¶1 The defendant was charged with burglary in the first degree in the bill of indictment. And when the solicitor stated that he would not ask for a verdict of first degree burglary, but would only ask for a verdict of second degree burglary on the indictment, it was tantamount to taking a nolle prosequi with leave on the capital charge. S. v. Spain, 201 N. C., 571, 160 S. E., 825; S. v. Hunt, 128 N. C., 584, 38 S. E., 473.
¶2 In the case of S. v. Jordan, ante, 155, 37 S. E. (2d), 111, Stacy, C. J., in speaking for the Court, said: “It is permissible under our practice to convict a defendant of a less degree of the crime charged, G. S., 15-170, or for which he is being tried, when there is evidence to support the milder verdict, S. v. Smith, 201 N. C., 494, 160 S. E., 577, with G. S., 15-171, available in burglary cases, S. v. McLean, 224 N. C., 704, 32 S. E. (2d), 227.” Rut on this record there is no evidence to support a milder verdict. Moreover, when a nolle prosequi was taken as to the capital charge, there remained no charge in the bill of indictment to support a verdict of burglary in the second degree.
¶3 The motion to set aside the verdict should have been sustained.
¶4 The defendant may be tried upon the original bill of burglary in the first degree, or upon an indictment on the charge of breaking and entering the dwelling house in question, other than burglariously, with intent to commit a felony or other infamous crime therein, contrary to the provisions of G. S., 14-54. S. v. Spain, supra; S. v. Chambers, 218 N. C., 442, 11 S. E. (2d), 280.
¶5 New trial.