I. GENERAL CONSIDERATION.

Constitutionality. - The punishment provisions of subsection (a) of this section are not unconstitutional. State v. Hullender, 8 N.C. App. 41, 173 S.E.2d 581 (1970).

Trial court's decision to enhance the common law obstruction of justice charge against defendant to make it a felony pursuant to G.S. 14-3(b) was not an ex post facto application of the law. State v. Wright, 206 N.C. App. 239, 696 S.E.2d 832 (2010).

Section Places Ceiling on Court's Power to Punish. - The maximum provided in this section and G.S. 14-2 places a ceiling on the court's power to punish by imprisonment when a ceiling is not otherwise fixed by law. Jones v. Ross, 257 F. Supp. 798 (E.D.N.C. 1966).

This section has reference to misdemeanors other than those created by Article 3 of Chapter 20 of the General Statutes, which relates to motor vehicles. State v. Massey, 265 N.C. 579, 144 S.E.2d 649 (1965).

This section does not mean that the court may not place offenders on probation, or make use of other State facilities and services in proper cases. State v. Willis, 255 N.C. 473, 121 S.E.2d 854 (1961).

Common-Law Offenses. - Misdemeanors made punishable as at common law, or punishable by fine or imprisonment, or both, can be punished by fine, or imprisonment in the county jail, or both. State v. McNeill, 75 N.C. 15 (1876); State v. Powell, 94 N.C. 920 (1886); State v. Brown, 253 N.C. 195, 116 S.E.2d 349 (1960).

If a statute prohibits a matter of public grievance, or commands a matter of public convenience, all acts or omissions contrary to the prohibition or command of the statute are misdemeanors at common law, notwithstanding the fact that no punishment is prescribed in the statute. State v. Bloodworth, 94 N.C. 918 (1886).

Discretion of Trial Judge. - Where the extent of the punishment is referred to the discretion of the trial judge, his sentence may not be interfered with by the appellate court, except in case of manifest and gross abuse. State v. Willer, 94 N.C. 904 (1886); State v. Smith, 174 N.C. 804, 93 S.E. 910 (1917).

The fact that others tried on similar charges are given shorter sentences is not ground for legal objection, the punishment imposed in a particular case, if within statutory limits, being within the sound discretion of the trial judge. State v. Best, 11 N.C. App. 286, 181 S.E.2d 138, cert. denied, 279 N.C. 350, 182 S.E.2d 582 (1971).

Punishment "in the discretion of the court" is not specific punishment and, hence, is governed by the limits (ten years for felonies and two years for misdemeanors) prescribed in this section and G.S. 14-2. State v. Adams, 266 N.C. 406, 146 S.E.2d 505 (1966).

Punishment Provisions of This Section and § 14-277. - While G.S. 14-277(d) provides in pertinent part that a violation of both subsections (a) and (b) of G.S. 14-277 is a misdemeanor, it also provides that a violation of G.S. 14-277(a) is punishable under subsection (a) of this section and a violation of G.S. 14-277(b) is punishable under G.S. 14-277(d). The punishment provisions of subsection (a) of this section and G.S. 14-277(d) vary. State v. Chisholm, 90 N.C. App. 526, 369 S.E.2d 375 (1988).

Where Felony and Misdemeanor Counts Are Consolidated for Judgment. - Where defendant was tried and convicted upon an indictment charging felonious breaking and entering and misdemeanor larceny, and both counts were consolidated for judgment, the fact that the one sentence imposed was in excess of that permissible upon conviction of the misdemeanor was immaterial and was not prejudicial where it did not exceed that permitted upon conviction of the felony. State v. Cleary, 9 N.C. App. 189, 175 S.E.2d 749 (1970).

Where Statute Is Repealed Before Judgment. - Where a statute prescribing the punishment for a crime is expressly and unqualifiedly repealed after such crime has been committed, but before final judgment, though after conviction, no punishment can be imposed. State v. Cress, 49 N.C. 421 (1857); State v. Nutt, 61 N.C. 20 (1866); State v. Long, 78 N.C. 571 (1878); State v. Massey, 103 N.C. 356, 9 S.E. 632 (1889); State v. Biggers, 108 N.C. 760, 12 S.E. 1024 (1891); State v. Perkins, 141 N.C. 797, 53 S.E. 735 (1906).

Excessive Punishment. - The word "or," in criminal statutes, cannot be interpreted to mean "and," when the effect is to aggravate the offense or increase the punishment. And so where a statute provides that a party guilty of the offense created by it shall be fined or imprisoned, the court has no power to both fine and imprison. State v. Walters, 97 N.C. 489, 2 S.E. 539 (1887).

A sentence of imprisonment for five years in the county jail and a recognizance of $500.00 to keep the peace for five years after the expiration thereof upon a defendant convicted of assault and battery is excessive and therefore unconstitutional. State v. Driver, 78 N.C. 423 (1878).

The maximum punishment for a general misdemeanor is two years. State v. Burris, 3 N.C. App. 35, 164 S.E.2d 52 (1968).

A misdemeanor punishable in the discretion of the court means a maximum of two years. Atkins v. City of Charlotte, 296 F. Supp. 1068 (W.D.N.C. 1969).

Same - Not Cruel or Unusual. - It is well settled that when no time is fixed by the statute, an imprisonment for two years will not be held cruel and unusual. State v. Driver, 78 N.C. 423 (1878); State v. Miller, 94 N.C. 904 (1886); State v. Farrington, 141 N.C. 844, 53 S.E. 954 (1906).

Where Common-Law Offense Is Altered by Statute. - Where the grade of a common-law offense has been made higher by statute, the indictment must conclude against the statute, but when the punishment has been mitigated, it may conclude at common law. State v. Lawrence, 81 N.C. 522 (1879).

Effect of Consent of Defendant. - No consent of the defendant can confer a jurisdiction which is denied to the court by the law, and any punishment imposed, other than that prescribed for the offense, is illegal. In re Schenck, 74 N.C. 607 (1876).

Failure to Instruct on Lesser-Included Offense. - Where there was substantial evidence which would have supported a reasonable finding that defendant committed the lesser-included offense of attempted murder, the trial court erred in failing to instruct the jury on the lesser-included offense of attempted murder. State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993).

Sufficiency of Indictment. - While the indictment did not use the precise language in G.S. 14-3, use of a sufficiently similar phrase was sufficient to provide adequate notice to defendant that the State intended to seek elevation of the obstruction of justice charge to a felony. State v. Blount, 209 N.C. App. 340, 703 S.E.2d 921 (2011).

Jurisdiction. - The superior court did not have jurisdiction where the indictment failed to allege the elements of a felony. State v. Bell, 121 N.C. App. 700, 468 S.E.2d 484 (1996).

Applied in State v. Mounce, 226 N.C. 159, 36 S.E.2d 918 (1946); State v. Thompson, 3 N.C. App. 231, 164 S.E.2d 391 (1968); State v. Batiste, 5 N.C. App. 511, 168 S.E.2d 510 (1969); State v. Crabb, 9 N.C. App. 333, 176 S.E.2d 39 (1970); State v. Shirley, 12 N.C. App. 440, 183 S.E.2d 880 (1971); State v. Wade, 14 N.C. App. 414, 188 S.E.2d 714 (1972); State v. Lewis, 17 N.C. App. 117, 193 S.E.2d 455 (1972); State v. Toler, 18 N.C. App. 149, 196 S.E.2d 295 (1973); Lawrence v. State, 18 N.C. App. 260, 196 S.E.2d 623 (1973); State v. Puryear, 30 N.C. App. 719, 228 S.E.2d 536 (1976); State v. Preston, 73 N.C. App. 174, 325 S.E.2d 686 (1985); State v. Lee, 88 N.C. App. 478, 363 S.E.2d 656 (1988); State v. Gregory, 154 N.C. App. 718, 572 S.E.2d 838 (2002).

Cited in State v. Wilson, 216 N.C. 130, 4 S.E.2d 440 (1939); State v. Parker, 220 N.C. 416, 17 S.E.2d 475 (1941); State v. Perry, 225 N.C. 174, 33 S.E.2d 869 (1945); State v. Massey, 273 N.C. 721, 161 S.E.2d 103 (1968); State v. Thompson, 2 N.C. App. 508, 163 S.E.2d 410 (1968); In re Wilson, 3 N.C. App. 136, 164 S.E.2d 56 (1968); State v. Cleaves, 4 N.C. App. 506, 166 S.E.2d 861 (1969); State v. Spencer, 276 N.C. 535, 173 S.E.2d 765 (1970); State v. Melton, 7 N.C. App. 721, 173 S.E.2d 610 (1970); State v. Perry, 8 N.C. App. 83, 173 S.E.2d 521 (1970); State v. Benfield, 278 N.C. 199, 179 S.E.2d 388 (1971); State v. Oakley, 15 N.C. App. 224, 189 S.E.2d 605 (1972); State v. Cooper, 288 N.C. 496, 219 S.E.2d 45 (1975); State v. Jacobs, 25 N.C. App. 500, 214 S.E.2d 254 (1975); Wheaton v. Hagan, 435 F. Supp. 1134 (M.D.N.C. 1977); Thacker v. Garrison, 445 F. Supp. 376 (W.D.N.C. 1978); State v. Jarvis, 50 N.C. App. 679, 274 S.E.2d 852 (1981); State v. Perry, 52 N.C. App. 48, 278 S.E.2d 273 (1981); State v. Hageman, 56 N.C. App. 274, 289 S.E.2d 89 (1982); State v. Huff, 56 N.C. App. 721, 289 S.E.2d 604 (1982); United States v. Ward, 676 F.2d 94 (4th Cir. 1982); State v. Green, 310 N.C. 466, 312 S.E.2d 434 (1984); State v. Triplett, 70 N.C. App. 341, 318 S.E.2d 913 (1984); State v. Polite, 79 N.C. App. 752, 340 S.E.2d 762 (1986); United States v. Kendrick, 636 F. Supp. 189 (E.D.N.C. 1986); Animal Protection Soc'y of Durham, Inc. v. State, 95 N.C. App. 258, 382 S.E.2d 801 (1989); State v. Clemmons, 100 N.C. App. 286, 396 S.E.2d 616 (1990); State v. Manning, 327 N.C. 608, 398 S.E.2d 319 (1990); State v. Sullivan, 110 N.C. App. 779, 431 S.E.2d 502 (1993); State v. Taylor, 212 N.C. App. 238, 713 S.E.2d 82 (2011); State v. Cousin, 233 N.C. App. 523, 757 S.E.2d 332 (2014); State v. Greene, 251 N.C. App. 627, 795 S.E.2d 815 (2017).

II. INFAMOUS OFFENSES, ETC., GENERALLY.

Intent of Subsection (b). - When the legislature used the words "done in secrecy and malice, or with deceit and intent to defraud," its manifest purpose was to describe offenses in which either secrecy and malice, or the employment of deceit with intent to defraud, are elements necessary to their criminality as defined by law. State v. Hageman, 307 N.C. 1, 296 S.E.2d 433 (1982).

Subsection (b) and the reported cases leave some lack of certainty as to what crimes may be designated and punished as infamous. State v. Keen, 25 N.C. App. 567, 214 S.E.2d 242 (1975).

"Infamous" Refers to Nature of Offense. - 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, and not to the measure of punishment. State v. Surles, 230 N.C. 272, 52 S.E.2d 880 (1949); State v. Mann, 77 N.C. App. 654, 335 S.E.2d 772 (1985), modified on other grounds, 317 N.C. 164, 345 S.E.2d 365 (1986).

Meaning of "infamous" must be determined with reference to the degrading nature of the offense and not the measure of punishment. State v. Hageman, 307 N.C. 1, 296 S.E.2d 433 (1982).

In determining whether an offense is "infamous" and shall be punished as a felony for that reason under subsection (b) of this section, the courts look to the nature of the offense. State v. Glidden, 317 N.C. 557, 346 S.E.2d 470 (1986).

What Is an "Infamous" Crime. - A crime is "infamous" within the meaning of the statute if it is an act of depravity, involves moral turpitude, and reveals a heart devoid of social duty and a mind fatally bent on mischief. State v. Glidden, 317 N.C. 557, 346 S.E.2d 470 (1986).

In determining whether a misdemeanor is an offense "done in secrecy and malice," the courts must apply a definitional test and determine whether both "secrecy and malice" are necessary or inherent elements of the offense. State v. Glidden, 317 N.C. 557, 346 S.E.2d 470 (1986).

Fact That Misdemeanor Is Infamous Affects Only Punishment. - Under North Carolina law a determination that a misdemeanor is infamous affects only the punishment. United States v. MacCloskey, 682 F.2d 468 (4th Cir. 1982).

The grade or class of a crime is determined by the punishment prescribed therefor and not the nomenclature of the statute, a felony being a crime punishable by death or imprisonment in the State prison, and while all misdemeanors for which no punishment is prescribed are punishable as misdemeanors at common law, where the offense is infamous, or done in secrecy or malice, or with deceit and intent to defraud, it is punishable by imprisonment in the county jail or State prison, under this section, and is a felony. State v. Harwood, 206 N.C. 87, 173 S.E. 24 (1934).

Anonymous or Threatening Letters. - Subsection (b) of this section and G.S. 14-394, relating to anonymous or threatening letters, set up different punishment levels for the same criminal act without discriminating against any class of defendants, and do not violate equal protection. State v. Glidden, 76 N.C. App. 653, 334 S.E.2d 101 (1985), rev'd on other grounds, 317 N.C. 557, 346 S.E.2d 470 (1986).

III. PARTICULAR OFFENSES.

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Attempting to receive stolen property is not a crime of the same degree as attempted robbery, attempted burglary and an attempt to commit a crime against nature. Nor does the crime of attempted receipt of stolen property include secrecy, malice, deceit or intent to defraud as necessary elements. State v. Hageman, 307 N.C. 1, 296 S.E.2d 433 (1982).

Assaults. - Upon the ruling in State v. Rippy, 127 N.C. 516, 37 S.E. 148 (1900), overruled on other grounds, State v. Blackmon, 260 N.C. 352, 132 S.E.2d 880 (1963), G.S. 14-33, bearing directly on the case of assaults, with or without intent to kill, making provision for punishment of such offenses, is to be regarded as specific, within the meaning of this section, and entirely withdraws the case of assault from the operation of this section. State v. Smith, 174 N.C. 804, 93 S.E. 910 (1917).

In a case in which defendant appealed his conviction for assault with a deadly weapon with ethnic animosity, he unsuccessfully argued that the statute under which he was charged could not apply to the facts presented at trial because both he and the victim were of the same race. The victim was white and he was having a relationship with a black female, and, had he been black, defendant might not have shot at him. State v. Brown, 202 N.C. App. 499, 689 S.E.2d 210 (2010).

Conspiracy to Charge with Infanticide. - A conspiracy to charge one with infanticide, being only a common-law misdemeanor, is not punishable by imprisonment in the penitentiary. State v. Jackson, 82 N.C. 565 (1880).

Conspiracy to violate the liquor law is a misdemeanor and punishable as at common law, that is, by fine or imprisonment, or both. State v. Brown, 253 N.C. 195, 116 S.E.2d 349 (1960).

Larceny. - The punishment upon conviction of the misdemeanor of larceny may not exceed two years. State v. Cleary, 9 N.C. App. 189, 175 S.E.2d 749 (1970).

Where an indictment charged larceny of property of the value of $200.00 (now $400.00) or less, but contained no allegation the larceny was from a building by breaking and entering, the crime charged was a misdemeanor for which the maximum prison sentence was two years, notwithstanding all the evidence tended to show the larceny was accomplished by means of a felonious breaking and entering. State v. Bowers, 273 N.C. 652, 161 S.E.2d 11 (1968).

Attempt to Obtain Property by False Pretense. - Any attempt to obtain property by false pretense necessarily is done with intent to deceive. By its plain language subsection (b) of this section makes any attempt to obtain property by false pretenses a felony. State v. Page, 32 N.C. App. 478, 232 S.E.2d 460, cert. denied, 292 N.C. 643, 235 S.E.2d 64 (1977).

Destruction of Public Records. - A plea of guilty to an indictment charging defendant with willfully, feloniously, secretly, and maliciously giving aid and assistance to his codefendant by manufacturing evidence, altering and destroying original records in the office of the Secretary of Revenue, was a confession of a felony under this section, although G.S. 14-76 designates such offense as a misdemeanor. State v. Harwood, 206 N.C. 87, 173 S.E. 24 (1934).

An attempt to commit burglary constitutes a felony and is punishable by imprisonment in the State prison for a term not in excess of ten years, since it is an infamous offense or done in secrecy and malice, or both, within the purview of the statute. State v. Surles, 230 N.C. 272, 52 S.E.2d 880 (1949).

An attempt to break and enter is a misdemeanor punishable under subsection (a) of this section. State v. Hageman, 307 N.C. 1, 296 S.E.2d 433 (1982).

Attempted Robbery. - An attempt to commit common-law robbery is an infamous crime. State v. McNeely, 244 N.C. 737, 94 S.E.2d 853 (1956); State v. Mann, 77 N.C. App. 654, 335 S.E.2d 772 (1985), modified on other grounds, 317 N.C. 164, 345 S.E.2d 365 (1986).

An attempt to commit robbery with firearms is an infamous offense. State v. Parker, 262 N.C. 679, 138 S.E.2d 496 (1964), overruled on other grounds, 320 N.C. 589, 359 S.E.2d 776 (1987).

While at common law an attempt to commit a felony was a misdemeanor, the Supreme Court has held that an attempt to commit the offense of common-law robbery is an infamous crime, and by virtue of subsection (b) has been converted into a felony. State v. Bailey, 4 N.C. App. 407, 167 S.E.2d 24 (1969).

An attempt to commit robbery is an infamous crime. State v. Best, 11 N.C. App. 286, 181 S.E.2d 138, cert. denied, 279 N.C. 350, 182 S.E.2d 582 (1971).

Common-Law Robbery. - Common-law robbery is an infamous crime which consists of the felonious taking of money or goods of any value from the person of another or in his presence against his will, by violence or putting him in fear. State v. Mann, 77 N.C. App. 654, 335 S.E.2d 772 (1985), modified on other grounds, 317 N.C. 164, 345 S.E.2d 365 (1986).

Solicitation to commit common-law robbery is an infamous crime within the meaning of this section. State v. Mann, 317 N.C. 164, 345 S.E.2d 365 (1986).

Solicitation to Commit Murder. - Since it appears to be settled that conspiracy to murder is an infamous offense and punishable as a felony, and that solicitation to commit murder is but one step away from conspiracy to murder, sentence of not less than five nor more than 10 years was authorized by law. State v. Keen, 25 N.C. App. 567, 214 S.E.2d 242 (1975).

Solicitation to commit murder constitutes an "infamous" offense. United States v. MacCloskey, 682 F.2d 468 (4th Cir. 1982).

An attempt to commit murder is an infamous misdemeanor specifically elevated by subsection (b) to the status of a Class H felony. State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993).

Assault upon Female Child. - In a prosecution charging assault with intent to commit rape, where at the conclusion of the State's evidence defendant tendered a plea of guilty of an assault upon a female, and the court accepted defendant's plea and found as a fact that the female referred to was a child nine years of age and defendant was 34 years of age, and also, that the assault was aggravated, shocking and outrageous, the accepted plea was for a misdemeanor under G.S. 14-33 and not for an "infamous offense" punishable as a felony, and judgment that the defendant be confined to the State's prison for not less than eight nor more than 10 years, was a violation of this section. State v. Tyson, 223 N.C. 492, 27 S.E.2d 113 (1943).

Denial of Access to Child in Sexual Abuse Investigation. - Sufficient evidence supported defendant's conviction for felonious obstruction of justice based upon a denial of access to her child; defendant denied officers and social workers access to her child throughout their investigation into the child's sexual abuse allegations against defendant's boyfriend. State v. Ditenhafer, 373 N.C. 116, 834 S.E.2d 392 (2019).

Evidence was sufficient to allow a reasonable inference that defendant acted with deceit and the intent to defraud necessary to commit felony common law obstruction of justice because it showed that, despite believing abuse of her daughter had occurred, defendant took steps to frustrate attempts by law enforcement and social workers to investigate that abuse, defendant coached her daughter on what to say and pressured her to lie, and after catching her husband raping her daughter, defendant instructed her daughter not to tell anyone. State v. Ditenhafer, - N.C. App. - , 840 S.E.2d 850 (2020).

Attempt to Commit Crime Against Nature. - While an attempt to commit a felony is a misdemeanor, when such misdemeanor is infamous, or done in secrecy and malice, or with deceit and intent to defraud, it is punishable by imprisonment in the State's prison, and is made a felony by this section, and an attempt to commit the crime against nature is infamous and is punishable by imprisonment in the State's prison as a felony within the definition of this section. State v. Spivey, 213 N.C. 45, 195 S.E. 1 (1938); State v. Mintz, 242 N.C. 761, 89 S.E.2d 463 (1955).

An attempt to commit the crime against nature is an infamous act within the meaning of this section and is punishable as a felony. State v. Harward, 264 N.C. 746, 142 S.E.2d 691 (1965).

Solicitation to commit a crime against nature cannot be construed as an attempt to commit a crime against nature; solicitation to commit a crime against nature is therefore not an "infamous misdemeanor" under this section; and the superior court therefore did not have original jurisdiction of such a charge. State v. Tyner, 50 N.C. App. 206, 272 S.E.2d 626 (1980), cert. denied, 302 N.C. 633, 280 S.E.2d 451 (1981); State v. Mann, 77 N.C. App. 654, 335 S.E.2d 772 (1985), modified on other grounds, 317 N.C. 164, 345 S.E.2d 365 (1986).

Driving While License Permanently Revoked. - A maximum term of 18 months and a minimum term of 12 months does not exceed the statutory maximum for the crime of driving while license permanently revoked. Since only the minimum punishment of not less than one year is specified in G.S. 20-28(b), this statute must be read together with this section, applicable to motor vehicle misdemeanors contained in sections other than Article 3 of Chapter 20, to find the maximum term of imprisonment. State v. Wells, 59 N.C. App. 682, 298 S.E.2d 73 (1982), cert. denied, 308 N.C. 194, 302 S.E.2d 248 (1983).

Driving While Impaired. - There was no merit to defendant's argument that the trial court erroneously assigned prior record points to his out-of-state driving while impaired (DWI) convictions because in North Carolina, DWI is a Class 1 misdemeanor and the Alabama convictions could have resulted in imprisonment for more than six months, and, therefore, those convictions were properly classified as misdemeanors. State v. Armstrong, 203 N.C. App. 399, 691 S.E.2d 433 (2010).

Transmitting Unsigned Threatening Letter. - The misdemeanor of transmitting an unsigned threatening letter in violation of G.S. 14-394 does not fall within any of the classes of misdemeanors made felonious by subsection (b) of this section. State v. Glidden, 317 N.C. 557, 346 S.E.2d 470 (1986).

Attempted Kidnapping. - To elevate the misdemeanor offense of attempted second degree kidnapping to a Class H felony under subsection (b), the indictment must specifically state that the offense was infamous, or done in secrecy and malice, or done with deceit and intent to defraud. State v. Bell, 121 N.C. App. 700, 468 S.E.2d 484 (1996).

