¶1 (concurring). I concur in the result announced in the opinion of Judge CHRISTENSEN. I also concur with Mr. Justice STRAUP in his line of reasoning, by which he reaches the same decision.
¶2 The undisputed evidence in this case shows that the defendant is either guilty of burglary in the second degree, or not guilty of any burglary of any kind. In such a case the provision in the statute in question, to wit, “provided, the other elements of the crime of burglary in the third degree … have been proved,” by implication at least, *275 forbids the court from submitting the question of third-degree burglary to the jury.
¶3 As shown by Mr. Justice STRAUP, there are crimes wherein, as a matter of law and logic, the higher degree necessarily includes every element of the lower degree. The crime involved in the case at bar is not of that character. One element in the statutory offense of burglary in the third degree is that the entry be made in the daytime. In the case at bar all the evidence is to the effect that the defendant did not enter the chicken coop in the daytime. The undisputed evidence shows that he worked in Salt Lake City the. day of February 3d, and did not finish his work until about 8 o’clock p. m. of that day; that after finishing work he went home, ate supper, rode in an automobile to American Fork with his father, was in American Fork at about 11:30 p. m. of that night, and while on his way home, with the chickens in his possession, was seized by the deputy sheriff at about 4:30 next morning, that is, on the morning of February 4th. This case falls wholly within the proviso or exception of the statute, and justified the trial court in refusing to submit to the jury the question of defendant’s guilt of burglary in the third degree.