgment was entered pursuant to this statute, with specific reference thereto.

In S. v. Spivey, 213 N.C. 45, 195 S.E. 1, it was held that an attempt to commit buggery was an infamous offense. And in S. v. Ritter, 199 N.C. 116, 164 S.E. 62, it is said that a conspiracy to commit murder is an offense done in secrecy and malice. Obliquely accordant: S. v. Davenport, 227 N.C. 475, 42 S.E.2d 686. The soundness of these decisions is now questioned.

A felonious intent or malice is a necessary ingredient of burglary, and it is requisite that the crime be committed in the nighttime. S. v. Allen 186 N.C. 302, 119 S.E. 504. To hold that an attempt at burglary is wanting in infamy would seem to adhere to form rather than to substance. Anno. 24 A.L.R. 1002. "Both at common law and by statute, burglary is an infamous crime." People ex rel. Battista v. Christian, 227 N.Y.S. 142, affirmed 249 N.Y. 314, 61 A.L.R. 793; 12 C.J.S. 665. If an attempt to commit burglary be not "infamous," what practical significance is to be ascribed to this word in the subject statute? Manifestly, the character of the allowable punishment cannot be the test of its meaning, for the statute applies only where no specific punishment is prescribed. S. v. Rippy, 127 N.C. 516, 37 S.E. 148; United States v. Moreland, 258 U.S. 433, 67 L.Ed. 700, 24 A.L.R. 992. The purpose of the section is to fix the punishment in such cases.

A statute, which names the punishment for all misdemeanors, where no specific punishment is prescribed, and provides that if the offense be "infamous," it shall be punished as a felony, necessarily refers to the degrading nature of the offense, McKee v. Wilson, 87 N.C. 300, and not to the measure of punishment then being set down. It would be a misnomer or misdescription to speak of an infamous misdemeanor, where no specific punishment is prescribed, if it were only intended thereby to designate an offense already subject to infamous punishment. Ordinarily, it is correct to say that an infamous offense is a crime which works infamy in the one who commits it, meaning thereby that it subjects the offender to an infamous punishment. Gudger v. Penland, 108 N.C. 593, 13 S.E. 168. But here we are to ascertain what is meant by the designation of an infamous misdemeanor, without specifically prescribed punishment, in a statute appointing the punishment for the offense so designated. "A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used" — Mr. Justice Holmes in Towne v. Eisner, 245 U.S. 418.

The General Assembly evidently had in mind some infamous misdemeanors with unprescribed specific punishments, or else the designation would have been eschewed. An attempt at burglary is certainly an act of depravity; it involves moral turpitude, reveals a heart devoid of social duties and a mind fatally bent on mischief. Anno. 40 A.L.R. 1048; 48 A.L.R. 266; 14 Am. Jur. 757. "What punishments (or offenses) shall be considered as infamous may be affected by the changes of public opinion from one age to another." Ex Parte Wilson, 114 U.S. 417, 29 L.Ed. 89. See, also, "Infamous Crime" in Bouvier's Law Dictionary and the use of this phrase in the Fifth Amendment to the Constitution of the United States. It is to be observed, however, that in determining whether a crime be infamous, the state courts exercise an independent judgment, and are not bound by the decisions of the Federal Courts as to the nature in this respect of crimes against the Government. 14 Am.Jur. 756.

It is provided by G.S. 14-55 that the preparation to commit burglary is a felony. In between mere preparation and actual commission lies the crime of attempt, which, if not a felony, undoubtedly arises from an artless omission in the statute. But such omission, if thought to exist, would seem to result only from a labored or strained construction. "The intention of the lawmakers is the law." S. v. Emery, 224 N.C. 581, 31 S.E.2d 858; S. v. Humphries, 210 N.C. 406, 186 S.E. 473.

Moreover, the cover of darkness is the full equivalent of secrecy so far as those intended to be harmed is concerned. To strike in the nighttime when the intended victim is disarmed by sleep, is a surreptitious act. Secrecy is implicit in an act which must be done in the nighttime. S. v. Bridges, 178 N.C. 733, 101 S.E. 29. The fact that the defendant here made his identity known, while attempting to accomplish his purpose, works no essential change in the nature of his crime, any more than if he had desisted through fear, resistance, or because of detection. S. v. McDaniel, 60 N.C. 245.

It follows, therefore, that an attempt to commit burglary comes within the definition of an "infamous" offense as used in the statute, or within the purview of an offense "done in secrecy and malice," either of which makes it a felony. Our previous decisions are in support of either or both denominations.

The verdict and judgment will be upheld.

No error.