Criminal Contempt. - Trial court, upon finding defendant in direct criminal contempt on six occasions, did not err in sentencing defendant to six consecutive thirty-day terms of imprisonment because a finding of contempt was not a Class 3 misdemeanor. State v. Burrow, 248 N.C. App. 663, 789 S.E.2d 923 (2016).

Obstruction of Justice. - Record contained sufficient evidence that defendant acted with deceit and intent to defraud to support her conviction for felonious obstruction of justice, given her extensive efforts to protect her husband before and even after defendant's discovery that her child's accusations of sexual abuse were true; defendant continued her obstructive conduct after being shown inappropriate e-mails that her husband had sent to the child and even after witnessing an act of abuse, due to her motivation to preserve the family structure that benefitted her. State v. Ditenhafer, - N.C. - , - S.E.2d - (Mar. 12, 2021).

I. GENERAL CONSIDERATION.

Section Not Unconstitutionally Vague. - In light of the common understanding of what defines torture, the section is not unconstitutionally vague and puts a reasonable person on notice of what is forbidden. State v. Crawford, 329 N.C. 466, 406 S.E.2d 579 (1991).

Failure of this section to define the term "deadly weapon" does not result in the statute being unconstitutionally vague. Furthermore, because North Carolina cases provide adequate notice of what constitutes a deadly weapon, a defendant is not deprived of due process. State v. Jones, 133 N.C. App. 448, 516 S.E.2d 405 (1999), aff'd in part, rev'd in part on other grounds, and remanded, 353 N.C. 159, 538 S.E.2d 917 (2000).

Prior to 1893 there were no degrees of murder in North Carolina. Any unlawful killing of a human being with malice aforethought, express or implied, was murder and punishable by death. State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1970); State v. Talbert, 282 N.C. 718, 194 S.E.2d 822 (1973); State v. Watkins, 283 N.C. 17, 194 S.E.2d 800, cert. denied, 414 U.S. 1000, 94 S. Ct. 353, 38 L. Ed. 2d 235 (1973).

The degrees of homicide may be defined as follows: Murder in the first degree is the unlawful killing of another human being with malice and with premeditation and deliberation. Murder in the second degree is the unlawful killing of another human being with malice but without premeditation and deliberation. Voluntary manslaughter is the killing of another human being without malice and without premeditation and deliberation under the influence of some passion or heat of blood produced by adequate provocation. State v. Watson, 338 N.C. 168, 449 S.E.2d 694 (1994), overruled on other grounds, State v. Richardson, 341 N.C. 585, 461 S.E.2d 724 (1995).

There are two kinds of provocation relating to the law of homicide: One is that level of provocation which negates malice and reduces murder to voluntary manslaughter; the other is provocation sufficient to incite defendant to act suddenly and without deliberation. State v. Watson, 338 N.C. 168, 449 S.E.2d 694 (1994), overruled on other grounds, State v. Richardson, 341 N.C. 585, 461 S.E.2d 724 (1995).

Section Divides Murder into Four Classes. - This section does not divide first degree murder into separate offenses, each of which has its own essential elements, but divides the offense into four distinct classes, according to the proof required for each. State v. Brown, 320 N.C. 179, 358 S.E.2d 1, cert. denied, 484 U.S. 970, 108 S. Ct. 467, 98 L. Ed. 2d 406 (1987).

Purpose of Classifying Degrees of Murder. - This section intended to select out of all murders denounced those that were more heinous because committed with premeditation and deliberation, or in the perpetration or attempted perpetration of a felony, etc., as murder in the first degree, punishable with death, and leave other murders deemed less heinous as murder in the second degree, punishable by imprisonment. State v. Smith, 221 N.C. 278, 20 S.E.2d 313 (1942).

For history of this section, see State v. Kirksey, 227 N.C. 445, 42 S.E.2d 613 (1947); State v. Davis, 305 N.C. 400, 290 S.E.2d 574 (1982); State v. Strickland, 307 N.C. 274, 298 S.E.2d 645 (1983).

Repeal of Former G.S. 15-162.1. - The repeal of G.S. 15-162.1, relating to guilty pleas, leaving this section intact, showed the 1969 legislature's intent for this section to stand alone. State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969), death sentence rev'd, Atkinson v. North Carolina, 403 U.S. 948, 91 S. Ct. 2283, 29 L. Ed. 2d 859 (1971).

The repeal of G.S. 15-162.1 did not modify, change, add to, or take from this section. State v. Hill, 276 N.C. 1, 170 S.E.2d 885 (1969), death sentence vacated, 403 U.S. 948, 91 S. Ct. 2287, 29 L. Ed. 2d 860 (1971); State v. Roseboro, 276 N.C. 185, 171 S.E.2d 886 (1970), death sentence vacated, 403 U.S. 948, 91 S. Ct. 2289, 29 L. Ed. 2d 860 (1971); Garner v. State, 8 N.C. App. 109, 174 S.E.2d 92 (1970).

Former G.S. 15-162.1 did not alter this section, which is capable of standing alone. State v. Roseboro, 276 N.C. 185, 171 S.E.2d 886 (1970), death sentence vacated, 403 U.S. 948, 91 S. Ct. 2289, 29 L. Ed. 2d 860 (1971); Garner v. State, 8 N.C. App. 109, 174 S.E.2d 92 (1970).

Applicability of Common-Law Definition. - By the Act of 1893, c. 85 (this section), the crime of murder has been divided into two degrees, first and second. The common-law definition and description are still applicable to the crime in the second degree; but it takes more than this to constitute murder in the first degree - the killing must be willful, deliberate and premeditated, and this must be shown by the State beyond a reasonable doubt before it is justified in asking a verdict of guilty of murder in the first degree. State v. Rhyne, 124 N.C. 847, 33 S.E. 128 (1899).

The statutes where murder is divided into two degrees have not, as a general rule, added to or taken away any ingredient of murder at common law, and every murder at common law is murder under the statutes. See State v. Rhyne, 124 N.C. 847, 33 S.E. 128 (1899); State v. Dalton, 178 N.C. 779, 101 S.E. 548 (1919); State v. Streeton, 231 N.C. 301, 56 S.E.2d 649 (1949).

This section does not give any new definition of murder, but permits that to remain as it was at common law. The section simply selects out of all murders denounced by common law those deemed more heinous on account of the mode of their perpetration, classifies them as murder in the first degree, and provides a greater punishment for them than that prescribed for "all other kinds of murder," which it denominates murder in the second degree. State v. Streeton, 231 N.C. 301, 56 S.E.2d 649 (1949).

The common-law "year and a day" rule has become "obsolete," within the meaning of that term as used in G.S. 4-1, and the rule is no longer part of the common law of North Carolina for any purpose. State v. Vance, 328 N.C. 613, 403 S.E.2d 495 (1991).

A person is criminally responsible for a homicide only if his act caused or directly contributed to the death of the victim. State v. Brock, 305 N.C. 532, 290 S.E.2d 566 (1982), overruled on other grounds, State v. Taylor, 337 N.C. 597, 447 S.E.2d 360 (1994).

The corpus delicti in criminal homicide involves two elements: (1) the fact of the death, and (2) the existence of the criminal agency of another as the cause of death. State v. Jensen, 28 N.C. App. 436, 221 S.E.2d 717 (1976); State v. Perdue, 320 N.C. 51, 357 S.E.2d 345 (1987).

The corpus delicti consists of two requirements in homicide cases: (1) There must be a corpse or circumstantial evidence so strong and cogent that there can be no doubt of the death, and (2) the criminal agency must be shown. State v. Carroll, 85 N.C. App. 696, 355 S.E.2d 844, cert. denied, 320 N.C. 514, 358 S.E.2d 523 (1987).

Criminal Agency of Another. - Evidence of "criminal agency of another," as that phrase has been used in defining the corpus delicti in homicide cases, means evidence which tends to show that the deceased died not as the result of natural or accidental causes, but by the hand of another. State v. Perdue, 320 N.C. 51, 357 S.E.2d 345 (1987).

Proof Required in Homicide Cases. - In homicide cases, as in all criminal cases, the State must show that a crime was committed and that defendant committed it. State v. Perry, 293 N.C. 97, 235 S.E.2d 52 (1977); State v. Head, 79 N.C. App. 1, 338 S.E.2d 908 (1986).

In any prosecution for a homicide the State must prove two things: (1) That the deceased died by virtue of a criminal act; and (2) that the act was committed by the defendant. State v. Jones, 280 N.C. 60, 184 S.E.2d 862 (1971); State v. McCall, 286 N.C. 472, 212 S.E.2d 132 (1975), death sentence vacated, 429 U.S. 912, 97 S. Ct. 301, 50 L. Ed. 2d 278 (1976); State v. Furr, 292 N.C. 711, 235 S.E.2d 193, cert. denied, 434 U.S. 924, 98 S. Ct. 402, 54 L. Ed. 2d 281 (1977); State v. Hooper, 79 N.C. App. 93, 339 S.E.2d 70 (1986), rev'd on other grounds, 318 N.C. 680, 351 S.E.2d 286 (1987).

Proof Must Be Beyond Reasonable Doubt. - It makes no difference whether the State is relying on circumstantial or direct evidence, or both, the evidence must produce in the mind of the jurors a moral certainty of the defendant's guilt, otherwise the State has not proven his guilt beyond a reasonable doubt. State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572 (1971), death sentence vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761 (1972).

Burden on State to Show Jurisdiction. - In a murder prosecution, the defendant's challenge to jurisdiction alleging the insufficiency of the evidence to show that the murder was committed in this State is not an affirmative defense. Rather, the State has the burden to show beyond a reasonable doubt that the courts of this State have jurisdiction to try the accused. Former cases to the contrary are no longer authoritative. State v. Batdorf, 293 N.C. 486, 238 S.E.2d 497 (1977).

Inversion of Order of Proof on Motion to Suppress Did Not Shift Burden. - In a prosecution for first-degree murder, the trial court did not err in requiring defendant to present his evidence before the State put on its evidence during a hearing on defendant's motion to suppress, and there was no merit to defendant's contention that the inversion of the order of proof resulted in a shift of the burden of proof, since the order of proof is merely a matter of practice without legal effect; there was nothing in the trial court's order denying defendant's motion to suppress to indicate that the trial judge believed otherwise; and defendant was not prejudiced by the order of proof because it resulted in his having to call one of the State's principal witnesses as his own. State v. Temple, 302 N.C. 1, 273 S.E.2d 273 (1981).

A killing done with malice and not in self-defense is murder, even though the person killed may have been seeking to effect an unlawful arrest upon the defendant. State v. Sanders, 295 N.C. 361, 245 S.E.2d 674 (1978), cert. denied, 454 U.S. 973, 102 S. Ct. 523, 70 L. Ed. 2d 392 (1981).

Use of Deadly Weapon. - In the absence of evidence of mitigating or justifying factors, all killings accomplished through the intentional use of a deadly weapon are deemed to be malicious and unlawful. State v. Porter, 326 N.C. 489, 391 S.E.2d 144 (1990).

Hands as Deadly Weapons. - When a strong or mature person makes an attack by hands alone on a small child, the jury may infer that the hands were used as deadly weapons. State v. Pierce, 346 N.C. 471, 488 S.E.2d 576 (1997).

Separate sentences for attempted first degree murder and assault with a deadly weapon with intent to kill did not result in double jeopardy where each offense required proof of at least one element that the other did not. State v. Peoples, 141 N.C. App. 115, 539 S.E.2d 25 (2000).

Attempt to Kill Is Not Murder. - An attempt only, to kill, with the most diabolical intent, may be moral, but cannot be legal, murder. State v. Scates, 50 N.C. 420 (1858).

Principals and Accessories Distinguished. - The North Carolina law of homicide still maintains a careful distinction between principals and accessories. State v. Furr, 292 N.C. 711, 235 S.E.2d 193, cert. denied, 434 U.S. 924, 98 S. Ct. 402, 54 L. Ed. 2d 281 (1977).

There May Be Accessories to Murder in Both Degrees. - Since malice, express or implied, is a constituent element of murder in any degree, there may be accessories before the fact to the crime of murder in both degrees. State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1970).

Admittedly the concept of accessory before the fact presupposes some arrangement between the assessory and the principal with respect to the commission of the crime. It does not follow, however, that there can be no accessory before the fact to second-degree murder, which imports a specific intent to do an unlawful act. State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1970).

An accessory before the fact may be tried for first-degree murder although the principal has pled guilty to second-degree murder. State v. Larrimore, 340 N.C. 119, 456 S.E.2d 789 (1995).

Acting in Concert. - Under the principle of acting in concert, a person may be found guilty of an offense if he is present at the scene of the crime and the evidence is sufficient to show that he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime. State v. Wilson, 322 N.C. 117, 367 S.E.2d 589 (1988).

Independent Act by Subsequent Perpetrator. - If one man inflicts a mortal wound, of which the victim is languishing, and then a second kills the deceased by an independent act, we cannot imagine how the first can be said to have killed him, without involving the absurdity of saying that the deceased was killed twice. In such a case, the two persons could not be indicted as joint murderers, because there was no understanding, or connection between them. State v. Gibson, 333 N.C. 29, 424 S.E.2d 95 (1992), overruled on other grounds, 334 N.C. 402, 432 S.E.2d 349 (1993) (citing State v. Scates, 50 N.C. (5 Jones) 420, 423-24 (1848)).

One who procures another to commit murder is an accessory before the fact to murder. State v. Furr, 292 N.C. 711, 235 S.E.2d 193, cert. denied, 434 U.S. 924, 98 S. Ct. 402, 54 L. Ed. 2d 281 (1977).

The elements of being an accessory before the fact to murder are: (1) That defendant counseled, procured, commanded, encouraged or aided the principal to murder the victim; (2) that the principal did murder the victim; and (3) that defendant was not present when the crime was committed. State v. Sams, 317 N.C. 230, 345 S.E.2d 179 (1986); State v. Davis, 319 N.C. 620, 356 S.E.2d 340 (1987).

In cases where a defendant is prosecuted as an accessory before the fact to murder, the State must prove beyond a reasonable doubt that the actions or statements of the defendant somehow caused or contributed to the actions of the principal, which in turn caused the victim's death. State v. Davis, 319 N.C. 620, 356 S.E.2d 340 (1987).

Where one incites or employs a mental defective to kill another the question whether the employer is guilty as a principal depends upon whether the defective was criminally responsible for his act under the McNaughten rule. If the agent is legally responsible for his own acts, the instigator is only an accessory before the fact if he is absent when the crime is committed. State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1970).

Venue Allegations and Proof Not in Fatal Variance. - Where indictment alleged that felony murder occurred in Buncombe County and the evidence disclosed that the kidnapping, an essential element of the crime, occurred in Buncombe County, there was no fatal variance between the allegations in the indictment and proof at trial that victim actually died in Ashe County. State v. Vines, 317 N.C. 242, 345 S.E.2d 169 (1986).

Murder and Conspiracy Not Merged. - Failure of the trial judge to merge defendant's convictions when he granted codefendant's motion for merger of conspiracy conviction with first-degree murder conviction neither violated defendant's equal protection rights nor constituted error, where the evidence established that codefendant was not present at the actual murder, and his liability for the murder was predicated solely on his participation in the conspiracy, while defendant, on the other hand, not only conspired to murder victim, but actually participated in killing her. State v. Lowery, 318 N.C. 54, 347 S.E.2d 729 (1986).

Kidnapping Conviction Vacated. - Where the placing of a gag over the victim's mouth could not have been the proximate cause of her death without the binding of her hands and feet, which prevented the removal of the gag, so that the victim's death would not have occurred without these other ligatures, the restraint of the victim which resulted in her murder was indistinguishable from the restraint used by the State to support the kidnapping charge, and defendant's kidnapping conviction would be vacated. State v. Prevette, 317 N.C. 148, 345 S.E.2d 159 (1986).

First degree kidnapping is not a lesser included offense of murder. State v. Fernandez, 346 N.C. 1, 484 S.E.2d 350 (1997).

First degree kidnapping requires the State to prove facts not required to prove murder, and it addresses a distinct evil, the kidnapping of and failure to release the victim in a safe place or condition; thus, at least one essential element of each crime is not an element of the other. State v. Fernandez, 346 N.C. 1, 484 S.E.2d 350 (1997).

The charging of both felonious assault and attempted murder as to each victim was not error although these charges arose out of the same incident; substantial evidence existed against defendant of every essential element of both. State v. Washington, 141 N.C. App. 354, 540 S.E.2d 388 (2000), cert denied, 353 N.C. 396, 547 S.E.2d 427 (2001).

Killing of Viable But Unborn Child Is Not Murder. - Where second count charged that defendant unlawfully, willfully and feloniously did of malice aforethought kill and murder baby girl, a viable but unborn child, in violation of this section, trial judge improperly denied defendant's motion to dismiss second count of indictment since unlawful, willful and felonious killing of viable but unborn child is not murder within meaning of this section. State v. Beale, 324 N.C. 87, 376 S.E.2d 1 (1989).

Jurisdiction Shown. - Evidence as a whole amounted to a prima facie showing of jurisdiction sufficient to carry the case to the jury and to permit the jury to infer that the murder took place in this State, where the evidence tended to show that there was a breaking and entering at the victim's home, that acts of violence took place there, and that the cement block and rock used by the killer to sink the victim's body in creek were taken from the victim's yard; a reasonable inference from this evidence is that the victim was dead when the cement block and rock were taken from her yard and placed in her car with her body for use in its disposal. State v. Rick, 342 N.C. 91, 463 S.E.2d 182 (1995).

Instruction on Burden to Prove Jurisdiction Required. - Where the defendant challenged the facts of jurisdiction, but the trial court did not instruct the jury as to which party bore the burden of proving jurisdiction and that if the jury was unconvinced beyond a reasonable doubt that the murder, or the essential elements of murder, occurred in North Carolina, it should return a special verdict so indicating, it was necessary to remand the case for a new trial on the charge of second-degree murder. State v. Rick, 342 N.C. 91, 463 S.E.2d 182 (1995).

Death Need Not Be Intended for Conviction. - While defendant may not have intended to join the codefendant in shooting and killing the victim, defendant's intent was irrelevant under an acting in concert theory of felony murder in violation of G.S. 14-17; as long as defendant joined the codefendant in committing a felony, defendant was responsible for all other crimes committed in a single transaction that were in furtherance of a common purpose or plan. State v. Herring, 176 N.C. App. 395, 626 S.E.2d 742, appeal dismissed, cert. denied, 637 S.E.2d 183 (N.C. 2006).

Defendant had no right to a reversal in his murder trial, despite his claim that the indictment was insufficient for saying only that he violated G.S. 14-17. The indictment met requirements of G.S. 15-144. State v. Elliott, 360 N.C. 400, 628 S.E.2d 735 (2006).

Entitlement to Parole Ineligibility Instruction. - Where a State prisoner, who was convicted of first-degree murder, first-degree rape, kidnapping, armed robbery, and the burning of personal property, in violation of G.S. 14-17, 14-27.2(a)(2), 14-39, 14-87, and 14-66, argued that the sentencing court erred by failing to provide a parole ineligibility instruction, the prisoner, who was sentenced to death for the murder conviction, was not entitled to federal habeas corpus relief because the prisoner would have been eligible for parole under former G.S. 15A-1371(a1) if the jury had recommended life imprisonment; thus, because the prisoner was eligible for parole as a matter of law, the prisoner was not entitled to a parole ineligibility instruction. Campbell v. Polk, 447 F.3d 270 (4th Cir. 2006).

Mitigating Circumstances - Where a State prisoner, who was sentenced to death for committing first-degree murder, in violation of G.S. 14-17, argued that his attorneys were ineffective because they failed to adequately present mitigating evidence concerning his life history and his mental health, the prisoner was not entitled to federal habeas corpus relief because (1) the prisoner's sisters testified at sentencing about the prisoner's dysfunctional childhood; (2) the prisoner instructed the attorneys not to introduce further evidence of his background; and (3) a doctor testified at sentencing that the prisoner's mental disorders impaired his ability to control his behavior; furthermore, the prisoner could not demonstrate prejudice because the additional evidence identified by the prisoner was largely cumulative and the jury found that four severe aggravating circumstances under G.S. 15A-2000 outweighed any mitigating circumstances. Campbell v. Polk, 447 F.3d 270 (4th Cir. 2006).

Indictment Upheld. - In light of State v. Jones , 616 S.E.2d 496 (N.C. 2005), which held that an indictment comported with both statutory and constitutional requirements, defendant's indictment for "attempted murder" was not defective, even though it lacked allegations that defendant acted with the specific intent to kill, premeditation, or deliberation. State v. Watkins, 181 N.C. App. 502, 640 S.E.2d 409 (2007), appeal dismissed, 361 N.C. 436, 649 S.E.2d 896 (2007).

Indictment Sufficient for Conspiracy to Commit Attempted First-Degree Murder. - Indictment charging defendant with conspiracy to commit attempted first-degree murder was valid because conspiracy to commit attempted first-degree murder was a cognizable offense as the crime of attempt did not require failure as an essential element and, with all other elements of conspiracy appearing in the indictment, was adequately charged. State v. Lyons, - N.C. App. - , 836 S.E.2d 917 (2019).

Arrest of Judgment Proper. - Trial court did not err by electing to arrest judgment on a felonious child abuse with a deadly weapon conviction as only one felony was necessary to support a felony murder conviction, and the jury found that five felonies could support a felony murder charge including forcible rape, statutory rape, forcible sex offense, statutory sex offense, and felony child abuse with a deadly weapon. State v. Ridgeway, 185 N.C. App. 423, 648 S.E.2d 886 (2007).

Applied in State v. Hodgin, 210 N.C. 371, 186 S.E. 495 (1936); State v. Montgomery, 227 N.C. 100, 40 S.E.2d 614 (1946); State v. Lampkin, 227 N.C. 620, 44 S.E.2d 30 (1947); State v. Parrott, 228 N.C. 752, 46 S.E.2d 851 (1948); State v. Rogers, 233 N.C. 390, 64 S.E.2d 572 (1951); State v. Canipe, 240 N.C. 60, 81 S.E.2d 173 (1954); State v. Gales, 240 N.C. 319, 82 S.E.2d 80 (1954); State v. Arnold, 258 N.C. 563, 129 S.E.2d 229 (1963); State v. Johnson, 261 N.C. 727, 136 S.E.2d 84 (1964); State v. Phillips, 262 N.C. 723, 138 S.E.2d 626 (1964); State v. Matthews, 263 N.C. 95, 138 S.E.2d 819 (1964); State v. Shaw, 263 N.C. 99, 138 S.E.2d 772 (1964); Crawford v. Bailey, 234 F. Supp. 700 (E.D.N.C 1964); State v. Brown, 263 N.C. 327, 139 S.E.2d 609 (1965); State v. Howard, 274 N.C. 186, 162 S.E.2d 495 (1968); State v. Smith, 279 N.C. 505, 183 S.E.2d 649 (1971); State v. Freeman, 280 N.C. 622, 187 S.E.2d 59 (1972); State v. Bolin, 281 N.C. 415, 189 S.E.2d 235 (1972); State v. Willis, 281 N.C. 558, 189 S.E.2d 190 (1972); State v. Cutshall, 281 N.C. 588, 189 S.E.2d 176 (1972); State v. Ingram, 282 N.C. 142, 191 S.E.2d 595 (1972); State v. Edwards, 282 N.C. 201, 192 S.E.2d 304 (1972); State v. Hegler, 15 N.C. App. 51, 189 S.E.2d 596 (1972); State v. McSwain, 15 N.C. App. 675, 190 S.E.2d 682 (1972); Ham v. North Carolina, 471 F.2d 406 (4th Cir. 1973); State v. Huffman, 21 N.C. App. 331, 204 S.E.2d 241 (1974); State v. Perry, 21 N.C. App. 528, 204 S.E.2d 916 (1974); State v. Harrington, 22 N.C. App. 473, 206 S.E.2d 768 (1974); State v. Greenlee, 22 N.C. App. 489, 206 S.E.2d 753 (1974); State v. Boyd, 287 N.C. 131, 214 S.E.2d 14 (1975); State v. Woodson, 287 N.C. 578, 215 S.E.2d 607 (1975); State v. Davis, 290 N.C. 511, 227 S.E.2d 97 (1976); State v. Young, 291 N.C. 562, 231 S.E.2d 577 (1977); State v. Manuel, 291 N.C. 705, 231 S.E.2d 588 (1977); State v. Stanfield, 292 N.C. 357, 233 S.E.2d 574 (1977); State v. Carter, 293 N.C. 532, 238 S.E.2d 493 (1977); State v. Hunt, 43 N.C. App. 428, 259 S.E.2d 322 (1979); State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980); State v. Horton, 299 N.C. 690, 263 S.E.2d 745 (1980); State v. Irwin, 304 N.C. 93, 282 S.E.2d 439 (1981); State v. Stanley, 56 N.C. App. 109, 286 S.E.2d 865 (1982); State v. Chamberlain, 307 N.C. 130, 297 S.E.2d 540 (1982); State v. Primes, 314 N.C. 202, 333 S.E.2d 278 (1985); State v. Holden, 321 N.C. 125, 362 S.E.2d 513 (1987); State v. Turnage, 100 N.C. App. 234, 395 S.E.2d 156 (1990); State v. Farmer, 333 N.C. 172, 424 S.E.2d 120 (1993); State v. Jahn, 342 N.C. 176, 463 S.E.2d 204 (1995); State v. Britt, 132 N.C. App. 173, 510 S.E.2d 683 (1999); State v. Lesane, 137 N.C. App. 234, 528 S.E.2d 37 (2000); State v. Cummings, 352 N.C. 600, 536 S.E.2d 36 (2000), cert denied, 532 U.S. 997, 121 S. Ct. 1660, 149 L. Ed. 2d 641 (2001); State v. Stokes, 150 N.C. App. 211, 565 S.E.2d 196 (2002), cert. denied, 356 N.C. 175, 569 S.E.2d 277 (2002); Schlaepfer v. Harkleroad, 244 F. Supp. 2d 589 (W.D.N.C. 2003); State v. Fisher, 158 N.C. App. 133,
580 S.E.2d 405 (2003), cert. denied, 357 N.C. 464, 586 S.E.2d 274 (2003), aff'd, 358 N.C. 215, 593 S.E.2d 583 (2004); State v. Andrews, 170 N.C. App. 68, 612 S.E.2d 178 (2005); State v. Rankin, 191 N.C. App. 332, 663 S.E.2d 438 (2008), review denied, 363 N.C. 136, 674 S.E.2d 143 (2009), review denied, 363 N.C. 136, 674 S.E.2d 143 (2009); State v. Bunch, 363 N.C. 841, 689 S.E.2d 866 (Mar. 12, 2010); State v. Melvin, 364 N.C. 589, 707 S.E.2d 629 (2010).

Cited in State v. Evans, 198 N.C. 82, 150 S.E. 678 (1930); State v. Macon, 198 N.C. 483, 152 S.E. 407 (1930); State v. Cooper, 205 N.C. 657, 172 S.E. 199 (1933); State v. Beard, 207 N.C. 673, 178 S.E. 242 (1934); State v. Horne, 209 N.C. 725, 184 S.E. 470 (1935); State v. Linney, 212 N.C. 739, 194 S.E. 470 (1937); State v. Hudson, 218 N.C. 219, 10 S.E.2d 730 (1940); State v. Blue, 219 N.C. 612, 14 S.E.2d 635 (1941); State v. Gause, 227 N.C. 26, 40 S.E.2d 463 (1946); State v. Ewing, 227 N.C. 107, 40 S.E.2d 600 (1946); Fuquay v. Fuquay, 232 N.C. 692, 62 S.E.2d 83 (1950); State v. Hall, 233 N.C. 310, 63 S.E.2d 636 (1951); State v. Reeves, 235 N.C. 427, 70 S.E.2d 9 (1952); State v. Roman, 235 N.C. 627, 70 S.E.2d 857 (1952); Perkins v. North Carolina, 234 F. Supp. 333 (W.D.N.C. 1964); State v. Benton, 275 N.C. 378, 167 S.E.2d 775 (1969); State v. Clark, 22 N.C. App. 81, 206 S.E.2d 252 (1974); Resendez v. Garrison, 528 F.2d 1310 (4th Cir. 1975); State v. Williams, 286 N.C. 422, 212 S.E.2d 113 (1975); Lofton v. Lofton, 26 N.C. App. 203, 215 S.E.2d 861 (1975); State v. Brower, 289 N.C. 644, 224 S.E.2d 551 (1976); State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977); State v. Finch, 293 N.C. 132, 235 S.E.2d 819 (1977); State v. Kirkman, 293 N.C. 447, 238 S.E.2d 456 (1977); State v. Harbison, 293 N.C. 474, 238 S.E.2d 449 (1977); State v. Walters, 33 N.C. App. 521, 235 S.E.2d 906 (1977); State v. Hood, 294 N.C. 30, 239 S.E.2d 802 (1978); State v. Walters, 294 N.C. 311, 240 S.E.2d 628 (1978); State v. Matthews, 295 N.C. 265, 245 S.E.2d 727 (1978); State v. Banks, 295 N.C. 399, 245 S.E.2d 743 (1978); Reeves v. Reed, 596 F.2d 628 (4th Cir. 1979); State v. Scott, 296 N.C. 519, 251 S.E.2d 414 (1979); State v. Sparks, 297 N.C. 314, 255 S.E.2d 373 (1979); State v. Johnson, 298 N.C. 47, 257 S.E.2d 597 (1979); State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979); State v. Barfield, 298 N.C. 306, 259 S.E.2d 510 (1979); State v. Bonds, 43 N.C. App. 467, 259 S.E.2d 377 (1979); State v. Daniels, 300 N.C. 105, 265 S.E.2d 217 (1980); Foster v. Barbour, 613 F.2d 59 (4th Cir. 1980); In re Ford, 49 N.C. App. 680, 272 S.E.2d 157 (1980); State v. Cason, 51 N.C. App. 144, 275 S.E.2d 221 (1981); State v. Powell, 51 N.C. App. 224, 275 S.E.2d 528 (1981); State v. Williams, 304 N.C. 394, 284 S.E.2d 437 (1981); State v. Richardson, 59 N.C. App. 558, 297 S.E.2d 921 (1982); O'Tuel v. Osborne, 706 F.2d 498 (4th Cir. 1983); State v. Griffin, 308 N.C. 303, 302 S.E.2d 447 (1983); State v. Wood, 61 N.C. App. 446, 300 S.E.2d 903 (1983); State v. Hinson, 310 N.C. 245, 311 S.E.2d 256 (1984); State v. Whitley, 311 N.C. 656, 319 S.E.2d 584 (1984); Little v. Allsbrook, 731 F.2d 238 (4th Cir. 1984); State v. Michael, 311 N.C. 214, 316 S.E.2d 276 (1984); State v. Edmondson, 70 N.C. App. 426, 320 S.E.2d 315 (1984); State v. Williamson, 72 N.C. App. 657, 326 S.E.2d 37 (1985); State v. Dampier, 314 N.C. 292, 333 S.E.2d 230 (1985); State v. Parker, 315 N.C. 249, 337 S.E.2d 497 (1985); Williams v. Gupton,
627 F. Supp. 669 (W.D.N.C. 1986); State v. Williams, 317 N.C. 474, 346 S.E.2d 405 (1986); State v. Mills, 83 N.C. App. 606, 351 S.E.2d 130 (1986); State v. Kimbrell, 84 N.C. App. 59, 351 S.E.2d 801 (1987); State v. Clark, 319 N.C. 215, 353 S.E.2d 205 (1987); State v. Daniel, 319 N.C. 308, 354 S.E.2d 216 (1987); State v. Edgerton, 86 N.C. App. 329, 357 S.E.2d 399 (1987); State v. Rogers, 323 N.C. 658, 374 S.E.2d 852 (1989); State v. McQueen, 324 N.C. 118, 377 S.E.2d 38 (1989); State v. Liles, 324 N.C. 529, 379 S.E.2d 821 (1989); State v. Lynch, 327 N.C. 210, 393 S.E.2d 811 (1990); State v. Manning, 327 N.C. 608, 398 S.E.2d 319 (1990); State v. Alford, 329 N.C. 755, 407 S.E.2d 519 (1991); State v. Williams, 330 N.C. 579, 411 S.E.2d 814 (1992); State v. Cook, 334 N.C. 564, 433 S.E.2d 730 (1993); State v. Stanley, 110 N.C. App. 87, 429 S.E.2d 349 (1993); State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993); State v. Howard, 334 N.C. 602, 433 S.E.2d 742 (1993); State v. Barber, 335 N.C. 120, 436 S.E.2d 106 (1993); State v. Dobson, 337 N.C. 464, 446 S.E.2d 14 (1994); State v. Bacon, 337 N.C. 66, 446 S.E.2d 542 (1994); State v. Beamer, 339 N.C. 477, 451 S.E.2d 190 (1994); State v. Robinson, 339 N.C. 263, 451 S.E.2d 196 (1994); State v. Corbett, 339 N.C. 313, 451 S.E.2d 252 (1994); State v. House, 340 N.C. 187, 456 S.E.2d 292 (1995); State v. Lovett, 119 N.C. App. 689, 460 S.E.2d 177 (1995); Ashe v. Styles, 67 F.3d 46 (4th Cir. 1995), cert. denied, 516 U.S. 1162, 116 S. Ct. 1051, 134 L. Ed. 2d 196 (1996); State v. Gainey, 343 N.C. 79, 468 S.E.2d 227 (1996); State v. Crawford, 344 N.C. 65, 472 S.E.2d 920 (1996); State v. Braxton, 344 N.C. 702, 477 S.E.2d 172 (1996); State v. Williams, 345 N.C. 137, 478 S.E.2d 782 (1996); State v. Coffey, 345 N.C. 389, 480 S.E.2d 664 (1997); State v. Allen, 346 N.C. 731, 488 S.E.2d 188 (1997); State v. Tucker, 347 N.C. 235, 490 S.E.2d 559 (1997), cert. denied, 523 U.S. 1061, 118 S. Ct. 1389, 140 L. Ed. 2d 649 (1998); State v. Sidden, 347 N.C. 218, 491 S.E.2d 225 (1997), cert. denied, 523 U.S. 1097, 118 S. Ct. 1583, 140 L. Ed. 2d 797 (1998); State v. Swindler, 129 N.C. App. 1, 497 S.E.2d 318 (1998), cert. denied, 348 N.C. 508, 510 S.E.2d 670 (1998), aff'd, 349 N.C. 347, 507 S.E.2d 284 (1998); State v. Owen, 130 N.C. App. 505, 503 S.E.2d 426 (1998), cert. denied, 349 N.C. 372, 525 S.E.2d 188 (1998); State v. Flowers, 128 N.C. App. 697, 497 S.E.2d 94 (1998); State v. Stinnett, 129 N.C. App. 192, 497 S.E.2d 696 (1998), cert. denied, 525 U.S. 1008, 119 S. Ct. 526, 142 L. Ed. 2d 436 (1998); Boyd v. French, 147 F.3d 319 (4th Cir. 1998), cert. denied, 525 U.S. 1150, 119 S. Ct. 1050, 143 L. Ed. 2d 56 (1999); State v. Lee, 348 N.C. 474, 501 S.E.2d 334 (1998); State v. Cabe, 131 N.C. App. 310, 506 S.E.2d 749 (1998); Frye v. Lee, 89 F. Supp. 2d 693 (W.D.N.C. 2000); State v. Holman, 353 N.C. 174, 540 S.E.2d 18 (2000), cert. denied, 534 U.S. 910, 122 S. Ct. 250, 151 L. Ed. 2d 181 (2001), cert. denied, 359 N.C. 854, 619 S.E.2d 854 (2005); State v. Harris,
136 N.C. App. 611, 525 S.E.2d 208 (2000); State v. Holt, 144 N.C. App. 112, 547 S.E.2d 148 (2001); State v. Krider, 145 N.C. App. 711, 550 S.E.2d 861 (2001); Hartman v. Lee, 283 F.3d 190 (4th Cir. 2002), cert. denied, 537 U.S. 1114, 123 S. Ct. 851, 154 L. Ed. 2d 789 (2003); State v. Stokes, - N.C. App. - , 561 S.E.2d 547 (2002); State v. Hannah, 1 49 N.C. App. 713, 563 S.E.2d 1 (2002); State v. Hunt, 357 N.C. 257, 582 S.E.2d 593, cert. denied, 539 U.S. 985, 124 S. Ct. 44, 156 L. Ed. 2d 702 (2003); Buckner v. Polk, 453 F.3d 195 (4th Cir. 2006), cert. denied, 549 U.S. 1284, 127 S. Ct. 1817, (U.S. 2007); State v. Peterson, 361 N.C. 587, 652 S.E.2d 216 (2007), cert. denied, 552 U.S. 1271, 128 S. Ct. 1682, 170 L. Ed. 2d. 377 (2008); State v. Hall, 187 N.C. App. 308, 653 S.E.2d 200 (2007); State v. Calhoun, 189 N.C. App. 166, 657 S.E.2d 424 (2008), review denied, appeal dismissed, 362 N.C. 476, 666 S.E.2d 651 (2008); State v. Cook, 193 N.C. App. 179, 666 S.E.2d 795 (2008); State v. Jacobs, 195 N.C. App. 599, 673 S.E.2d 724 (2009), aff'd, 363 N.C. 815, 689 S.E.2d 859, 2010 N.C. LEXIS 195 (2010); State v. Anderson, 200 N.C. App. 216, 684 S.E.2d 450 (2009); In re Search Warrants Issued in Connection with the Investigation into the Death of Nancy Cooper, 200 N.C. App. 180, 683 S.E.2d 418 (2009), review denied, 363 N.C. 855, 694 S.E.2d 201 (2010); State v. Mumford, 201 N.C. App. 594, 688 S.E.2d 458 (2010); State v. Blymyer, 205 N.C. App. 240, 695 S.E.2d 525 (2010); State v. Williams, 209 N.C. App. 441, 705 S.E.2d 409 (2011); State v. Sargeant, 365 N.C. 58, 707 S.E.2d 192 (2011); State v. Norman, 213 N.C. App. 114, 711 S.E.2d 849 (2011), review denied, 718 S.E.2d 401, 2011 N.C. LEXIS 940 (2011); State v. Schiro, 219 N.C. App. 105, 723 S.E.2d 134 (2012), review denied, 735 S.E.2d 179, 2012 N.C. LEXIS 1027 (2012); State v. Lowery, 228 N.C. App. 229, 743 S.E.2d 696 (2013), review denied, 749 S.E.2d 858, 2013 N.C. LEXIS 1186 (2013), cert. dismissed, 2013 N.C. LEXIS 1432 (2013); State v. Monroe, 233 N.C. App. 563, 756 S.E.2d 376 (2014), aff'd 367 N.C. 771, 768 S.E.2d 292, 2015 N.C. LEXIS 33 (2015); State v. Dalton, 243 N.C. App. 124, 776 S.E.2d 545 (2015), aff'd, 794 S.E.2d 485, 2016 N.C. LEXIS 1121 (2016); State v. Gettys, 243 N.C. App. 590, 777 S.E.2d 351 (2015), dismissed and review denied, 781 S.E.2d 798, 2016 N.C. LEXIS 118 (2016); State v. Cook, 246 N.C. App. 266, 782 S.E.2d 569 (2016), review denied, 792 S.E.2d 778, 2016 N.C. LEXIS 682 (2016); State v. James, 247 N.C. App. 350, 786 S.E.2d 73 (2016), appeal dismissed, 796 S.E.2d 789, 2017 N.C. LEXIS 134 (2017), aff'd in part and modified in part, 371 N.C. 77, 813 S.E.2d 195 2018 N.C. LEXIS 328 (2018), cert. dismissed, 2019 N.C. LEXIS 99 (2019); State v. Young, 369 N.C. 118, 794 S.E.2d 274 (2016); State v. McLean, 251 N.C. App. 850, 796 S.E.2d 804 (2017); State v. Harris, 253 N.C. App. 322, 800 S.E.2d 676 (2017), review denied, 803 S.E.2d 388, 2017 N.C. LEXIS 607 (N.C. 2017); State v. Roberts, - N.C. App. - ,
836 S.E.2d 287 (2019), review denied, 374 N.C. 269, 839 S.E.2d 350, 2020 N.C. LEXIS 293 (N.C. 2020); State v. Smith, - N.C. App. - , 837 S.E.2d 166 (2019).

II. MURDER IN THE FIRST DEGREE GENERALLY.

Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. State v. Payne, 213 N.C. 719, 197 S.E. 573 (1938); State v. Hawkins, 214 N.C. 326, 199 S.E. 284 (1938); State v. Starnes, 220 N.C. 384, 17 S.E.2d 346 (1941); State v. Chavis, 231 N.C. 307, 56 S.E.2d 678 (1949); State v. Lamm, 232 N.C. 402, 61 S.E.2d 188 (1950); State v. Brown, 249 N.C. 271, 106 S.E.2d 232 (1958); State v. Downey, 253 N.C. 348, 117 S.E.2d 39 (1960); State v. Faust, 254 N.C. 101, 118 S.E.2d 769, cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49 (1961); State v. Moore, 275 N.C. 198, 166 S.E.2d 652 (1969); State v. Robbins, 275 N.C. 537, 169 S.E.2d 858 (1969); State v. Reams, 277 N.C. 391, 178 S.E.2d 65 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74 (1971), overruled on other grounds, State v. Worsley, 336 N.C. 268, 443 S.E.2d 68 (1994); State v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971); State v. Fountain, 282 N.C. 58, 191 S.E.2d 674 (1972); State v. Hamilton, 19 N.C. App. 436, 199 S.E.2d 159, cert. denied, 284 N.C. 256, 200 S.E.2d 656 (1973); State v. Sparks, 285 N.C. 631, 207 S.E.2d 712 (1974), death sentence vacated, 428 U.S. 905, 96 S. Ct. 3213, 49 L. Ed. 2d 1212 (1976); State v. McLaughlin, 286 N.C. 597, 213 S.E.2d 238 (1975), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3206, 49 L. Ed. 2d 1208 (1976); State v. Patterson, 288 N.C. 553, 220 S.E.2d 600 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1211 (1976); State v. Davis, 289 N.C. 500, 223 S.E.2d 296 (1976), death sentence vacated, 429 U.S. 809, 97 S. Ct. 47, 50 L. Ed. 2d 69 (1976); State v. McCall, 289 N.C. 512, 223 S.E.2d 303 (1976), death sentence vacated, 429 U.S. 912, 97 S. Ct. 301, 50 L. Ed. 2d 278 (1976); State v. Smith, 290 N.C. 148, 226 S.E.2d 10, cert. denied, 429 U.S. 932, 97 S. Ct. 339, 50 L. Ed. 2d 301 (1976); State v. Biggs, 292 N.C. 328, 233 S.E.2d 512 (1977); State v. Cates, 293 N.C. 462, 238 S.E.2d 465 (1977); State v. Thomas, 294 N.C. 105, 240 S.E.2d 426 (1978); State v. Hill, 294 N.C. 320, 240 S.E.2d 794 (1978); State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978); State v. Fleming, 296 N.C. 559, 251 S.E.2d 430 (1979); State v. Martin, 303 N.C. 246, 278 S.E.2d 214, cert. denied, 454 U.S. 933, 102 S. Ct. 431, 70 L. Ed. 2d 240, rehearing denied, 454 U.S. 1117, 102 S. Ct. 693, 70 L. Ed. 2d 655 (1981); State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788 (1981); State v. Norris, 303 N.C. 526, 279 S.E.2d 570 (1981); State v. Misenheimer, 304 N.C. 108, 282 S.E.2d 791 (1981); State v. Marshall, 304 N.C. 167, 282 S.E.2d 422 (1981); State v. Calloway, 305 N.C. 747, 291 S.E.2d 622 (1982); State v. Russell Council Judge, 308 N.C. 658, 303 S.E.2d 817 (1983); State v. Hamlet, 312 N.C. 162, 321 S.E.2d 837 (1984); State v. Huffstetler, 312 N.C. 92, 322 S.E.2d 110 (1984), cert. denied, 471 U.S. 1009, 105 S. Ct. 1877, 85 L. Ed. 2d 169 (1985); State v. Brown, 315 N.C. 40, 337 S.E.2d 808 (1985); State v. Gladden, 315 N.C. 398, 340 S.E.2d 673 (1986), cert. denied,
479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166 (1986); State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986); State v. Jackson, 317 N.C. 1, 343 S.E.2d 814 (1986), vacated on other grounds, Jackson v. North Carolina, 479 U.S. 1077, 107 S. Ct. 1271, 94 L. Ed. 2d 133 (1987); State v. Saunders, 317 N.C. 308, 345 S.E.2d 212 (1986); State v. Fisher, 318 N.C. 512, 350 S.E.2d 334 (1986); State v. Bonney, 329 N.C. 61, 405 S.E.2d 145 (1991); State v. Geddie, 345 N.C. 73, 478 S.E.2d 146 (1996), cert. denied, 522 U.S. 825, 118 S. Ct. 86, 139 L. Ed. 2d 43 (1997).

Murder in the first degree is sometimes defined briefly as murder in the second degree plus premeditation. State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1980).

Murder in the first degree differs from murder in the second degree in that it requires premeditation and deliberation. State v. Marshall, 304 N.C. 167, 282 S.E.2d 422 (1981).

For discussion of language found in this section which defines murder in the first degree, see State v. Strickland, 307 N.C. 274, 298 S.E.2d 645 (1983).

Elements of First-Degree Murder. - In order to convict a defendant of first-degree murder the State is required to produce evidence which satisfies the jury beyond a reasonable doubt that he unlawfully killed a person with malice and in the execution of an actual specific intent to kill, formed after premeditation and deliberation. State v. Hamby, 276 N.C. 674, 174 S.E.2d 385 (1970), death sentence vacated, 408 U.S. 937, 92 S. Ct. 2862, 33 L. Ed. 2d 754 (1972); State v. Sanders, 276 N.C. 598, 174 S.E.2d 487 (1970), death sentence vacated, 403 U.S. 948, 91 S. Ct. 2290, 29 L. Ed. 2d 860 (1971); State v. Mitchell, 288 N.C. 360, 218 S.E.2d 332 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1210 (1976).

The elements required for conviction of first degree murder are (1) the unlawful killing of another human being; (2) with malice; and (3) with premeditation and deliberation. State v. Haynesworth, 146 N.C. App. 523, 553 S.E.2d 103 (2001).

Motive Is Not an Essential Element. - It is not necessary to a conviction of murder that the State prove motive. State v. Adams, 136 N.C. 617, 48 S.E. 589 (1904); State v. McDowell, 145 N.C. 563, 59 S.E. 690 (1907); State v. Van Landingham, 283 N.C. 589, 197 S.E.2d 539 (1973).

But Its Presence or Absence May Be Considered. - Motive is not an essential element of murder; however, while not necessary to be proven, motive or the absence of motive is a circumstance to be considered. State v. Barnwell, 17 N.C. App. 299, 194 S.E.2d 63, cert. denied, 283 N.C. 106, 194 S.E.2d 634 (1973).

Circumstances to Be Considered. - There is premeditation and deliberation when there are jury findings of (1) an absence of provocation on the part of the deceased, (2) the dealing of lethal blows by the defendants after the deceased had been rendered helpless, and (3) a killing accomplished in a brutal manner through the infliction of numerous mortal wounds. State v. Johnston, 331 N.C. 680, 417 S.E.2d 228 (1992).

In the context of attempted first-degree murder, circumstances that may tend to prove premeditation and deliberation include: (1) lack of provocation by the intended victim or victims; (2) conduct and statements of the defendant both before and after the attempted killing; (3) threats made against the intended victim or victims by the defendant; and (4) ill will or previous difficulty between the defendant and intended victim or victims. State v. Cozart, 131 N.C. App. 199, 505 S.E.2d 906 (1998), review denied, 350 N.C. 311 (1999), appeal dismissed, cert. denied, 651 S.E.2d 225 (N.C. 2007).

First Degree Murder Is Capital Felony. - Defendant was convicted of a capital felony under G.S. 14-5.2 and G.S. 14-17 because she was convicted of first-degree murder; State v. Grainger, 224 N.C. App. 623, 741 S.E.2d 364 (2012).

The State's case may be strengthened by the showing of a motive when the evidence is circumstantial. State v. Turner, 143 N.C. 641, 57 S.E. 158 (1907); State v. Stratford, 149 N.C. 483, 62 S.E. 882 (1908); State v. Van Landingham, 283 N.C. 589, 197 S.E.2d 539 (1973).

It is not required that the State show motive for a killing, but evidence of motive, if otherwise admissible, is not only competent, but often very important, in strengthening the evidence for the prosecution. State v. Richards, 294 N.C. 474, 242 S.E.2d 844 (1978).

And motive may be shown to identify the prisoner as the perpetrator of the crime, and to establish malice, deliberation, and premeditation. State v. Adams, 138 N.C. 688, 50 S.E. 765 (1905); State v. Wilkins, 158 N.C. 603, 73 S.E. 992 (1912).

But motive, standing alone, is insufficient to support a conviction for murder. State v. Lee, 34 N.C. App. 106, 237 S.E.2d 315 (1977), aff'd, 294 N.C. 299, 240 S.E.2d 449 (1978).

A specific intent to kill is an essential element of first degree murder. State v. Duncan, 282 N.C. 412, 193 S.E.2d 65 (1972).

A specific intent to kill is a necessary constituent of the elements of premeditation and deliberation in first degree murder. State v. Propst, 274 N.C. 62, 161 S.E.2d 560 (1968); State v. Robbins, 275 N.C. 537, 169 S.E.2d 858 (1969); State v. Sparks, 285 N.C. 631, 207 S.E.2d 712 (1974), death sentence vacated, 428 U.S. 905, 96 S. Ct. 3213, 49 L. Ed. 2d 1212 (1976); State v. McLaughlin, 286 N.C. 597, 213 S.E.2d 238 (1975), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3206, 49 L. Ed. 2d 1208 (1976); State v. Cooper, 286 N.C. 549, 213 S.E.2d 305 (1975); State v. Shepherd, 288 N.C. 346, 218 S.E.2d 176 (1975); State v. Hammonds, 290 N.C. 1, 224 S.E.2d 595 (1976).

Before a conviction for murder can be had, an unlawful and intentional taking of another's life must be shown. Sometimes the intent may be imputed by reason of the killing with a deadly weapon, or by circumstances which indicate a reckless indifference to human life, but it must always exist before a charge of murder can be sustained. State v. Stitt, 146 N.C. 643, 61 S.E. 566 (1908).

It is the duty of the State to allege and prove that the killing, though done with a deadly weapon, was intentional or willful. State v. Phillips, 264 N.C. 508, 142 S.E.2d 337 (1965).

There was sufficient evidence to permit the jury to conclude that defendant intended to kill the store-owner's wife; defendant fired several shots upon entering the store, hitting the victims, both of whom were behind the counter, after the wife opened the cash drawer, defendant shot her and took the money, the wife was shot in the head and arm while the owner was shot twice in the chest, killing him, and there was no evidence that either victim provoked defendant or resisted. State v. Poag, 159 N.C. App. 312, 583 S.E.2d 661 (2003), appeal dismissed, cert. denied, 357 N.C. 661, 590 S.E.2d 857 (2003).

Trial court properly denied motion to dismiss the charge of attempted murder of an infant child as the State presented sufficient evidence of defendant's specific intent to kill the child by showing that defendant carjacked a woman and her infant child, drove the woman and her infant child to a deserted area, raped the woman, beat the woman to death, and drove away while leaving the child behind in his diapers on a hot day in grass a foot tall at the deserted area. Additionally, a pediatric critical care expert testified that the infant's injuries, especially sunburns, were life-threatening and that if the infant had not been found by a passerby before nightfall he could have died as a result of exposure and dehydration. State v. Edwards, 174 N.C. App. 490, 621 S.E.2d 333 (2005).

The act of killing, and the guilty intent, must concur to constitute the offense. State v. Scates, 50 N.C. 420 (1858).

The intent to kill must arise from a fixed determination previously formed after weighing the matter. State v. Myers, 309 N.C. 78, 305 S.E.2d 506 (1983); State v. Welch, 316 N.C. 578, 342 S.E.2d 789 (1986).

Burden of Persuasion as to Intent. - On the element of a deliberate and premeditated specific intent to kill in a first-degree murder case defendant has no burden of persuasion at all; the burden of persuasion on the existence of this element remains throughout the trial on the State. State v. Mash, 323 N.C. 339, 372 S.E.2d 532 (1988).

Formation of Intent. - The deliberate strangling of a person to death, taken in consideration with the statement of the victim that if her son left the room the defendant would kill her, and with her plea to the defendant to let her write a letter to her son before he killed her, presents sufficient evidence of intent to kill to submit to the jury. State v. Norman, 331 N.C. 738, 417 S.E.2d 233 (1992).

There was evidence from which a jury could find the defendant formed the intent to kill his wife for some period of time before the killing where the defendant said that as he was arguing with his wife, he remembered what a friend had told him about his son's passing out after holding his breath and the defendant decided to choke his wife until she passed out. State v. Norman, 331 N.C. 738, 417 S.E.2d 233 (1992).

State Must Show That Defendant Had Formed Purpose to Kill Deceased. - Before a conviction for murder in the first degree can be had, the State must show that the prisoner had formed, prior to the killing, with deliberation and premeditation, a purpose to kill deceased. State v. Terry, 173 N.C. 761, 92 S.E. 154 (1917); State v. Benson, 183 N.C. 795, 111 S.E. 869 (1922), overruled on other grounds, State v. Phillips, 264 N.C. 508, 142 S.E.2d 337 (1965). See 5 N.C.L. Rev. 364.

If the circumstances of the killing show a formed design to take life of deceased, the crime is murder in the first degree. State v. Walker, 173 N.C. 780, 92 S.E. 327 (1917); State v. Cain, 178 N.C. 724, 100 S.E. 884 (1919).

If defendant resolved in his mind a fixed purpose to kill his wife and thereafter, because of that previously formed intention and not because of any legal provocation on her part, he deliberately and intentionally shot her, the three essential elements of murder in the first degree, i.e., premeditation, deliberation, and malice, concurred. State v. Moore, 275 N.C. 198, 166 S.E.2d 652 (1969); State v. Martin, 303 N.C. 246, 278 S.E.2d 214, cert. denied, 454 U.S. 933, 102 S. Ct. 431, 70 L. Ed. 2d 240, rehearing denied, 454 U.S. 1117, 102 S. Ct. 693, 70 L. Ed. 2d 655 (1981).

But where defendant, intending to kill a certain person, by mistake inflicts fatal injuries on another, he is guilty in the same degree as though he had killed the person intended, and therefore an instruction that if the jury should be satisfied beyond a reasonable doubt that defendant intended to kill a certain person with malice and with premeditation and deliberation and that by mistake he shot and killed deceased, defendant would be guilty of murder in the first degree is without error. State v. Burney, 215 N.C. 598, 3 S.E.2d 24 (1939).

Where Intent and Act Are Simultaneous There Is No Murder in First Degree. - Where the intent to kill is formed simultaneously with the act of killing, the homicide is not murder in the first degree. State v. Dowden, 118 N.C. 1145, 24 S.E. 722 (1896); State v. Barrett, 142 N.C. 565, 54 S.E. 856 (1906).

Where the killing was the product of a specific intent to kill formed under the influence of the provocation of the quarrel or struggle itself, then there would be no deliberation and hence no murder in the first degree. State v. Misenheimer, 304 N.C. 108, 282 S.E.2d 791 (1981).

Although there may have been time for deliberation, if the purpose to kill was formed and immediately executed in a passion, especially if the passion was aroused by a recent provocation or by mutual combat, the murder is not deliberate and premeditated. State v. Misenheimer, 304 N.C. 108, 282 S.E.2d 791 (1981).

If the accused previously procured a weapon for the purpose of using it, and does use it, the offense is ordinarily murder. State v. Johnson, 172 N.C. 920, 90 S.E. 426 (1916).

Intent May Be Proved by Circumstantial Evidence. - Intent, a necessary element of murder in the second degree, is a mental attitude which can rarely be proved by direct evidence. It must ordinarily be proved by circumstances from which it can be inferred. State v. Hugenberg, 34 N.C. App. 91, 237 S.E.2d 327, cert. denied, 293 N.C. 591, 238 S.E.2d 151 (1977).

Intent Is Question for Jury. - The jury alone may determine whether an intentional killing has been established where no judicial admission of the fact is made by the defendant. State v. Todd, 264 N.C. 524, 142 S.E.2d 154 (1965).

Specific intent to kill shown. - Trial court properly denied defendant's motion to dismiss charge of attempted first degree murder in violation of G.S. 14-17, as defendant's acts of kidnapping his infant daughter and leaving her in a shed in freezing weather for two days, coupled with his stated interest in avoiding having to pay child support, showed a specific intent to kill the child. State v. Pittman, 174 N.C. App. 745, 622 S.E.2d 135 (2005).

State presented sufficient evidence that defendant had the necessary specific intent for premeditated murder, as a reasonable juror could find from the evidence that defendant picked particular men to run over with defendant's vehicle, drove directly at them or lured them into the direct path of the vehicle, and then tried to run over them not once, but in a manner designed to maximize the damage. State v. Shareef, 221 N.C. App. 285, 727 S.E.2d 387 (2012).

Culpable negligence may not be used to satisfy the intent requirements for a first-degree murder charge under this section. State v. Jones, 353 N.C. 159, 538 S.E.2d 917 (2000).

Premeditation and Deliberation Are Essential Elements of First Degree Murder. - For a conviction of murder in the first degree the killing must be done with willful premeditation and determination. State v. McKay, 150 N.C. 813, 63 S.E. 1059 (1909); State v. Baldwin, 152 N.C. 822, 68 S.E. 148 (1910).

The law is fixed by the statute, that the killing must be willful, upon premeditation and with deliberation, and where there is no evidence tending to prove this, the jury should be so instructed, and the question of guilt on the charge of murder in the first degree ought not to be submitted to them. State v. Rhyne, 124 N.C. 847, 33 S.E. 128 (1899).

To convict a defendant of murder in the first degree, when the killing was not perpetrated by one of the means specified by this section and was not committed in the perpetration of or attempt to perpetrate a felony, the State must prove beyond a reasonable doubt that the killing was with premeditation and deliberation. State v. Cooper, 286 N.C. 549, 213 S.E.2d 305 (1975); Barfield v. Harris, 540 F. Supp. 451 (E.D.N.C. 1982), aff'd, 719 F.2d 58 (4th Cir. 1983).

The evidence was sufficient to support conviction for murder by lying in wait where defendant entered victim's home while he was sleeping, armed himself, watched the victim come out of his room and followed him to the laundry room where he shot him. State v. Aikens, 342 N.C. 567, 467 S.E.2d 99 (1996).

Where defendant had to move from hallway into living room to retrieve gun and then return to shoot victim and afterwards defendant concealed the body and rifle and drove them to another town to dispose of them, the evidence permitted a reasonable inference that defendant premeditated and deliberated killing. State v. Jones, 342 N.C. 628, 467 S.E.2d 233 (1996).

Premeditation and Deliberation Must Be Shown in Addition to Presumption of Malice. - The presumption which arises from the use of a deadly weapon in the commission of a homicide is that the killing was unlawful and that it was done with malice, which constitutes murder in the second degree, and in order for such homicide to constitute murder in the first degree the State must show beyond a reasonable doubt that it was done with premeditation and deliberation. State v. Miller, 197 N.C. 445, 149 S.E. 590 (1929); State v. Perry, 209 N.C. 604, 184 S.E. 545 (1936); State v. Floyd, 226 N.C. 571, 39 S.E.2d 598 (1946); State v. Propst, 274 N.C. 62, 161 S.E.2d 560 (1968).

Unless Murder Was Committed by Means Specifically Stated in Section. - This section's plain language requires proof of premeditation only in a murder committed by some means not specifically stated in the statute. Barfield v. Harris, 540 F. Supp. 451 (E.D.N.C. 1982), aff'd, 719 F.2d 58 (4th Cir. 1983).

When a homicide is perpetrated by means of poison, lying in wait, imprisonment, starving or torture, the means and method used involves planning and purpose. Hence, the law presumes premeditation and deliberation. The act speaks for itself. State v. Dunheen, 224 N.C. 738, 32 S.E.2d 322 (1944).

Premeditation and Deliberation Generally. - Premeditation means that the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation. Deliberation means an intent to kill carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation. State v. Small, 328 N.C. 175, 400 S.E.2d 413 (1991).

Premeditation and deliberation generally must be established by circumstantial evidence, because they ordinarily are not susceptible to proof by direct evidence. "Premeditation" means that the defendant formed the specific intent to kill the victim some period of time, however short, before the actual killing. "Deliberation" means an intent to kill executed by the defendant in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation. State v. Bonney, 329 N.C. 61, 405 S.E.2d 145 (1991).

"Premeditation" means that the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation. State v. Cozart, 131 N.C. App. 199, 505 S.E.2d 906 (1998), review denied, 350 N.C. 311 (1999), appeal dismissed, cert. denied, 651 S.E.2d 225 (N.C. 2007).

"Deliberation" means an intent to kill, carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation. State v. Cozart, 131 N.C. App. 199, 505 S.E.2d 906 (1998), review denied, 350 N.C. 311 (1999), appeal dismissed, cert. denied, 651 S.E.2d 225 (N.C. 2007).

Defendant's convictions for attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury did not violate his right to be free of double jeopardy; in order to obtain a conviction for attempted first-murder, the State had to prove premeditation and deliberation, whereas it did not have to prove those elements to obtain a conviction for assault with a deadly weapon, which was a different offense requiring both proof of the use of a deadly weapon and proof of serious injury. State v. Bethea, 173 N.C. App. 43, 617 S.E.2d 687 (2005).

First degree murder charge was not dismissed because the State presented sufficient evidence of premeditation and deliberation; there was no provocation on the part of the victim, and defendant's act of lunging and delivering a fatal blow as the victim was backing away was inconsistent with self-defense. State v. Clark, 231 N.C. App. 421, 752 S.E.2d 709 (2013), review denied, 755 S.E.2d 619, 2014 N.C. LEXIS 217 (2014).

Premeditation and Deliberation Embrace Term "Malice Aforethought". - "Malice aforethought" was a term used in defining murder prior to the time of the adoption of this section dividing murder into degrees. As then used it did not mean an actual, express or preconceived disposition, but imported an intent, at the moment, to do without lawful authority, and without the pressure of necessity, that which the law forbade. As used in this section, the term premeditation and deliberation is more comprehensive and embraces all that is meant by aforethought, and more. State v. Hightower, 226 N.C. 62, 36 S.E.2d 649 (1946); State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1970).

Premeditation is a prior determination to do the act. State v. Cameron, 166 N.C. 379, 81 S.E. 748 (1914); State v. Bowser, 214 N.C. 249, 199 S.E. 31 (1938); State v. Hamilton, 19 N.C. App. 436, 199 S.E.2d 159, cert. denied, 284 N.C. 256, 200 S.E.2d 656 (1973); State v. Baggett, 293 N.C. 307, 237 S.E.2d 827 (1977); State v. Poole, 298 N.C. 254, 258 S.E.2d 339 (1979).

Premeditation means thought of beforehand, for some length of time, however short. State v. Benson, 183 N.C. 795, 111 S.E. 869 (1922), overruled on other grounds, State v. Phillips, 264 N.C. 508, 142 S.E.2d 337 (1965); State v. Hawkins, 214 N.C. 326, 199 S.E. 284 (1938); State v. Chavis, 231 N.C. 307, 56 S.E.2d 678 (1949); State v. Lamm, 232 N.C. 402, 61 S.E.2d 188 (1950); State v. Brown, 249 N.C. 271, 106 S.E.2d 232 (1958); State v. Faust, 254 N.C. 101, 118 S.E.2d 769, cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49 (1961); State v. Sanders, 276 N.C. 598, 174 S.E.2d 487 (1970), death sentence vacated, 403 U.S. 948, 91 S. Ct. 2290, 29 L. Ed. 2d 860 (1971); State v. Reams, 277 N.C. 391, 178 S.E.2d 65 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74 (1971), overruled on other grounds, State v. Worsley, 336 N.C. 268, 443 S.E.2d 68 (1994); State v. Fountain, 282 N.C. 58, 191 S.E.2d 674 (1972); State v. Britt, 285 N.C. 256, 204 S.E.2d 817 (1974); State v. Bush, 289 N.C. 159, 221 S.E.2d 333, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976); State v. Davis, 289 N.C. 500, 223 S.E.2d 296, death sentence vacated, 429 U.S. 809, 97 S. Ct. 47, 50 L. Ed. 2d 69 (1976); State v. Smith, 290 N.C. 148, 226 S.E.2d 10, cert. denied, 429 U.S. 932, 97 S. Ct. 339, 30 L. Ed. 2d 301 (1976); State v. Biggs, 292 N.C. 328, 233 S.E.2d 512 (1977); State v. Cates, 293 N.C. 462, 238 S.E.2d 465 (1977); State v. Thomas, 294 N.C. 105, 240 S.E.2d 426 (1978); State v. Hill, 294 N.C. 320, 240 S.E.2d 794 (1978); State v. Barbour, 295 N.C. 66, 243 S.E.2d 380 (1978); State v. Corn, 303 N.C. 293, 278 S.E.2d 221 (1981); State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788 (1981); State v. Marshall, 304 N.C. 167, 282 S.E.2d 422 (1981); State v. Calloway, 305 N.C. 747, 291 S.E.2d 622 (1982); State v. Tysor, 307 N.C. 679, 300 S.E.2d 366 (1983); State v. Lowery, 309 N.C. 763, 309 S.E.2d 232 (1983); State v. Hamlet, 312 N.C. 162, 321 S.E.2d 837 (1984); State v. Huffstetler, 312 N.C. 92, 322 S.E.2d 110 (1984), cert. denied, 471 U.S. 1009, 105 S. Ct. 1877, 85 L. Ed. 2d 169 (1985); State v. Fields, 315 N.C. 191, 337 S.E.2d 518 (1985); State v. Welch, 316 N.C. 578, 342 S.E.2d 789 (1986); State v. Saunders, 317 N.C. 308, 345 S.E.2d 212 (1986).

Premeditation means that defendant formed the specific intent to kill the victim for some period of time, however short, before the actual killing. State v. Misenheimer, 304 N.C. 108, 282 S.E.2d 791 (1981); State v. Truesdale, 340 N.C. 229, 456 S.E.2d 299 (1995).

"Premeditation" means that defendant formed the specific intent to kill for a period of time, however short, before the killing. State v. Lyons, 340 N.C. 646, 459 S.E.2d 770 (1995).

Deliberation does not require brooding or reflection for any appreciable length of time, but imports the execution of an intent to kill in a cool state of blood without legal provocation, and in furtherance of a fixed design. State v. Britt, 285 N.C. 256, 204 S.E.2d 817 (1974); State v. Myers, 299 N.C. 671, 263 S.E.2d 768 (1980); State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788 (1981).

Deliberation means that the action was done in a cool state of blood and does not require reflection or brooding for an apparent length of time, but rather an intention to kill executed by defendant in furtherance of a fixed design to gratify a feeling of revenge or to accomplish some unlawful purpose and not under the influence of a violent passion, suddenly aroused by just cause or legal provocation. State v. Bush, 289 N.C. 159, 221 S.E.2d 333, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976).

Deliberation Means That the Act Is Done in Cool State of Blood. - It does not mean brooding over it or reflecting upon it for a week, a day or an hour, or any other appreciable length of time, but it means an intention to kill, executed by the defendant in a cool state of blood, in furtherance of a fixed design to gratify a feeling of revenge, or to accomplish some unlawful purpose, and not under the influence of a violent passion, suddenly aroused by some lawful or just cause or legal provocation. State v. Benson, 183 N.C. 795, 111 S.E. 869 (1922), overruled on other grounds, State v. Phillips, 264 N.C. 508, 142 S.E.2d 337 (1965); State v. Bowser, 214 N.C. 249, 199 S.E. 31 (1938); State v. Hawkins, 214 N.C. 326, 199 S.E. 284 (1938); State v. Chavis, 231 N.C. 307, 56 S.E.2d 678 (1949); State v. Lamm, 232 N.C. 402, 61 S.E.2d 188 (1950); State v. Brown, 249 N.C. 271, 106 S.E.2d 232 (1958); State v. Faust, 254 N.C. 101, 118 S.E.2d 769, cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49 (1961); State v. Reams, 277 N.C. 391, 178 S.E.2d 65 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74 (1971), overruled on other grounds, State v. Worsley, 336 N.C. 268, 443 S.E.2d 68 (1994); State v. Fountain, 282 N.C. 58, 191 S.E.2d 674 (1972); State v. Hamilton, 19 N.C. App. 436, 199 S.E.2d 159, cert. denied, 284 N.C. 256, 200 S.E.2d 656 (1973); State v. Barbour, 295 N.C. 66, 243 S.E.2d 380 (1978); State v. Poole, 298 N.C. 254, 258 S.E.2d 339 (1979); State v. Forrest, 321 N.C. 186, 362 S.E.2d 252 (1987).

Deliberation means an intention to kill, executed by the defendant in a cool state of blood, in furtherance of a fixed design or to accomplish some unlawful purpose, and not under the influence of a violent passion, suddenly aroused by some lawful or just cause or legal provocation. State v. Sanders, 276 N.C. 598, 174 S.E.2d 487 (1970), death sentence vacated, 403 U.S. 948, 91 S. Ct. 2290, 29 L. Ed. 2d 860 (1971); State v. Biggs, 292 N.C. 328, 233 S.E.2d 512 (1977); State v. Marshall, 304 N.C. 167, 282 S.E.2d 422 (1981); State v. Bush, 307 N.C. 152, 297 S.E.2d 563 (1982); State v. Tysor, 307 N.C. 679, 300 S.E.2d 366 (1983); State v. Russell Council Judge, 308 N.C. 658, 303 S.E.2d 817 (1983); State v. Lowery, 309 N.C. 763, 309 S.E.2d 232 (1983); State v. Hamlet, 312 N.C. 162, 321 S.E.2d 837 (1984); State v. Huffstetler, 312 N.C. 92, 322 S.E.2d 110 (1984), cert. denied, 471 U.S. 1009, 105 S. Ct. 1877, 85 L. Ed. 2d 169 (1985); State v. Brown, 315 N.C. 40, 337 S.E.2d 808 (1985); State v. Gladden, 315 N.C. 398, 340 S.E.2d 673 (1986), cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166 (1986); State v. Barts, 316 N.C. 666, 343 S.E.2d 828 (1986); State v. Fisher, 318 N.C. 512, 350 S.E.2d 334 (1986).

Deliberation means an intention to kill, executed by defendant in a cool state of blood, in furtherance of a fixed design or to accomplish some unlawful purpose. State v. Davis, 289 N.C. 500, 223 S.E.2d 296, death sentence vacated, 429 U.S. 809, 97 S. Ct. 47, 50 L. Ed. 2d 69 (1976); State v. Smith, 290 N.C. 148, 226 S.E.2d 10, cert. denied, 429 U.S. 932, 97 S. Ct. 339, 50 L. Ed. 2d 301 (1976); State v. Cates, 293 N.C. 462, 238 S.E.2d 465 (1977); State v. Thomas, 294 N.C. 105, 240 S.E.2d 426 (1978); State v. Hill, 294 N.C. 320, 240 S.E.2d 794 (1978).

Deliberation means revolving over in the mind. A deliberate act is one done in a cool state of blood in furtherance of some fixed design. State v. Robbins, 275 N.C. 537, 169 S.E.2d 858 (1969).

An unlawful killing is committed with deliberation if it is done in a "cool state of blood," without legal provocation, and in furtherance of a fixed design to gratify a feeling of revenge, or to accomplish some unlawful purpose. State v. Corn, 303 N.C. 293, 278 S.E.2d 221 (1981); State v. Calloway, 305 N.C. 747, 291 S.E.2d 622 (1982); State v. Russell Council Judge, 308 N.C. 658, 303 S.E.2d 817 (1983); State v. Myers, 309 N.C. 78, 305 S.E.2d 506 (1983); State v. Welch, 316 N.C. 578, 342 S.E.2d 789 (1986); State v. Saunders, 317 N.C. 308, 345 S.E.2d 212 (1986).

Deliberation means that the defendant formed the intent to kill in a cool state of blood and not as a result of a violent passion due to sufficient provocation. State v. Truesdale, 340 N.C. 229, 456 S.E.2d 299 (1995).

"Deliberation" means that defendant formed an intent to kill and carried out that intent in a cool state of blood, in furtherance of a fixed design for revenge or other unlawful purpose and not under the influence of a violent passion, suddenly aroused by some lawful or just cause or legal provocation. State v. Lyons, 340 N.C. 646, 459 S.E.2d 770 (1995).

A defendant is said to have deliberated over a killing if he acted in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose, and he was not under the influence of a violent passion suddenly aroused by lawful or just cause or legal provocation. State v. Owen, 130 N.C. App. 505, 503 S.E.2d 426 (1998), cert. denied, 349 N.C. 372, 525 S.E.2d 188 (1998).

Deliberation means that the intent to kill was formed while defendant was in a cool state of blood and not under the influence of a violent passion suddenly aroused by sufficient provocation. State v. Misenheimer, 304 N.C. 108, 282 S.E.2d 791 (1981); State v. Fullwood, 323 N.C. 371, 373 S.E.2d 518 (1988), sentence vacated and remanded for further consideration at, 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602 (1990) in light of, 414 U.S. 1000, 94 S. Ct. 353, 38 L. Ed. 2d 235 (1973).

"Cool state of blood" does not mean the absence of passion and emotions, but an unlawful killing is deliberate and premeditated if done pursuant to a fixed design to kill, notwithstanding that defendant was angry or in an emotional state at the time, unless such anger or emotion was such as to disturb the faculties and reason. State v. Britt, 285 N.C. 256, 204 S.E.2d 817 (1974); State v. Marshall, 304 N.C. 167, 282 S.E.2d 422 (1981); State v. Saunders, 317 N.C. 308, 345 S.E. 212 (1986); State v. Fisher, 318 N.C. 512, 350 S.E.2d 334 (1986).

In the context of determining the existence of deliberation, however, the term "cool state of blood" does not mean an absence of passion and emotion. One may deliberate, may premeditate, and may intend to kill after premeditation and deliberation, although prompted and, to a large extent, controlled by passion at the time. State v. Bonney, 329 N.C. 61, 405 S.E.2d 145 (1991).

"Deliberation" means that the intent to kill was formed while the defendant was in a cool state of blood and not under the influence of a violent passion suddenly aroused by sufficient provocation. In the context of determining the existence of deliberation, however, the term "cool state of blood" does not mean "an absence of passion and emotion". State v. Vause, 328 N.C. 231, 400 S.E.2d 57 (1991).

Requirement of a cool state of blood does not mean that the defendant must be calm or tranquil. Premeditation and deliberation may be present even though the defendant is angry at the time of the killing, if he acts in the furtherance of a fixed design to kill. State v. Hamilton, 19 N.C. App. 436, 199 S.E.2d 159, cert. denied, 284 N.C. 256, 200 S.E.2d 656 (1973); State v. Fields, 315 N.C. 191, 337 S.E.2d 518 (1985).

Defendant's Emotion Must Not Have Disturbed His Faculties or Reason. - The term "cool state of blood" does not mean that the defendant must be calm or tranquil or display the absence of emotion; rather, the defendant's anger or emotion must not have been such as to disturb the defendant's faculties and reason. State v. Tysor, 307 N.C. 679, 300 S.E.2d 366 (1983).

The phrase "cool state of blood" means that the defendant's anger or emotion must not have been such as to overcome the defendant's reason. State v. Hamlet, 312 N.C. 162, 321 S.E.2d 837 (1984); State v. Brown, 315 N.C. 40, 337 S.E.2d 808 (1985); State v. Gladden, 315 N.C. 398, 340 S.E.2d 673 (1986), cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166 (1986); State v. Barts, 316 N.C. 666, 343 S.E.2d 828 (1986).

Passion does not always reduce the crime of murder, since a man may deliberate, may premeditate, and may intend to kill after premeditation and deliberation, although prompted and to a large extent controlled by passion at the time; if the design to kill was formed with deliberation and premeditation, it is immaterial that defendant was in a passion or excited when the design was carried into effect. State v. Misenheimer, 304 N.C. 108, 282 S.E.2d 791 (1981).

An unlawful killing is deliberate and premeditated if done pursuant to a fixed design to kill, notwithstanding that defendant was angry or in an emotional state at the time, unless such anger or emotion was such as to disturb the faculties and reason. State v. Fullwood, 323 N.C. 371, 373 S.E.2d 518 (1988), sentence vacated and remanded for further consideration at, 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602 (1990) in light of State v. Spaulding, 288 N.C. 397, 219 S.E.2d 178 (1975).

Killing committed during the course of a quarrel or scuffle may constitute first-degree murder provided defendant formed the intent to kill in a cool state of blood before the quarrel or scuffle began and the killing during the quarrel was the product of this earlier formed intent. State v. Misenheimer, 304 N.C. 108, 282 S.E.2d 791 (1981).

The fact that there was a quarrel does not preclude the possibility that the defendant formed the intent to kill with premeditation and deliberation. State v. Russell Council Judge, 308 N.C. 658, 303 S.E.2d 817 (1983).

No particular period of time is necessary to constitute premeditation and deliberation for a conviction of murder in the first degree. If the purpose to kill at all events has been deliberately formed, the interval which elapses before its execution is immaterial. State v. Coffey, 174 N.C. 814, 94 S.E. 416 (1917); State v. Holdsclaw, 180 N.C. 731, 105 S.E. 181 (1920).

Weighing the purpose to kill long enough to form a fixed design, and the putting of such design into execution at a future period, no matter how long deferred, constitutes premeditation and deliberation sufficient to sustain a conviction of murder in the first degree. State v. Dowden, 118 N.C. 1145, 24 S.E. 722 (1896).

Where one forms a purpose to take the life of another and weighs this purpose in his mind with deliberation and premeditation for some period of time, however short, it is immaterial that the defendant was in a passion or excited when the design was carried into effect. State v. Misenheimer, 304 N.C. 108, 282 S.E.2d 791 (1981).

The fact that there was a quarrel does not preclude the possibility that the defendant formed the intent to kill with premeditation and deliberation. State v. Russell Council Judge, 308 N.C. 658, 303 S.E.2d 817 (1983).

Where one forms a purpose to take the life of another and weighs this purpose in his mind long enough to form a fixed design or determination to kill at a subsequent time, no matter how soon or how late, and pursuant thereto kills, this would be a killing with premeditation and deliberation and would be murder in the first degree. State v. Bock, 288 N.C. 145, 217 S.E.2d 513 (1975), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3208, 49 L. Ed. 2d 1209 (1976).

Premeditation means thought over beforehand for some length of time, however short, but no particular time is required for the mental process of premeditation. State v. Robbins, 275 N.C. 537, 169 S.E.2d 858 (1969); State v. Myers, 299 N.C. 671, 263 S.E.2d 768 (1980); State v. Gladden, 315 N.C. 398, 340 S.E.2d 673 (1986), cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166 (1986); State v. Barts, 316 N.C. 666, 343 S.E.2d 828 (1986); State v. Fisher, 318 N.C. 512, 350 S.E.2d 334 (1986).

Deliberation and premeditation need not be of any perceptible length of time. State v. Bynum, 175 N.C. 777, 95 S.E. 101 (1917); State v. Burney, 215 N.C. 598, 3 S.E.2d 24 (1939); State v. Hammonds, 216 N.C. 235, 4 S.E.2d 439 (1939).

No fixed length of time is required for the mental processes of premeditation and deliberation constituting first-degree murder. State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788 (1981).

The killing of a human being after the fixed purpose to do so has been formed, for however short a time, is sufficient for the conviction of murder in the first degree. State v. Walker, 173 N.C. 780, 92 S.E. 327 (1917).

It Is Sufficient if Premeditation and Deliberation Occur Prior to the Killing. - No fixed length of time is required for the mental processes of premeditation and deliberation constituting an element of the offense of murder in the first degree, and it is sufficient if these processes occur prior to, and not simultaneously with, the killing. State v. Walters, 275 N.C. 615, 170 S.E.2d 484 (1969); State v. Perry, 276 N.C. 339, 172 S.E.2d 541 (1970).

Premeditation is thought beforehand for some length of time, however short. No particular length of time is required; it is sufficient if the process of premeditation occurred at any point prior to the killing. State v. Myers, 309 N.C. 78, 305 S.E.2d 506 (1983); State v. Brown, 315 N.C. 40, 337 S.E.2d 808 (1985), cert. denied, 476 U.S. 1165, 106 S. Ct. 2293, 90 L. Ed. 2d 733 (1986).

Time for Premeditation Varies with Circumstances. - The true test for premeditation is not the duration of time as much as it is the extent of the reflection and the time for premeditation would naturally vary with different individuals and under differing circumstances. State v. Buchanan, 287 N.C. 408, 215 S.E.2d 80 (1975), overruled on other grounds, State v. Leach, 340 N.C. 236, 456 S.E.2d 785 (1995).

Proof of Premeditation and Deliberation Is Proof of Intent to Kill. - Since a specific intent to kill is a necessary constituent of the elements of premeditation and deliberation, proof of premeditation and deliberation is also proof of intent to kill. State v. Lowery, 309 N.C. 763, 309 S.E.2d 232 (1983); State v. Quesinberry, 319 N.C. 228, 354 S.E.2d 446 (1987), vacated and remanded for further consideration at, 494 U.S. 1022, 110 S. Ct. 1465, 108 L. Ed. 2d 603 (1990), in light of McKoy v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990), death sentence vacated and remanded for new capital sentencing proceeding, 328 N.C. 288, 401 S.E.2d 632 (1991).

Premeditation and Deliberation Must Usually Be Proved by Circumstantial Evidence. - Premeditation and deliberation are not ordinarily susceptible of proof by direct evidence and therefore must usually be proved by circumstantial evidence. State v. Watson, 222 N.C. 672, 24 S.E.2d 540 (1943); State v. Faust, 254 N.C. 101, 118 S.E.2d 769, cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49 (1961); State v. Walters, 275 N.C. 615, 170 S.E.2d 484 (1969); State v. Perry, 276 N.C. 339, 172 S.E.2d 541 (1970); State v. Sanders, 276 N.C. 598, 174 S.E.2d 487 (1970), death sentence vacated, 403 U.S. 948, 91 S. Ct. 2290, 29 L. Ed. 2d 860 (1971); State v. Duncan, 282 N.C. 412, 193 S.E.2d 65 (1972); State v. Van Landingham, 283 N.C. 589, 197 S.E.2d 539 (1973); State v. Hamilton, 19 N.C. App. 436, 199 S.E.2d 159, cert. denied, 284 N.C. 256, 200 S.E.2d 656 (1973); State v. DeGregory, 285 N.C. 122, 203 S.E.2d 794 (1974); State v. Britt, 285 N.C. 256, 204 S.E.2d 817 (1974); State v. Sparks, 285 N.C. 631, 207 S.E.2d 712 (1974), death sentence vacated, 428 U.S. 905, 96 S. Ct. 3213, 49 L. Ed. 2d 1212 (1976); State v. McLaughlin, 286 N.C. 597, 213 S.E.2d 238 (1975), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3206, 49 L. Ed. 2d 1208 (1976); State v. Bock, 288 N.C. 145, 217 S.E.2d 513 (1975), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3208, 49 L. Ed. 2d 1209 (1976); State v. Shepherd, 288 N.C. 346, 218 S.E.2d 176 (1975); State v. Mitchell, 288 N.C. 360, 218 S.E.2d 332 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1210 (1976); State v. Griffin, 288 N.C. 437, 219 S.E.2d 48 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3210, 49 L. Ed. 2d 1210 (1976); State v. Patterson, 288 N.C. 553, 220 S.E.2d 600 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1211 (1976); State v. Davis, 289 N.C. 500, 223 S.E.2d 296, death sentence vacated, 429 U.S. 809, 97 S. Ct. 47, 50 L. Ed. 2d 69 (1976); State v. Strickland, 290 N.C. 169, 225 S.E.2d 531 (1976); State v. Smith, 290 N.C. 148, 226 S.E.2d 10, cert. denied, 429 U.S. 932, 97 S. Ct. 339, 50 L. Ed. 2d 301 (1976); State v. Cates, 293 N.C. 462, 238 S.E.2d 465 (1977); State v. Thomas, 294 N.C. 105, 240 S.E.2d 426 (1978); State v. Hill, 294 N.C. 320, 240 S.E.2d 794 (1978); State v. Barbour, 295 N.C. 66, 243 S.E.2d 380 (1978); State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788 (1981); State v. Marshall, 304 N.C. 167, 282 S.E.2d 422 (1981); State v. Misenheimer, 304 N.C. 108, 282 S.E.2d 791 (1981); State v. Calloway, 305 N.C. 747, 291 S.E.2d 622 (1982); State v. Hamlet, 312 N.C. 162, 321 S.E.2d 837 (1984); State v. Gladden, 315 N.C. 398, 340 S.E.2d 673 (1986); State v. Quesinberry, 319 N.C. 228, 354 S.E.2d 446 (1987), vacated and remanded for further consideration at, 494 U.S. 1022, 110 S. Ct. 1465, 108 L. Ed. 2d 603 (1990), in light of McKoy v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990), death sentence vacated, remanded for new capital sentencing proceeding, 328 N.C. 288, 401 S.E.2d 632 (1991).

Premeditation and deliberation usually are not proved by direct evidence but by actions and circumstances surrounding the killing. State v. Truesdale, 340 N.C. 229, 456 S.E.2d 299 (1995).

Premeditation and deliberation are processes of the mind and are not subject to proof by direct evidence but must be proved, if at all, by circumstantial evidence. State v. Vause, 328 N.C. 231, 400 S.E.2d 57 (1991).

Since They Involve Processes of the Mind. - Since premeditation and deliberation refer to processes of the mind, they must almost always be proved, if at all, by circumstantial evidence. State v. Potter, 295 N.C. 126, 244 S.E.2d 397 (1978); State v. Corn, 303 N.C. 293, 278 S.E.2d 221 (1981); State v. Huffstetler, 312 N.C. 92, 322 S.E.2d 110 (1984), cert. denied, 471 U.S. 1009, 105 S. Ct. 1877, 85 L. Ed. 2d 169 (1985); State v. Brown, 315 N.C. 40, 337 S.E.2d 808 (1985); State v. Fisher, 318 N.C. 512, 350 S.E.2d 334 (1986).

Premeditation and deliberation relate to mental processes and ordinarily are not readily susceptible to proof by direct evidence. Instead, they usually must be proved by circumstantial evidence. State v. Jackson, 317 N.C. 1, 343 S.E.2d 814 (1986), sentence vacated and remanded for further consideration at, 479 U.S. 1077, 107 S. Ct. 1271, 94 L. Ed. 2d 133 (1987); 403 U.S. 948, 91 S. Ct. 2289, 29 L. Ed. 2d 860 (1971).

Prosecutor's Statements That Jury Could Infer Premeditation from Circumstances Held Permissible. - Where defendant was convicted of murdering victim by strangulation, prosecutor's statements did not impermissibly eliminate the State's burden to prove the elements of premeditation and deliberation; because the prosecutor was arguing that the jury could infer premeditation and deliberation from the circumstances and manner in which defendant killed the victim, the argument was not an incorrect statement of law. State v. Richardson, 328 N.C. 505, 402 S.E.2d 401 (1991).

Comments by Prosecutor. - Defendant's first degree murder conviction for stabbing his wife to death was affirmed because the prosecutor's statements as to the evidence were not grossly improper and the trial court's failure to intervene ex mero motu was not error. State v. Nguyen, 178 N.C. App. 447, 632 S.E.2d 197, appeal dismissed, cert. denied, 360 N.C. 653, 637 S.E.2d 189 (2006).

Circumstances to Be Considered in Determining Premeditation and Deliberation. - Among the circumstances to be considered in determining whether a killing was with premeditation and deliberation are: (1) want of provocation on the part of the deceased; (2) the conduct and statements of the defendant before and after the killing; (3) threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of the deceased; (4) ill-will or previous difficulty between the parties; (5) the dealing of lethal blows after the deceased has been felled and rendered helpless; and (6) evidence that the killing was done in a brutal manner. State v. Hamlet, 312 N.C. 162, 321 S.E.2d 837 (1984); State v. Huffstetler, 312 N.C. 92, 322 S.E.2d 110 (1984), cert. denied, 471 U.S. 1009, 105 S. Ct. 1877, 85 L. Ed. 2d 169 (1985); State v. Brown, 315 N.C. 40, 337 S.E.2d 808 (1985); State v. Gladden, 315 N.C. 398, 340 S.E.2d 673 (1986), cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166 (1986); State v. Jackson, 317 N.C. 1, 343 S.E.2d 814 (1986), vacated on other grounds, Jackson v. North Carolina, 479 U.S. 1077, 107 S. Ct. 1271, 94 L. Ed. 2d 133 (1987); State v. Barts, 316 N.C. 666, 343 S.E.2d 828 (1986); State v. Fisher, 318 N.C. 512, 350 S.E.2d 334 (1986); State v. Lloyd, 89 N.C. App. 630, 366 S.E.2d 912, cert. denied, 322 N.C. 483, 370 S.E.2d 231, 370 S.E.2d 232 (1988).

For additional cases setting out some or all of the above circumstances as factors to be considered in determining whether a killing was with premeditation and deliberation, see State v. Hawkins, 214 N.C. 326, 199 S.E. 284 (1938); State v. Chavis, 231 N.C. 307, 56 S.E.2d 678 (1949); State v. Lamm, 232 N.C. 402, 61 S.E.2d 188 (1950); State v. Brown, 249 N.C. 271, 106 S.E.2d 232 (1958); State v. Faust, 254 N.C. 101, 118 S.E.2d 769, cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49 (1961); State v. Walters, 275 N.C. 615, 170 S.E.2d 484 (1969); State v. Hamby, 276 N.C. 674, 174 S.E.2d 385 (1970), death sentence vacated, 408 U.S. 937, 92 S. Ct. 2862, 33 L. Ed. 2d 754 (1972); State v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971); State v. Fountain, 282 N.C. 58, 191 S.E.2d 674 (1972); State v. Duncan, 282 N.C. 412, 193 S.E.2d 65 (1972); State v. Van Landingham, 283 N.C. 589, 197 S.E.2d 539 (1973); State v. DeGregory, 285 N.C. 122, 203 S.E.2d 794 (1974); State v. Britt, 285 N.C. 256, 204 S.E.2d 817 (1974); State v. Bock, 288 N.C. 145, 217 S.E.2d 513 (1975), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3208, 49 L. Ed. 2d 1209 (1976); State v. Shepherd, 288 N.C. 346, 218 S.E.2d 176 (1975); State v. Mitchell, 288 N.C. 360, 218 S.E.2d 332 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1210 (1976); State v. Griffin, 288 N.C. 437, 219 S.E.2d 48 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3210, 49 L. Ed. 2d 1210 (1976); State v. Spaulding, 288 N.C. 397, 219 S.E.2d 178 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3210, 49 L. Ed. 2d 1210 (1976); State v. Bush, 289 N.C. 159, 221 S.E.2d 333, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976); State v. Davis, 289 N.C. 500, 223 S.E.2d 296, death sentence vacated, 429 U.S. 809, 97 S. Ct. 47, 50 L. Ed. 2d 69 (1976); State v. Stewart, 292 N.C. 219, 232 S.E.2d 443 (1977); State v. Cates, 293 N.C. 462, 238 S.E.2d 465 (1977); State v. Thomas, 294 N.C. 105, 240 S.E.2d 426 (1978); State v. Hill, 294 N.C. 320, 240 S.E.2d 794 (1978); State v. Barbour, 295 N.C. 66, 243 S.E.2d 380 (1978); State v. Potter, 295 N.C. 126, 244 S.E.2d 397 (1978); State v. Myers, 299 N.C. 671, 263 S.E.2d 768 (1980); State v. Corn, 303 N.C. 293, 278 S.E.2d 221 (1981); State v. Calloway, 305 N.C. 747, 291 S.E.2d 622 (1982); State v. Hamlet, 312 N.C. 162, 321 S.E.2d 837 (1984); State v. Saunders, 317 N.C. 308, 345 S.E.2d 212 (1986); State v. Harris, 323 N.C. 112, 371 S.E.2d 689 (1988).

Among the circumstances that may be considered in determining whether a killing was with premeditation and deliberation are (1) a lack of provocation on the part of the deceased, (2) the conduct and statements of the defendant before and after the killing, (3) the dealing of lethal blows after the deceased has been felled and rendered helpless, (4) evidence that the killing was done in a brutal manner, and (5) the nature and number of the victim's wounds. State v. Quesinberry, 319 N.C. 228, 354 S.E.2d 446 (1987), aff'd, 325 N.C. 125, 381 S.E.2d 681 (1989), vacated and remanded for further consideration at, 494 U.S. 1022, 110 S. Ct. 1465, 108 L. Ed. 2d 603 (1990), in light of McKoy v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990), death sentence vacated, remanded for new capital sentencing proceeding, State v. Quesinberry, 328 N.C. 288, 401 S.E.2d 632 (1991); State v. Holshouser, 15 N.C. App. 469, 190 S.E.2d 420 (1972).

Among other circumstances to be considered in determining whether a killing was with premeditation and deliberation are: (1) want of provocation on the part of the deceased; (2) the conduct and statements of the defendant before and after the killing; (3) threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of the deceased; (4) ill-will or previous difficulty between the parties; (5) the dealing of lethal blows after the deceased has been felled and rendered helpless; and (6) evidence that the killing was done in a brutal manner. State v. Small, 328 N.C. 175, 400 S.E.2d 413 (1991).

Among other circumstances from which premeditation and deliberation may be inferred are (1) lack of provocation on the part of the deceased, (2) the conduct and statements of the defendant before and after the killing, (3) threats and declarations of the defendant before and during the occurrence giving rise to the death of the deceased, (4) ill-will or previous difficulty between the parties, (5) the dealing of lethal blows after the deceased has been felled and rendered helpless, (6) evidence that the killing was done in a brutal manner, and (7) the nature and number of the victim's wounds. State v. Vause, 328 N.C. 231, 400 S.E.2d 57 (1991).

Same - Brutality. - Evidence tending to show that defendant stabbed his victim no less than thirty-nine times and that he stabbed her repeatedly with sufficient force to bend the first knife he used before he picked up a second knife to complete the murderous attack permitted a reasonable finding that the killing was especially brutal and the defendant struck many of the deadly blows after the victim had been felled and rendered helpless. Such evidence, standing alone, was substantial evidence tending to show premeditation and deliberation. State v. Vause, 328 N.C. 231, 400 S.E.2d 57 (1991).

Same - Previous Hostile Feelings and Prior Assaults. - Previously existing hostile feelings between defendant and deceased, a prior assault upon the deceased by defendant, the use of grossly excessive force and killing in an unusually brutal way have all been held to be circumstances tending to show premeditation and deliberation. State v. Patterson, 288 N.C. 553, 220 S.E.2d 600 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1211 (1976).

In a prosecution for murder in the first degree, malice on the part of defendant could be established by inference from the use of a deadly weapon and by surrounding circumstances which included two earlier assaults and accusations concerning deceased's romantic relationship with defendant's wife. State v. Alston, 44 N.C. App. 72, 259 S.E.2d 767 (1979), cert. denied, 304 N.C. 589, 290 S.E.2d 709 (1981).

Same - Nature and Number of Wounds. - The nature and number of the victims' wounds is one circumstance from which an inference of premeditation and deliberation can be drawn. State v. Brown, 306 N.C. 151, 293 S.E.2d 569, cert. denied, 459 U.S. 1080, 103 S. Ct. 503, 74 L. Ed. 2d 642 (1982); State v. Brown, 315 N.C. 40, 337 S.E.2d 808 (1985); State v. Gladden, 315 N.C. 398, 340 S.E.2d 673 (1986), cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166 (1986); State v. Barts, 316 N.C. 666, 343 S.E.2d 828 (1986); State v. Fisher, 318 N.C. 512, 350 S.E.2d 334 (1986).

In determining whether a defendant acted after premeditation and deliberation, the nature of wounds to a victim is a circumstance to be considered. State v. Bearthes, 329 N.C. 149, 405 S.E.2d 170 (1991).

Sufficient evidence of premeditation supported defendant's conviction of first-degree murder under G.S. 14-17, where defendant stabbed the victim multiple times in a bar after the victim called defendant names and punched defendant; the evidence of premeditation, which taken together was adequate for a jury to convict, included that defendant slashed the victim multiple times and that defendant left the scene. State v. Dennison, 171 N.C. App. 504, 615 S.E.2d 404 (2005), cert. denied, appeal dismissed, 360 N.C. 69, 622 S.E.2d 113 (2005).

Same - Unseemly Conduct Toward and Concealment of Body. - Any unseemly conduct toward the corpse of the person slain, or any indignity offered it by the slayer, and also concealment of the body, are evidence of express malice, and of premeditation and deliberation in the slaying, depending, of course, upon the particular circumstances of the case. State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572 (1971), death sentence vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761 (1972).

Same - Vicious and Brutal Slaying. - Premeditation and deliberation may be inferred from the vicious and brutal slaying of a human being. State v. Reams, 277 N.C. 391, 178 S.E.2d 65 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74 (1971), overruled on other grounds, State v. Worsley, 336 N.C. 268, 443 S.E.2d 68 (1994).

The ingredients of premeditation and deliberation necessary in first-degree murder may be inferred from the vicious and brutal circumstances of the homicide indicating a complete lack of provocation and a viciousness which demonstrates that death was the actor's objective. State v. DeGregory, 285 N.C. 122, 203 S.E.2d 794 (1974).

State Must Prove Premeditation and Deliberation in Death by Strangulation. - Because strangulation is not among the methods of killing expressly established by this section as murder in the first degree, the State must prove premeditation and deliberation. State v. Richardson, 328 N.C. 505, 402 S.E.2d 401 (1991).

Inference of Malice from Attack on Infant. - Where defendant had nearly exclusive care of 30 day old child on the day in question, and testimony that fatal blows received by the victim likely occurred very shortly, perhaps a minute, before death, it was proper to instruct the jury that malice could be inferred from the attack of human hands alone. State v. Perdue, 320 N.C. 51, 357 S.E.2d 345 (1987).

The jury's finding of malice required for a second-degree murder conviction was supported by the State's evidence that defendant's blood alcohol level was 0.113 three hours after the accident, that the collision occurred in the victim's lane of travel, and that, at the time of the accident, charges of driving while impaired and driving while license revoked were pending against defendant. State v. Gray, 137 N.C. App. 345, 528 S.E.2d 46 (2000).

Where an adult has exclusive custody of a child for a period of time, and during such time the child suffers injuries which are neither self-inflicted nor accidental, the evidence is sufficient to create an inference that the adult inflicted the injuries. State v. Perdue, 320 N.C. 51, 357 S.E.2d 345 (1987).

No Presumption of Premeditation and Deliberation from Use of Deadly Weapon. - Premeditation and deliberation necessary to constitute murder in the first degree are not presumed from a killing with a deadly weapon. State v. Chavis, 231 N.C. 307, 56 S.E.2d 678 (1949); State v. Reams, 277 N.C. 391, 178 S.E.2d 65 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74 (1971), overruled on other grounds, State v. Worsley, 336 N.C. 268, 443 S.E.2d 68 (1994). See also, State v. Hawkins, 214 N.C. 326, 199 S.E. 284 (1938); State v. Lamm, 232 N.C. 402, 61 S.E.2d 188 (1950); State v. Brown, 249 N.C. 271, 106 S.E.2d 232 (1958).

Argument Not Grossly Improper. - In first-degree murder trial where prosecutor stated that deliberation meant a "cold-blooded murder" and that it did not include the case where a man comes home and "finds his wife shacked up there with somebody," such an example offered for the sake of comparison was not so grossly improper as to require the trial court to intervene ex mero motu. State v. Porter, 326 N.C. 489, 391 S.E.2d 144 (1990).

Instruction on Deliberation and Premeditation - Held Proper. - An instruction on deliberation that so long as the killing was the product of premeditation and deliberation it was murder in the first degree, notwithstanding that the execution thereof might have been done while the defendant was in a state of anger, passion, or emotional excitement, was a correct statement of law. State v. Potter, 295 N.C. 126, 244 S.E.2d 397 (1978).

Judge's instruction to the jury in a first-degree murder case that the jury, in determining premeditation and deliberation, may consider the "absence of provocation", did not express a court opinion that there was no evidence of provocation in the case. State v. Fowler, 285 N.C. 90, 203 S.E.2d 803 (1974), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3212, 49 L. Ed. 2d 1212 (1976).

Where evidence showed there was blood throughout the house, the victim was found against the base of the couch, and she had many slash wounds on her body, including two deep wounds capable of causing death, this evidence supported the state's theory that defendant slashed the victim as she attempted to escape from him, chased her into the living room where she fell to the floor, and then stabbed her to death; therefore, the trial court did not err in instructing the jury that premeditation and deliberation may be proved by "the infliction of lethal blows after the victim was felled." State v. Fullwood, 323 N.C. 371, 373 S.E.2d 518 (1988), sentence vacated and remanded for further consideration at, 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602 (1990), in light of State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978).

Preliminary Question of Sufficiency of Evidence to Be Determined by Court. - In a first-degree murder prosecution, the trial court must determine the preliminary question whether the evidence, in its light most favorable to the State, is sufficient to permit the jury to make a legitimate inference and finding that the defendant, after premeditation and deliberation, formed a fixed purpose to kill and thereafter accomplished the purpose. State v. Walters, 275 N.C. 615, 170 S.E.2d 484 (1969).

In order for the trial court to submit a charge of first-degree murder to the jury, there must have been substantial evidence presented from which a jury could determine that the defendant intentionally shot and killed the victim with malice, premeditation and deliberation. "Substantial evidence" is that amount of relevant evidence that a reasonable mind might accept as sufficient to support a conclusion. State v. Myers, 309 N.C. 78, 305 S.E.2d 506 (1983).

Attempt. - The offense of "attempted first degree felony murder" does not exist under North Carolina law, as this charge is a logical impossibility in that it would require the defendant to intend what is by definition an unintentional result. State v. Lea, 126 N.C. App. 440, 485 S.E.2d 874 (1997).

Evidence Held Sufficient. - Testimony of facts and circumstances which occurred after the commission of a homicide which tended to show a preconceived plan formed and carried out by the prisoner in detail, resulting in his actual killing of the deceased by two pistol shots, without excuse, with evidence that he thereafter stated he had done as he had intended, was competent upon the question of deliberation and premeditation, under the evidence in the case, to sustain a verdict of murder in the first degree. State v. Westmoreland, 181 N.C. 590, 107 S.E. 438 (1921).

Defendant's want of provocation, absence of excuse, lack of justification, and statement that he shot a person "to prove a point", all permitted, if not compelled, a legitimate inference of premeditation and deliberation. State v. Rich, 277 N.C. 333, 177 S.E.2d 422 (1970).

Where there was no evidence that the deceased had any weapon or at any time offered any threat to defendant, the want of provocation and absence of any excuse or justification, coupled with the other evidence, permitted a legitimate inference of premeditation and deliberation and was sufficient to be submitted to the jury on the issue of murder in the first degree. State v. Duncan, 282 N.C. 412, 193 S.E.2d 65 (1972).

The want of provocation, the absence of any excuse or justification for the shooting, the number of shots fired or attempted to be fired, and the fact that defendant ran immediately after the shooting, coupled with the other evidence, permitted a legitimate inference of premeditation and deliberation, and was sufficient to be submitted to the jury on the issue of murder in the first degree. State v. Sparks, 285 N.C. 631, 207 S.E.2d 712 (1974), death sentence vacated, 428 U.S. 905, 96 S. Ct. 3213, 49 L. Ed. 2d 1212 (1976).

State's evidence was sufficient to be submitted to the jury on the issue of defendant's guilt of conspiracy to commit murder, where there was evidence that defendant had discussed the murder with another and the means by which it might be accomplished, that defendant sent the coconspirator a picture of the victim for identification purposes, that defendant sent sums of money to the coconspirator, and that after an unsuccessful attempt was made upon the victim's life, defendant had stated to a friend, who had introduced her to the coconspirator, that the coconspirator knew somebody who would "finish the job." State v. Graham, 24 N.C. App. 591, 211 S.E.2d 805, cert. denied, 287 N.C. 262, 214 S.E.2d 434 (1975).

Where defendant was not harmed by the victim in any way and did not believe that he would have had any difficulty in defending himself against her, and the victim's death was an unnecessary and senseless killing; where the 55 stab wounds constituted grossly excessive force; and where force which would have been lethal had the victim not already been dead was applied when an automobile was driven over her felled body, the evidence was sufficient to take the issue of defendant's guilt of first-degree murder to the jury. State v. Bock, 288 N.C. 145, 217 S.E.2d 513 (1975), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3208, 49 L. Ed. 2d 1209 (1976).

In a prosecution for first-degree murder, the evidence was sufficient to withstand a motion for nonsuit where it tended to show that deceased died as a result of a gunshot wound inflicted by a shot fired from a trailer; defendant, a short time before the shooting, had test fired a 12 gauge shotgun; 12 gauge shotgun wadding was found in a straight line between the trailer and the bodies after the shooting; a freshly-fired 12 gauge shotgun was later found in defendant's house hidden between the quilts and mattress of the bed; and defendant was the only person in the trailer when the fatal shots were fired. State v. McCall, 289 N.C. 512, 223 S.E.2d 303, death sentence vacated, 429 U.S. 912, 97 S. Ct. 301, 50 L. Ed. 2d 278 (1976).

Evidence held sufficient to establish that victim was dead, and to allow the reasonable inference that she died by criminal agency and that the criminal agent was the defendant, despite the fact that her body was never found. State v. Head, 79 N.C. App. 1, 338 S.E.2d 908, cert. denied, 316 N.C. 736, 345 S.E.2d 395 (1986).

Evidence held sufficient for the jury to determine that the defendant intentionally killed robbery victim with premeditation and deliberation. State v. Welch, 316 N.C. 578, 342 S.E.2d 789 (1986).

For additional cases in which evidence of first degree murder was held sufficient, see State v. Faust, 254 N.C. 101, 118 S.E.2d 769, cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49 (1961); State v. Sanders, 276 N.C. 598, 174 S.E.2d 487 (1970), death sentence vacated, 403 U.S. 948, 91 S. Ct. 2290, 29 L. Ed. 2d 860 (1971); State v. Fields, 315 N.C. 191, 337 S.E.2d 518 (1985); State v. Brown, 315 N.C. 40, 337 S.E.2d 808 (1985); State v. Gladden, 315 N.C. 398, 340 S.E.2d 673 (1986), cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166 (1986); State v. Triplett, 316 N.C. 1, 340 S.E.2d 736 (1986); State v. Hunt, 323 N.C. 407, 373 S.E.2d 400 (1988), sentence vacated and remanded for further consideration at, 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602 (1990), in light of, 302 N.C. 401, 279 S.E.2d 356 (1981); State v. Ward, 286 N.C. 304, 210 S.E.2d 407 (1974).

Evidence held sufficient to support a finding of premeditation and deliberation in the murder of a victim who was brutally beaten to death. State v. Barts, 316 N.C. 666, 343 S.E.2d 828 (1986).

Evidence held sufficient to prove premeditation and deliberation so as to support a conviction for first degree murder caused by the gagging and resultant suffocation of the victim. State v. Prevette, 317 N.C. 148, 345 S.E.2d 159 (1986).

Evidence held sufficient to permit the jury to draw reasonable inferences that defendant acted with premeditation and deliberation when he shot and killed the deceased. State v. Saunders, 317 N.C. 308, 345 S.E.2d 212 (1986).

Evidence of defendant's conduct and threatening statements both before and after the killing was strong evidence of premeditation and deliberation, and was sufficient to permit the jury to find premeditation and deliberation beyond a reasonable doubt. State v. Joplin, 318 N.C. 126, 347 S.E.2d 421 (1986).

Evidence held sufficient to support convictions of first-degree murder and conspiracy to commit murder. State v. Lowery, 318 N.C. 54, 347 S.E.2d 729 (1986).

Evidence held sufficient to show provocation, premeditation and deliberation on the part of defendant, who inflicted multiple stab wounds on victim. State v. Fisher, 318 N.C. 512, 350 S.E.2d 334 (1986).

Evidence held to constitute substantial evidence of each element of armed robbery and first-degree murder committed with premeditation and deliberation, and of defendant as the perpetrator. State v. Williams, 319 N.C. 73, 352 S.E.2d 428 (1987).

Where the defendant, who barricaded himself, his sister, and her two children, one of whom was only eight-months-old, in a railroad car for three days, was repeatedly offered both food and liquids for himself and the children, but refused to accept them or to release the children, even though negotiators warned the defendant that the baby would dehydrate, there was sufficient evidence from which a reasonable mind might conclude that the defendant had the requisite specific intent to kill the infant who died of dehydration. State v. Evangelista, 319 N.C. 152, 353 S.E.2d 375 (1987).

A person is criminally responsible for a homicide if his act caused or directly contributed to the death of the victim. Where the testimony of the pathologist was that hammer blows to the head caused the victim's death, and the cause of death tentatively cited by the emergency room physician, namely, myocardial infarction, was, according to the physician's own testimony, not medically conclusive, even if the jury had perceived that testimony as contradicting the findings of the forensic pathologist, such contradictions and discrepancies were for the jury to resolve and did not warrant dismissal. State v. Quesinberry, 319 N.C. 228, 354 S.E.2d 446 (1987), aff'd, 325 N.C. 125, 381 S.E.2d 681 (1989), sentence vacated and remanded for consideration at, 494 U.S. 1022, 110 S. Ct. 1465, 108 L. Ed. 2d 603 (1990).

Evidence held sufficient to permit submission of issue of premeditation and deliberation to the jury. State v. Stocks, 319 N.C. 437, 355 S.E.2d 492 (1987).

Trial court did not err in denying defendant's motion to dismiss first degree murder charge at the close of all the evidence, where physician testified that the victim died of pneumonia, but that there was a direct relationship between the gunshot wound and the pneumonia. State v. Penley, 318 N.C. 30, 347 S.E.2d 783 (1986).

Where victims, whose bodies were found in isolated areas of north Durham County, had been shot multiple times at close range, and both had close or contact wounds to the back, neck, face, and head behind the left ear, and there was no evidence of any provocation by either victim, the brutal method of these killings provided substantial evidence that the killer premeditated and deliberated. State v. Robbins, 319 N.C. 465, 356 S.E.2d 279, cert. denied, 484 U.S. 918, 108 S. Ct. 269, 98 L. Ed. 2d 226 (1987).

Evidence held sufficient to support a finding of premeditation and deliberation, as well as malice, by defendant in death of her 30 day old infant. State v. Perdue, 320 N.C. 51, 357 S.E.2d 345 (1987).

Evidence as to premeditation and deliberation held sufficient, where such evidence indicated that three victims in two different rooms suffered multiple wounds which were inflicted from a .22-caliber semi-automatic rifle. Defendant's contention that the ability to fire so rapidly negated the inference of premeditation based solely upon the number of wounds, and did not support the inference that the victims had already been felled before the lethal wounds were inflicted, was without merit. State v. Austin, 320 N.C. 276, 357 S.E.2d 641, cert. denied, 484 U.S. 916, 108 S. Ct. 267, 98 L. Ed. 2d 224 (1987).

There was sufficient evidence from which the jury could properly have inferred premeditation and deliberation, where a pathologist testified that the killing was accomplished by a person stabbing the victim through the neck, partially removing the knife, and then plunging it home again. State v. Zuniga, 320 N.C. 233, 357 S.E.2d 898 (1987), cert. denied, 484 U.S. 959, 108 S. Ct. 359, 98 L. Ed. 2d 384 (1987).

Evidence held sufficient to support defendant's conviction for murder in the first degree based upon premeditation and deliberation. State v. Rasor, 319 N.C. 577, 356 S.E.2d 328 (1987); State v. Hager, 320 N.C. 77, 357 S.E.2d 615 (1987).

Evidence that defendant and deceased were the only persons in the home, that deceased was shot in the back from a distance of approximately two feet or point blank through some sheets and that the gun had to be cocked before it would fire, requiring 13 pounds of pressure, was sufficient for the jury to find defendant guilty of first degree murder. State v. Childress, 321 N.C. 226, 362 S.E.2d 263 (1987).

Evidence held sufficient to convict defendant of first-degree murder. State v. Nichols, 321 N.C. 616, 365 S.E.2d 561 (1988).

Evidence held sufficient to show that defendant acted with premeditation and deliberation when he shot a state trooper. State v. Bray, 321 N.C. 663, 365 S.E.2d 571 (1988).

Evidence held sufficient to convict defendant of first-degree murder on theories of both premeditation and deliberation and felony-murder. State v. James, 321 N.C. 676, 365 S.E.2d 579 (1988).

The cumulative effect of actions and statements by defendant was more than sufficient evidence of a deliberate and premeditated killing so as to support a judgment of first degree murder. State v. Battle, 322 N.C. 69, 366 S.E.2d 454, cert. denied, 487 U.S. 1220, 108 S. Ct. 2876, 101 L. Ed. 2d 911 (1988).

Evidence held sufficient to show that defendant choked victim to death with premeditation and deliberation. State v. Wilson, 322 N.C. 117, 367 S.E.2d 589 (1988).

Where the evidence tended to show that defendant calmly volunteered his services as an assassin to his friend shortly after that friend's dispute with the victim, defendant then worked out the details of the crime with his friend's help; the two planned a ruse to gain access to the victim and discussed the need for a third party's assistance, and defendant then carried out the plan, announcing his deadly intention to the victim before shooting him with a .22-caliber pistol, defendant's conduct and declarations, coupled with the lack of legal provocation on the part of the victim, raised inferences of malice, premeditation, and deliberation sufficient to survive a motion to dismiss. State v. Cummings, 323 N.C. 181, 372 S.E.2d 541 (1988), sentence vacated and remanded for further consideration at, 494 U.S. 1021, 110 S. Ct. 1464, 108 L. Ed. 2d 602 (1990), in light of, 292 N.C. 643, 235 S.E.2d 63 (1977).

Although doctors testified that in their opinion the defendant did not know right from wrong in regard to the acts at issue in defendant's trial for first-degree murder, a police officer testified the defendant had a "very normal" demeanor and that she appeared to be oriented to time and was responsive to questions; the burden was on the defendant to prove insanity, the jury did not have to believe the expert witnesses, and the evidence supported the guilty verdicts; therefore, it was not error to refuse to set them aside. State v. Shytle, 323 N.C. 684, 374 S.E.2d 573 (1989).

Where circumstantial evidence allowed a reasonable inference that defendant targeted a vulnerable victim, felled her with blows, assaulted her sexually, and manually strangled her until she died, the trial court did not err in denying defendant's motion to dismiss charge of first-degree murder against defendant. State v. Davis, 325 N.C. 607, 386 S.E.2d 418 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2587, 110 L. Ed. 2d 268 (1990).

Evidence that defendant entered victim's yard, placed a bucket under his window, stood on the bucket, aimed a .22 rifle through the window at victim, and fired the rifle at victim, and that subsequently he did not try to aid victim but covered him so that he could not be seen and left him to die, was substantial evidence from which the jury could find beyond a reasonable doubt that defendant intended to kill victim and that he did so with premeditation and deliberation, despite evidence of statements made by defendant before the shooting that they might have to shoot victim in the shoulder to keep him "under control." State v. Freeman, 326 N.C. 40, 387 S.E.2d 158 (1990).

Evidence tending to show that the defendant had control of weapon before she discharged it, killing husband; that the victim feared the defendant due to her prior actions toward him; and that the defendant gave inconsistent versions of "accident" which were inconsistent with the physical evidence; along with evidence of motive, and evidence that defendant's first husband had died in a manner strikingly similar to that in which her second husband died, was sufficient to support a finding that the defendant intentionally killed husband with malice after premeditation and deliberation. State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (1991).

Evidence tending to show that defendant had become romantically involved with victim's girlfriend and that he shot victim despite absence of any immediate threat to his person justified submission of issue of first degree murder to jury. State v. Williams, 100 N.C. App. 567, 397 S.E.2d 364 (1990), cert. dismissed, 328 N.C. 576, 403 S.E.2d 520 (1991).

There was sufficient evidence of murder in the first degree on the basis of premeditation and deliberation where the State's evidence tended to show that the victim was shot while she was lying face down on the floor; the wound was a "hard contact" wound; the killer placed the gun directly against the victim's skull before pulling the trigger; there was no evidence of provocation by the victim; the store was orderly, and the victim was a former bank employee who had been trained to submit without resistance to an armed robber's demands. The evidence presented, viewed in the light most favorable to the State, supports the inference that the victim did not provoke defendant and that defendant killed the victim after she had been felled and rendered helpless. State v. Small, 328 N.C. 175, 400 S.E.2d 413 (1991).

Evidence which tended to show that murder victim, a store clerk, was shot while lying face down on the floor, his legs wrapped with an electric cord, and died of a gunshot wound to the middle of his back, a contact wound which went directly to and through his heart, was sufficient to submit a charge of first-degree murder to the jury on a theory of malice, premeditation and deliberation. State v. McPhail, 329 N.C. 636, 406 S.E.2d 591 (1991).

Evidence held to support defendant's conviction of first-degree murder of defendant's 16-year-old mentally handicapped daughter and to support the conclusion that defendant's action of leaving car on train track was proximate cause of daughter's death, which occurred when car was struck by train. State v. Brewer, 328 N.C. 515, 402 S.E.2d 380 (1991).

Evidence held sufficient to support trial judge's instructions on first-degree murder with premeditation and deliberation in case involving homicide of six-year-old forced to drink large amounts of water. State v. Crawford, 329 N.C. 466, 406 S.E.2d 579 (1991).

Even assuming that defendant had not formed an intent to kill at the time the assault began, no rational juror could have reasonably found that defendant, having beaten the victim into submission and having inserted his hand past his wrist into the victim's vagina at least twice, pulling out the victim's organs, did not act with premeditation and deliberation when he later dragged her 120 feet into the woods leaving her helpless and bleeding to death; the evidence showing that the offense was committed over such a long period of time, with so many conscious decisions by the defendant, clearly supported the trial court's finding that the defendant possessed the requisite premeditation and deliberation. State v. Thomas, 332 N.C. 544, 423 S.E.2d 75 (1992).

The evidence was substantial as to each element of the offense of first-degree murder and the defendant being the perpetrator. State v. Peterson, 337 N.C. 384, 446 S.E.2d 43 (1994).

The fact that defendant went to great lengths to conceal murder, including disposing of the body and destroying or hiding evidence such as the pipe, the sheets, and the mattress and his uncaring attitude about the victim, evidenced by killing her and then dumping her nude body by the roadside, could all be considered by the jury in finding premeditation and deliberation. State v. Weathers, 339 N.C. 441, 451 S.E.2d 266 (1994).

Evidence was sufficient to support a conclusion that defendant acted with malice, premeditation and deliberation where defendant and the victim fought earlier in the evening, defendant followed the victim to a convenience store parking lot, defendant shot the victim after the victim had turned his back to defendant and was walking away, and defendant knew the victim was unarmed. State v. Ross, 338 N.C. 280, 449 S.E.2d 556 (1994).

Evidence held sufficient to prove that defendant committed premeditated and deliberate murder. State v. Leach, 340 N.C. 236, 456 S.E.2d 785 (1995).

The time interval between defendant's departure from the confrontation and the shooting was clearly sufficient to allow him to think out the act and form a fixed design to kill in a cool state of blood, and his statements in the wake of the shooting indicated that he in fact did so; the evidence was sufficient to permit a reasonable inference that defendant premeditated and deliberated the killing. State v. Holt, 342 N.C. 395, 464 S.E.2d 672 (1995).

Where there was substantial evidence to support a finding that the offense charged had been committed and that the defendant committed it, the case was for the jury and the motion to dismiss was properly denied. State v. Workman, 344 N.C. 482, 476 S.E.2d 301 (1996).

Substantial evidence, including the contents of victim's stomach, the motive, the weapon, the fact that defendant looked into who owned victim's car, which had been parked outside his former girl friend's house, the fact that he had his car painted and cleaned after victim disappeared, mtDNA sequencing, and other circumstances, supported the conviction of defendant under this section. State v. Underwood, 134 N.C. App. 533, 518 S.E.2d 231 (1999), cert. dismissed, 352 N.C. 669, 535 S.E.2d 33 (2000).

The evidence was sufficient to point to defendant as the killer and withstand his motions to dismiss, where it showed that victim was stabbed 11 times with knives from the kitchen of the residence; there were no signs of forced entry, notwithstanding defendant's statement to the contrary about hearing footsteps in the residence; money and other valuables were found on the kitchen table; victim wanted defendant to leave the residence and no longer wanted to be married; and defendant on numerous occasions inquired as to the particulars of how an inmate murdered his girlfriend. State v. Aldridge, 139 N.C. App. 706, 534 S.E.2d 629 (2000), cert. denied, 353 N.C. 269, 546 S.E.2d 114 (2000).

Evidence that defendant armed himself with a loaded assault rifle as part of plan to rob the victim, and that there was only a very brief time between the time defendant entered the apartment and the time the victim was shot, was sufficient to allow the jury to conclude that defendant intentionally killed the victim with premeditation and deliberation and support conviction for first-degree murder. State v. Allen, 162 N.C. App. 587, 592 S.E.2d 31 (2004).

Evidence that two defendants told another person to stop a car that was transporting them, that the driver saw both of them walk towards a car he had just passed, that the driver heard gunshots, that both defendants had a handgun when they returned to the car, and that casings found near a person who was shot to death were linked to the handguns defendants had in their possession, was sufficient to sustain defendants' conviction for first-degree murder; the appellate court held that the trial court did not commit error when it refused to give the jury an instruction on second-degree murder as a lesser included offense and that the State properly charged defendants using a short form indictment. State v. Pope, 163 N.C. App. 486, 593 S.E.2d 813 (2004).

Evidence was sufficient to support the jury's verdict convicting defendant of first-degree murder, and thus the trial court properly denied defendant's motions to dismiss and to set aside the verdict; (1) defendant admitted that he shot the victim in the head and told the police that the victim had been blackmailing him over a tape of defendant's wife, (2) victim's body was found buried on defendant's property, and (3) defendant denied any knowledge of what happened to the victim until after the body was discovered on his property and then changed his story to reveal the confrontation between the victim and him. State v. Gladden, 168 N.C. App. 548, 608 S.E.2d 93 (2005), appeal dismissed, cert. denied, - N.C. - , 614 S.E.2d 312 (2005).

Evidence was sufficient to support an attempted first-degree murder conviction because the evidence established that the prisoner broke into the victims' home, brandished a gun, threatened to kill both victims, and then shot both victims. Fredrick v. Beck, - F. Supp. 2d - (W.D.N.C. Oct. 28, 2005).

State introduced ample and sufficient evidence to allow the jury to make reasonable inferences of defendant's guilt of first-degree murder by aiding and abetting, including testimony and exhibits to prove defendant's affair, ongoing problems in defendant's marriage, defendant's financial status and the insurance payout, and defendant's suspicious behavior and flight following the murder. State v. Theer, 181 N.C. App. 349, 639 S.E.2d 655 (2007), cert. denied, - U.S. - , 128 S. Ct. 2473, 171 L. Ed. 2d 769 (2008).

Evidence supported defendant's conviction for first-degree murder as there was sufficient evidence to support the elements of premeditation and deliberation in the form of defendant's statements and conduct before and after the killing, ill will between the parties, and the nature and number of the victim's wounds. The victim's back was turned when defendant fired defendant's weapon, giving defendant adequate time to weigh the consequences of the act. State v. Bass, 190 N.C. App. 339, 660 S.E.2d 123 (2008), appeal dismissed, cert. denied, 362 N.C. 683, 670 S.E.2d 566 (2008).

Evidence was sufficient to show that defendant was a person providing care or supervision to the child victim as required by G.S. 14-318.4(a), such that defendant could have been guilty of the underlying felony of child abuse to convict him of first-degree murder committed in the perpetration of a felony, where defendant lived in the child's home for months, at least during the weekdays, defendant's encounters with the child were daily and, although defendant may not have had plenary parental authority, evidence that he, inter alia, helped with potty training, cooked meals, and supervised the child while playing outside was sufficient for a jury to find the child depended on defendant for parental-type care. State v. Chambers, - N.C. App. - , - S.E.2d - (July 20, 2021).

The evidence was sufficient to support a finding of premeditation and deliberation where the evidence showed that after a confrontation between defendant and victim, defendant went to his trailer and got his gun, told his girlfriend that victim had beaten him and that if he beat him anymore he would shoot him and after defendant left, his girlfriend called store where the victim was and said that defendant had a gun and had said he was going to shoot victim. As victim approached a trailer, defendant backed into an adjacent driveway and motioned for victim to come over, and when victim, who was unarmed, got within three to five feet of defendant's truck, defendant stuck his gun out of the window and shot him. Defendant did not attempt to help victim; rather, he sat in his truck and looked at him. He told an emergency medical technician that the victim would not breathe because he had taken a gun and blown his brains out and there was testimony that to fire the gun, it was necessary to load it, close it, and cock it before pulling the trigger. There was evidence that defendant reloaded the gun after shooting the victim. State v. Vaughn, 324 N.C. 301, 377 S.E.2d 738 (1989).

Denial of defendant's motion to dismiss was upheld after the appellate court determined that there was sufficient evidence that defendant was the perpetrator of the crime and that he acted with premeditation and deliberation; among other things, there was fiber evidence and evidence connected with defendant's boat linking him to the crime, and evidence of an elaborate process of concealing the body to support premeditation and deliberation. State v. Dawkins, 162 N.C. App. 231, 590 S.E.2d 324 (2004), cert. denied, 358 N.C. 237, - S.E.2d - (2004).

The evidence was sufficient to permit a rational juror to find that defendant killed the officers with premeditation and deliberation where, during defendant's struggle with officers, his intent changed from a mere attempt to flee to the killing of the officers to further his escape. State v. Harden, 344 N.C. 542, 476 S.E.2d 658 (1996).

Evidence Held Sufficient to Raise Inference of Premeditation and Deliberation. - Where the evidence, taken in the light most favorable to the State, showed that no knives or other weapons were found at the scene of the crime and no drawers were open; the victim was shot three times, once in the back; prior to the day of the shooting, defendant threatened, "If I ever come here and see another man in this house, I'll kill him"; and after the shooting, defendant told lieutenant that he had shot two people but did not at that time claim that he had done so in self-defense; this evidence raised the legitimate inference that defendant killed with premeditation and deliberation and not in self-defense, and the trial court did not err in submitting the first-degree murder charge based on premeditation and deliberation. State v. Carter, 335 N.C. 422, 440 S.E.2d 268 (1994).

Finding of Malice, Premeditation and Deliberation Precludes Voluntary Manslaughter - The jury's finding that defendant was guilty of first degree murder on the basis of malice, premeditation and deliberation rendered harmless the trial court's failure to submit the lesser included offense of voluntary manslaughter. State v. Jarrett, 137 N.C. App. 256, 527 S.E.2d 693 (2000).

Evidence Did Not Show That Defendant Acted in Heat of Passion - Although attempted voluntary manslaughter was a lesser-included offense of attempted first-degree murder, the trial court properly refused to instruct the jury that defendant could be found guilty of attempted voluntary manslaughter because the evidence did not show that defendant acted in the heat of passion. State v. Rainey, 154 N.C. App. 282, 574 S.E.2d 25 (2002), cert. denied, 356 N.C. 621, 575 S.E.2d 520 (2002).

Evidence held sufficient to support a charge of conspiracy to commit murder. State v. Larrimore, 340 N.C. 119, 456 S.E.2d 789 (1995).

The evidence of repeated coordinated assaults and the defendant's agreement to "go on a killing spree" clearly refuted his argument that the State did not offer sufficient evidence of one or more conspiracies to commit first-degree murder. State v. Choppy, 141 N.C. App. 32, 539 S.E.2d 44 (2000).

Evidence held sufficient to convict the defendants of first degree murder as aiders and abetters. State v. Vanhoy, 343 N.C. 476, 471 S.E.2d 404 (1996), overruled on other grounds, State v. Gaines, 345 N.C. 647, 483 S.E.2d 396 (1997).

Evidence Held Insufficient. - Evidence which established a brutal murder, showed that defendant had the opportunity to commit it and raised suspicion in imaginative minds, nevertheless did not suffice to sustain a conviction. State v. Jones, 280 N.C. 60, 184 S.E.2d 862 (1971).

Where the evidence showed that defendant wanted his wife dead, that he actively sought her death, and that he harbored great hostility toward her without more, was not enough to permit a jury to find that he killed her. While such evidence might have supported a reasonable inference that defendant was responsible for his wife's death and that he procured someone to murder her, these facts alone would not make defendant guilty of murder. State v. Furr, 292 N.C. 711, 235 S.E.2d 193, cert. denied, 434 U.S. 924, 98 S. Ct. 402, 54 L. Ed. 2d 281 (1977).

Death from Pneumonia Resulting from Wound. - Trial court did not err in denying defendant's motion to dismiss first degree murder charge at the close of all the evidence, where physician testified that the victim died of pneumonia, but that there was a direct relationship between the gunshot wound and the pneumonia. State v. Penley, 318 N.C. 30, 347 S.E.2d 783 (1986).

Demonstrative Evidence Was Relevent to Show Premeditation. - Where defendant, who was convicted of strangling his pregnant high school girlfriend, testified that his action was impulsive and that he tore off the "skirt" part of the apron after the strangulation, it was proper to allow a detective, using a mannequin at trial, to demonstrate how the apron was tied around the victim's neck as the demonstration was relevant as to whether defendant acted with premeditation and deliberation and the demonstration was not excessively inflammatory. State v. Fowler, 159 N.C. App. 504, 583 S.E.2d 637 (2003).

III. MURDER BY MEANS STATED IN SECTION.

.

Premeditation and Intent to Kill Are Not Elements of Murder by Means Stated in Section. - Premeditation and deliberation is not an element of the crime of first-degree murder perpetrated by means of poison, lying in wait, imprisonment, starving or torture. Likewise, a specific intent to kill is not an element of first-degree murder when the homicide is perpetrated by means of poison, lying in wait, imprisonment, starving or torture. State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986).

When a homicide is perpetrated by means of poison, lying in wait, imprisonment, starving or torture, the presence or absence of premeditation, deliberation and specific intent to kill is irrelevant. State v. Evangelista, 319 N.C. 152, 353 S.E.2d 375 (1987); State v. Leroux, 326 N.C. 368, 390 S.E.2d 314 (1990), cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155 (1990).

Neither premeditation and deliberation nor intent to kill are elements of murder in the first degree when the homicide is perpetrated by means of torture. State v. Phillips, 328 N.C. 1, 399 S.E.2d 293, cert. denied, 501 U.S. 1208, 111 S. Ct. 2804, 115 L. Ed. 2d 977 (1991).

Premeditation and deliberation are not elements of the crime of first-degree murder perpetrated by means of lying in wait, nor is a specific intent to kill. State v. Baldwin, 330 N.C. 446, 412 S.E.2d 31 (1992).

In light of defendant's conviction for murder based on lying in wait, the trial court erred in refusing to arrest judgment on his conviction for secret assault. The legislature did not intend to punish a defendant both for a secret assault and for a murder when the assault is the very act that underlies the conviction for first-degree murder by lying in wait. State v. Joyner, 329 N.C. 211, 404 S.E.2d 653 (1991).

A murder perpetrated by means of poison is murder in the first degree. State v. Hendrick, 232 N.C. 447, 61 S.E.2d 349 (1950).

Any murder committed by means of poison is automatically first-degree murder. State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986).

When a murder is committed by means of poison, premeditation and deliberation are not elements of the crime of first-degree murder and premeditation and deliberation are hence irrelevant. State v. Moore, 335 N.C. 567, 440 S.E.2d 797, cert. denied, 513 U.S. 898, 115 S. Ct. 253, 130 L. Ed. 2d 174 (1994).

A separate showing of malice is not necessary for the charges of first-degree murder by means of poison and attempted first-degree murder by poison. State v. Smith, 351 N.C. 251, 524 S.E.2d 28, cert. denied, 531 U.S. 862, 121 S. Ct. 151, 148 L. Ed. 2d 100 (2000).

Intent to Kill by Poison Need Not Be Proved. - When the State proceeds upon a theory of first-degree murder perpetrated by means of poison, the State is not required to come forward with evidence tending to show that the defendant possessed the intent to kill the victim, and the trial judge should not instruct the jury that it is required to find such an intent as a prerequisite for returning a conviction for first-degree murder. State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986).

When a murder is committed by means of poison, the murder is first degree, even if all the evidence presented tends to show only an intent to make the victim ill. State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986).

Evidence of Other Poisonings. - In a capital poisoning case, there was no error in admission of evidence tending to show that defendant was responsible for the poisoning deaths of four other individuals, not including the murder for which she was convicted, based upon long-established state law permitting use of "other crime" evidence when probative of a defendant's knowledge of a relevant set of circumstances, specific intent to commit the crime, motive for the crime, or plan or design to commit the crime. Barfield v. Harris, 540 F. Supp. 451 (E.D.N.C. 1982), aff'd, 719 F.2d 58 (4th Cir. 1983).

Burden on State in Prosecution for Murder by Poison. - In a prosecution for murder by means of poison, the burden is on the State to prove beyond a reasonable doubt that the deceased died from poison and that defendant administered the poison with criminal intent. State v. Hendrick, 232 N.C. 447, 61 S.E.2d 349 (1950).

Evidence of Murder by Poison Held Sufficient. - In a prosecution for first-degree murder by poison, the evidence was sufficient to withstand motions for directed verdict and for judgment of nonsuit where defendant purchased rat poison with intent to kill deceased, and pursuant to a preconceived plan to do so, defendant poured it into tea prepared specially for deceased's consumption and deceased drank the tea and almost immediately became ill and died. State v. Hunt, 289 N.C. 403, 222 S.E.2d 234, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976).

Evidence held sufficient to take first-degree murder by poison case to jury. See State v. Detter, 298 N.C. 604, 260 S.E.2d 567 (1979).

Purposes of Secret Assault and Murder by Lying in Wait Contrasted. - The purpose of the secret assault statute is to provide for the protection of society in cases of assault from ambush which do not result in the death of the victim, while the purpose of the murder by lying in wait statute is to provide for such protection in cases of assault from ambush which do result in the death of the victim. State v. Joyner, 329 N.C. 211, 404 S.E.2d 653 (1991).

Secret Assault Underlying Conviction for Murder by Lying in Wait Not Punishable. - To provide for additional punishment for the assault underlying a conviction for murder by lying in wait would serve little purpose other than to augment paperwork, trial time, and the potential for error in an already overburdened court system. The legislature, in enacting the secret assault and murder by lying in wait statutes, did not intend this result, and courts will, and the court accordingly arrest a judgment entered upon the secret assault conviction for a defendant convicted of murder by lying in wait. State v. Joyner, 329 N.C. 211, 404 S.E.2d 653 (1991).

Murder perpetrated by lying in wait refers to a killing where the assassin has stationed himself or is lying in ambush for a private attack upon his victim. The assassin need not be concealed, nor need the victim be unaware of his presence. State v. Leroux, 326 N.C. 368, 390 S.E.2d 314, cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155 (1990).

If one places himself in a position to make a private attack upon his victim and assails him at a time when the victim does not know of the assassin's presence or, if he does know, is not aware of his purpose to kill him, the killing would constitute a murder perpetrated by lying in wait. State v. Leroux, 326 N.C. 368, 390 S.E.2d 314, cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155 (1990).

Any murder committed by means of lying in wait is automatically first-degree murder. State v. Brown, 320 N.C. 179, 358 S.E.2d 1, cert. denied, 484 U.S. 970, 108 S. Ct. 467, 98 L. Ed. 2d 406 (1987).

Murder from Ambush Is Murder by Lying in Wait. - When this section speaks of murder perpetrated by lying in wait, it refers to a killing where the assassin has stationed himself or is lying in ambush for a private attack upon his victim. An assailant who watches and waits in ambush for his victim is most certainly lying in wait. State v. Allison, 298 N.C. 135, 257 S.E.2d 417 (1979).

And Constitutes First-Degree Murder. - Defendants who lay in wait and killed deceased from ambush are guilty of murder in the first degree. State v. Wiggins, 171 N.C. 813, 89 S.E. 58 (1916). See State v. Satterfield, 207 N.C. 118, 176 S.E. 466 (1934); State v. Mozingo, 207 N.C. 247, 176 S.E. 582 (1934).

Assailant Need Not Be Concealed to Lie in Wait. - It is not necessary that an assailant be actually concealed in order to lie in wait. If one places himself in a position to make a private attack upon his victim and assails him at a time when the victim does not know of the assassin's presence or, if he does know, is not aware of his purpose to kill him, the killing would constitute a murder perpetrated by lying in wait. State v. Allison, 298 N.C. 135, 257 S.E.2d 417 (1979).

Evidence of Murder by Lying in Wait. - Evidence that defendant brought a gun to a residence where he had previously seen victim; that after expressing animosity towards victim, defendant entered the residence without the gun, checking as to victim's presence; that defendant did not reveal the gun or indicate his plan of attack to the victim in any way; that defendant then went out onto the porch, positioned himself behind a clothes dryer and waited for victim to come outside; and that when victim entered the porch area, defendant did not warn him of his presence, but instead waited until he exited the porch area before shooting him in the back, clearly supported the court's action in submitting murder perpetrated by lying in wait to the jury. State v. Battle, 322 N.C. 69, 366 S.E.2d 454, cert. denied, 487 U.S. 1220, 108 S. Ct. 2876, 101 L. Ed. 2d 911 (1988).

Where defendant, by his own admission, was sneaking around dark golf course and, with a suddenness which deprived police officer victim of all opportunity to defend himself, fired upon and killed the officer, he was guilty of first degree murder by lying in wait, and it was not necessary for the State to show that defendant had an announced purpose or intent to kill the officer when he shot him under those circumstances. State v. Leroux, 326 N.C. 368, 390 S.E.2d 314, cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155 (1990).

Where the State's evidence tended to show that the defendant hid in the victim's closet and waited for her to return to her room before jumping out of the closet and assaulting her with a hammer, leading to her death, the evidence clearly supported submission to the jury of murder by lying in wait. State v. Camacho, 337 N.C. 224, 446 S.E.2d 8 (1994).

Period of "Waiting" May Be Momentary. - The State need not prove that the killer stationed himself and waited at the site of the killing for some period of time before it may proceed on a theory of lying in wait. Even a moment's deliberate pause before killing one unaware of the impending assault and consequently without opportunity to defend himself satisfies the definition of murder perpetrated by lying in wait. State v. Leroux, 326 N.C. 368, 390 S.E.2d 314, cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155 (1990).

Evidence of Intoxication Irrelevant. - As a specific intent to kill is not an element of the crime of first-degree murder by lying in wait, evidence of intoxication is irrelevant as a defense. State v. Leroux, 326 N.C. 368, 390 S.E.2d 314, cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155 (1990).

Malice Not Element for Murder by Starving. - Malice is not a separate element of murder by starving; thus, the trial court did not err by not making a finding or conclusion as to malice. State v. Cheeks, - N.C. App. - , 833 S.E.2d 660 (2019).

Starvation. - Deprivation of life-sustaining liquids amounts to starvation under this section. State v. Evangelista, 319 N.C. 152, 353 S.E.2d 375 (1987).

Murder by Starvation. - Murder by starving requires the willful deprivation of sufficient food or hydration to sustain life. The deprivation need not be absolute and continuous for a particular time period. State v. Cheeks, - N.C. App. - , 833 S.E.2d 660 (2019).

There was sufficient evidence to support the trial court's conclusion that the defendant intentionally starved his four-year-old stepson and that starvation was the proximate cause of his death, and thus defendant's conviction of first degree murder by starvation was affirmed; defendant did not challenge the sufficiency of the evidence of the specific findings of fact, which findings were conclusive, the fact that the child was wasting away would have been obvious to defendant, the child's primary caretaker, yet the defendant took no action. State v. Cheeks, - N.C. App. - , 833 S.E.2d 660 (2019).

Based upon G.S. 14-17 and case law, the court can find no support for the necessity of a separate element of a legal duty to feed for murder by starving; in this case, as a four-year old child with developmental delays, the victim depended entirely upon the defendant and the victim's mother for all of the victim's needs, including food and water, and both were fully aware of the victim's dependency upon them, such that no further legal duty was necessary. State v. Cheeks, - N.C. App. - , 833 S.E.2d 660 (2019).

Evidence that defendant, for the purpose of punishment, forced six-year-old to drink large quantities of water, causing his death, constituted adequate evidence of torture. State v. Crawford, 329 N.C. 466, 406 S.E.2d 579 (1991).

Murder by Torture Is Murder in First Degree. - When a homicide is perpetrated by means of torture, premeditation and deliberation are presumed and defendant is guilty of murder in the first degree. State v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971).

First-degree murder by torture requires the State to prove that the accused intentionally tortured the victim and that such torture was a proximate cause of the victim's death. State v. Pierce, 346 N.C. 471, 488 S.E.2d 576 (1997).

Murder by Torture Shown. - The evidence supported the submission of first-degree murder by torture where for four weeks defendant punished his 21/2 year old niece by shaking her; by beating her with fists, a belt, a metal tray, a broken antenna, and a pair of tennis shoes; by making her wear soiled pants on her head; and by smacking and slapping her. Accordingly, the trial court properly denied defendants motion to dismiss the charge of first-degree murder on the basis of torture. State v. Pierce, 346 N.C. 471, 488 S.E.2d 576 (1997).

Murder by torture is analogous to felony murder in that malice may be implied by the very act of torturing the victim. The commission of torture implies the requisite malice, and a separate showing of malice is not necessary. State v. Crawford, 329 N.C. 466, 406 S.E.2d 579 (1991).

Jury's finding of course of conduct and the intentional infliction of grievous pain and cruel suffering resulting in death satisfied statutory and constitutional requirements regarding torture. State v. Crawford, 329 N.C. 466, 406 S.E.2d 579 (1991).

IV. MURDER IN PERPETRATION OF A FELONY.

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Purpose. - The felony murder rule was promulgated to deter even accidental killings from occurring during the commission of or attempted commission of a dangerous felony. State v. Richardson, 341 N.C. 658, 462 S.E.2d 492 (1995).

Elements. - The elements necessary to prove felony murder are that the killing took place while the accused was perpetrating or attempting to perpetrate one of the enumerated felonies. State v. Richardson, 341 N.C. 658, 462 S.E.2d 492 (1995).

North Carolina does not recognize an offense of second-degree felony murder. State v. Hunt, 91 N.C. App. 574, 372 S.E.2d 744 (1988), sentence vacated and remanded for further consideration at, 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602 (1990), in light of State v. Bullard, 79 N.C. App. 440, 339 S.E.2d 664 (1986).

The offense of "attempted first degree felony murder" does not exist under North Carolina law. State v. Lea, 126 N.C. App. 440, 485 S.E.2d 874 (1997).

A charge of "attempted felony murder" is a logical impossibility in that it requires the defendant to intend what is by definition an unintentional result; accordingly, the offense of "attempted felony murder" does not exist in North Carolina. State v. Lea, 126 N.C. App. 440, 485 S.E.2d 874 (1997).

The felony-murder rule does not unconstitutionally relieve the State of the burden of proving malice, since malice is not an element of the crime. Further, no burden is placed upon a defendant to prove or disprove any of the elements of the crime. State v. Womble, 292 N.C. 455, 233 S.E.2d 534 (1977).

State Is Not Relieved from Proving Mens Rea. - The felony murder rule, as set out in this section, does not establish a presumption of premeditation and deliberation are not elements of felony murder; the State is not relieved from proving criminal mens rea. State v. Thomas, 332 N.C. 544, 423 S.E.2d 75 (1992).

Term "Felony Murder" Disapproved. - Since "felony murder" is not a statutory term, its use in an issue submitted to the jury is ill-advised and its usage is expressly disapproved. State v. Foster, 293 N.C. 674, 239 S.E.2d 449 (1977).

Premeditation and deliberation are not elements of the crime of felony-murder. State v. Swift, 290 N.C. 383, 226 S.E.2d 652 (1976); State v. Wall, 304 N.C. 609, 286 S.E.2d 68 (1982).

Premeditation and Deliberation Need Not Be Proved. - A murder committed in the perpetration or attempt to perpetrate a felony is murder in the first degree, and in such instance the State is not put to proof of premeditation and deliberation. State v. Chavis, 231 N.C. 307, 56 S.E.2d 678 (1949); State v. Fox, 277 N.C. 1, 175 S.E.2d 561 (1970); State v. Doss, 279 N.C. 413, 183 S.E.2d 671 (1971), death sentence vacated, 408 U.S. 939, 92 S. Ct. 2875, 33 L. Ed. 2d 762 (1972); State v. Hairston, 280 N.C. 220, 185 S.E.2d 633, cert. denied, 409 U.S. 888, 93 S. Ct. 194, 34 L. Ed. 2d 145 (1972); State v. Thompson, 280 N.C. 202, 185 S.E.2d 666 (1972); State v. Jenerett, 281 N.C. 81, 187 S.E.2d 735 (1972); State v. Williams, 284 N.C. 67, 199 S.E.2d 409 (1973); State v. Bush, 289 N.C. 159, 221 S.E.2d 333, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976); State v. Jones, 290 N.C. 292, 225 S.E.2d 549 (1976); State v. Peplinski, 290 N.C. 236, 225 S.E.2d 568, cert. denied, 429 U.S. 932, 97 S. Ct. 339, 50 L. Ed. 2d 301 (1976); Chance v. Garrison, 537 F.2d 1212 (4th Cir. 1976); State v. Warren, 292 N.C. 235, 232 S.E.2d 419 (1977); State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788 (1981); State v. Irwin, 304 N.C. 93, 282 S.E.2d 439 (1981); State v. Wall, 304 N.C. 609, 286 S.E.2d 68 (1982).

Death Need Not Be Intended. - A homicide is murder in the first degree if it results from the commission or attempted commission of one of the specified felonies or of any other felony inherently dangerous to life, without regard to whether the death be intended or not. State v. Streeton, 231 N.C. 301, 56 S.E.2d 649 (1949); State v. Maynard, 247 N.C. 462, 101 S.E.2d 340 (1958); State v. Thompson, 280 N.C. 202, 185 S.E.2d 666 (1972); State v. Swift, 290 N.C. 383, 226 S.E.2d 652 (1976).

The killing of another human being, whether intentional or otherwise, while the person who kills is engaged in the perpetration of a felony, which felony is inherently or foreseeably dangerous to human life, was murder at common law. State v. Shrader, 290 N.C. 253, 225 S.E.2d 522 (1976).

When evidence shows the killing of a person by one who is engaged in the perpetration or the attempt to perpetrate a felony described in this section, the perpetrator may properly be charged and convicted of murder in the first degree, notwithstanding such person's intentions or conduct. State v. Avery, 315 N.C. 1, 337 S.E.2d 786 (1985).

Felony murder, by its definition, does not require intent to kill as an element that must be satisfied for a conviction. State v. Cagle, 346 N.C. 497, 488 S.E.2d 535 (1997), cert. denied, 522 U.S. 1032, 118 S. Ct. 635, 139 L. Ed. 2d 614 (1998).

Trial court did not err in instructing the jury both on premeditation and deliberation, and felony murder, as defendant could be convicted of felony murder even though it was the co-felon he shot and killed during the robbery of the seafood merchant; the State only had to show that the killing occurred by defendant's hands during the perpetration of a felony, and not that the intended victim was killed. State v. Torres, 171 N.C. App. 419, 615 S.E.2d 36 (2005).

Defendant was not prejudiced by the refusal to allow defendant to obviate defendant's intent through testimony under the guise of an expert under G.S. 8C-1-702(a) and G.S. 8C-1-104(a) as: (1) defendant's intent to kill was irrelevant to a consideration of felony murder under G.S. 14-17; and (2) the state's evidence set forth defendant's intent to commit the felony, attempted robbery with a dangerous weapon, during which the killing occurred. State v. Oakes, 209 N.C. App. 18, 703 S.E.2d 476, review denied and dismissed 365 N.C. 197, 709 S.E.2d 918, 2011 N.C. LEXIS 541 (2011).

All Conspirators in Felony Are Guilty. - The felony-murder rule applies whenever a conspirator kills another person in the course of committing a felony. If the unlawful act agreed to be done is dangerous or homicidal in its character, or if its accomplishment necessarily or probably required the use of force and violence which may result in the taking of life unlawfully, every party in such agreement will be held criminally liable for whatever any of his co-conspirators may do in furtherance of the common design. State v. Carey, 288 N.C. 254, 218 S.E.2d 387 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1209 (1976).

When a conspiracy is formed to commit a robbery or burglary, and a murder is committed by any one of the conspirators in the attempted perpetration of the crime, each and all of the conspirators are guilty of murder in the first degree. State v. Bell, 205 N.C. 225, 171 S.E. 50 (1933); State v. Stefanoff, 206 N.C. 443, 174 S.E. 411 (1934); State v. Green, 207 N.C. 369, 177 S.E. 120 (1934); State v. Kelly, 216 N.C. 627, 6 S.E.2d 533 (1939); State v. Miller, 219 N.C. 514, 14 S.E.2d 522 (1941); State v. Bennet, 226 N.C. 82, 36 S.E.2d 708 (1946); State v. Chavis, 231 N.C. 307, 56 S.E.2d 678 (1949); State v. Fox, 277 N.C. 1, 175 S.E.2d 561 (1970); State v. Hairston, 280 N.C. 220, 185 S.E.2d 633, cert. denied, 409 U.S. 888, 93 S. Ct. 194, 34 L. Ed. 2d 145 (1972); State v. Wright, 282 N.C. 364, 192 S.E.2d 818 (1972); State v. Carey, 288 N.C. 254, 218 S.E.2d 387 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1209 (1976); State v. Peplinski, 290 N.C. 236, 225 S.E.2d 568, cert. denied, 429 U.S. 932, 97 S. Ct. 339, 50 L. Ed. 2d 301 (1976); State v. Squire, 292 N.C. 494, 234 S.E.2d 563, cert. denied, 434 U.S. 998, 98 S. Ct. 638, 54 L. Ed. 2d 493 (1977).

But an interrelationship between felony and the homicide is prerequisite to application of felony-murder doctrine. State v. Bush, 289 N.C. 159, 221 S.E.2d 333, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976); State v. Squire, 292 N.C. 494, 234 S.E.2d 563, cert. denied, 434 U.S. 998, 98 S. Ct. 638, 54 L. Ed. 2d 493 (1977); State v. Avery, 315 N.C. 1, 337 S.E.2d 786 (1985).

Unbroken Chain of Events Is Required. - A killing is committed in the perpetration or attempted perpetration of a felony within the purview of a felony-murder statute when there is no break in the chain of events leading from the initial felony to the act causing death, so that the homicide is linked to or part of the series of incidents, forming one continuous transaction. State v. Thompson, 280 N.C. 202, 185 S.E.2d 666 (1972); State v. Bush, 289 N.C. 159, 221 S.E.2d 333 (1976); State v. Shrader, 290 N.C. 253, 225 S.E.2d 522 (1976); State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976); State v. Squire, 292 N.C. 494, 234 S.E.2d 563, cert. denied, 434 U.S. 998, 98 S. Ct. 638, 54 L. Ed. 2d 493 (1977); State v. Wooten, 295 N.C. 378, 245 S.E.2d 699 (1978); State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788 (1981); State v. Fields, 315 N.C. 191, 337 S.E.2d 518 (1985); State v. Avery, 315 N.C. 1, 337 S.E.2d 786 (1985).

In felony murder, the killing may, but need not, be intentional. There must, however, be an unbroken chain of events leading from the attempted felony to the act causing death, so that the homicide is part of a series of events forming one continuous transaction. State v. Gibbs, 335 N.C. 1, 436 S.E.2d 321 (1993), cert. denied, 512 U.S. 1246, 114 S. Ct. 2767, 129 L. Ed. 2d 881 (1994).

Trial court properly denied defendant's motion to dismiss the charge of first-degree felony murder because a break in time, place, and causal relationship did not occur between the victim's death, which happened in an auto accident in a high speed chase on a highway 30 minutes after defendant stole a vehicle, and the underlying felony of robbery with a dangerous weapon, in which defendant stole the vehicle from the owner of the vehicle with a knife in a shopping mall parking lot. State v. Doyle, 161 N.C. App. 247, 587 S.E.2d 917 (2003).

Continuous Transaction. - A dwelling is occupied, for purposes of the arson statute, when the interval between the mortal blow and the burning is short, and the murder and the arson constitute parts of a continuous transaction. State v. Campbell, 332 N.C. 116, 418 S.E.2d 476 (1992).

Trial court properly submitted a first-degree murder charge to the jury on the basis of felony murder, where the evidence tended to show that defendant shot the first victim after the first victim tackled defendant's brother, that the second victim immediately grabbed defendant attempting to disarm him, and that defendant then shot the second victim in the head. State v. Johnson, 182 N.C. App. 63, 641 S.E.2d 364 (2007), review denied, 361 N.C. 433, 649 S.E.2d 395 (2007).

Trial court did not err in submitting a murder charge to the jury on the theory of felony murder under G.S. 14-17 in the case of a defendant shooting the victim while attempting to collect money due for the delivery of cocaine a week earlier; defendant admitted that he was there to collect the money for the cocaine. State v. Freeman, 202 N.C. App. 740, 690 S.E.2d 17 (2010), review granted and review denied 364 N.C. 328, 701 S.E.2d 241, 2010 N.C. LEXIS 704 (2010), review denied 364 N.C. 328, 701 S.E.2d 240, 2010 N.C. LEXIS 580 (2010).

State presented sufficient evidence to establish that defendant shot and killed the victim in the course of the robbery of the victim's handgun. The State's evidence indicated that defendant did not arrive at the car wash office with a weapon, but during the course of the evening obtained the victim's handgun, used it to shoot both victims, and then fled with the weapon; the State produced sufficient evidence that defendant's taking and use of the weapon were part of a continuous transaction, such that it was proper to convict him of the armed robbery of the same instrument used to commit the robbery. State v. McMillan, 214 N.C. App. 320, 718 S.E.2d 640 (2011).

Trial court properly denied defendant's motion to dismiss the first-degree murder charge under the felony murder rule, because there was substantial evidence from which the jury could have concluded that defendant struck the victim with a rock in order to take his wallet and that the killing and taking occurred as part of a continuous transaction. State v. Gettys, 219 N.C. App. 93, 724 S.E.2d 579 (2012).

Evidence was sufficient to permit a jury to find that defendant murdered the victim in the perpetration of felony larceny, as part of one continuous transaction, because the victim was killed in the victim's apartment by blunt force injuries to the victim's head, defendant's DNA profile matched the DNA obtained from the top of a broken beer bottle found by the victim's body, and defendant possessed the victim's vehicle after the victim's death. State v. McNeill, 243 N.C. App. 762, 778 S.E.2d 457 (2015), review denied, 781 S.E.2d 482, 2016 N.C. LEXIS 49 (2016).

Where the felony and the murder were interrelated parts of a series of events that formed one continuous transaction, defendant was properly charged with first-degree murder under the felony-murder theory. State v. Price, 344 N.C. 583, 476 S.E.2d 317 (1996).

There was no break in the chain of events between the taking of the victim's property and the force causing the victim's death, so that the taking and the homicide were part of the same series of events, forming one continuous transaction. State v. Hartman, 344 N.C. 445, 476 S.E.2d 328 (1996), cert. denied, 520 U.S. 1201, 117 S. Ct. 1562, 137 L. Ed. 2d 708 (1997).

Victim's Arrival Not a Break in Chain. - Where victim's arrival at the scene could be viewed as a break in the chain of events only insofar as his arrival interrupted the commission of felonies that, up until that moment, had been ongoing, his killing by the defendant resulted from and was the culmination of defendant's course of criminal conduct. State v. Fields, 315 N.C. 191, 337 S.E.2d 518 (1985).

Nor Is Commission of Underlying Felony. - A killing is committed in the perpetration or attempted perpetration of a felony when there is no break in the chain of events leading from the initial felony to the act causing death, and the underlying felony is not deemed terminated prior to the killing merely because the participants have proceeded far enough to be convicted of the underlying felony. State v. Rinck, 303 N.C. 551, 280 S.E.2d 912 (1981).

But completion of the felony is not required to sustain a conviction under the felony-murder rule. State v. Hopper, 292 N.C. 580, 234 S.E.2d 580 (1977).

Self-defense, perfect or imperfect, is not a defense to first-degree murder under the felony murder theory. State v. Richardson, 341 N.C. 658, 462 S.E.2d 492 (1995).

As the purpose of the felony murder role is to deter even accidental killings from occurring during the commission of a dangerous felony, to allow self-defense, perfect or imperfect, to apply to felony murder would defeat that purpose. It is only certain applicable underlying felonies that can be subject to an instruction on perfect self-defense. State v. Richardson, 341 N.C. 658, 462 S.E.2d 492 (1995).

The felony murder rule may be applied when the underlying felony is murder. State v. Weeks, 322 N.C. 152, 367 S.E.2d 895 (1988).

A murder committed in the perpetration or attempt to perpetrate arson is murder in the first degree, irrespective of premeditation, deliberation or malice aforethought. State v. McLaughlin, 286 N.C. 597, 213 S.E.2d 238 (1975), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3206, 49 L. Ed. 2d 1208 (1976).

A homicide committed in the perpetration or attempted perpetration of rape is murder in the first degree and proof thereof dispenses with the necessity of proof of premeditation and deliberation. State v. Mays, 225 N.C. 486, 35 S.E.2d 494 (1945); State v. King, 226 N.C. 241, 37 S.E.2d 684 (1946); State v. Crawford, 260 N.C. 548, 133 S.E.2d 232 (1963).

Statutory Rape of a Child by an Adult. - Defendant's conviction of first-degree murder under the felony-murder rule was appropriate because the underlying felony of statutory rape of a child by an adult sufficiently supported the conviction as the intent to commit the underlying act of sexual intercourse, inherent in the offense of statutory rape, satisfied the intent required for the crime to serve as the basis of a felony-murder charge. Furthermore, defendant was not entitled to vacatur of the conviction based on defendant's acquittal of the predicate felony. State v. Watson, - N.C. App. - , - S.E.2d - (May 4, 2021).

Homicide in Perpetration or Attempted Perpetration of Burglary. - A finding that a homicide was committed in the perpetration of a burglary suffices to support a conviction of murder in the first degree. State v. Simmons, 286 N.C. 681, 213 S.E.2d 280 (1975), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3207, 49 L. Ed. 2d 1208 (1976).

Defendant's admission he pulled up a chair to the outside of the victim's window, had a gun in his possession when it discharged, and shot the victim, allowed the jury to infer defendant's attempted first-degree burglary and resulting felony murder. State v. Bumgarner, 147 N.C. App. 409, 556 S.E.2d 324 (2001).

Murder committed in the perpetration or attempt to perpetrate robbery is murder in the first degree, irrespective of premeditation or deliberation or malice aforethought. State v. Lane, 166 N.C. 333, 81 S.E. 620 (1914); State v. Glover, 208 N.C. 68, 179 S.E. 6 (1935); State v. Exum, 213 N.C. 16, 195 S.E. 7 (1938); State v. Alston, 215 N.C. 713, 3 S.E.2d 11 (1939); State v. Kelly, 216 N.C. 627, 6 S.E.2d 533 (1939); State v. Biggs, 224 N.C. 722, 32 S.E.2d 352 (1944); State v. Maynard, 247 N.C. 462, 101 S.E.2d 340 (1958); State v. Bunton, 247 N.C. 510, 101 S.E.2d 454 (1958); State v. Bailey, 254 N.C. 380, 119 S.E.2d 165 (1961); State v. Haynes, 276 N.C. 150, 171 S.E.2d 435 (1970); State v. Wright, 282 N.C. 364, 192 S.E.2d 818 (1972); State v. Carey, 285 N.C. 509, 206 S.E.2d 222 (1974), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1209 (1976); State v. Simmons, 286 N.C. 681, 213 S.E.2d 280 (1975), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3207, 49 L. Ed. 2d 1208 (1976); State v. Carey, 288 N.C. 254, 218 S.E.2d 387 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1209 (1976); State v. McZorn, 288 N.C. 417, 219 S.E.2d 201 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3210, 49 L. Ed. 2d 1210 (1976); State v. Bush, 289 N.C. 159, 221 S.E.2d 333, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976); State v. Jones, 290 N.C. 292, 225 S.E.2d 549 (1976); State v. Swift, 290 N.C. 383, 226 S.E.2d 652 (1976); State v. Dollar, 292 N.C. 344, 233 S.E.2d 521 (1977); State v. Wall, 304 N.C. 609, 286 S.E.2d 68 (1982).

Alternative Acts of Robbery. - Where a trial court's instructions allowed a jury to find defendant guilty of felony murder if it found that he committed either robbery with a dangerous weapon of a store owner or robbery with a dangerous weapon of a customer - the commission of one of the several felonies enumerated in G.S. 14-17 - the N.C. Const., Art. I, § 24 and G.S. 15A-1237(b) requirements of jury unanimity were satisfied. Either of these alternative acts established an element of felony murder. State v. Taylor, 362 N.C. 514, 669 S.E.2d 239 (2008), cert. denied, 558 U.S. 851, 130 S. Ct. 129, 175 L. Ed. 2d 84 (2009).

Evidence that defendant robbed a restaurant at night, ordered the victims to lie down and then methodically aimed and shot them was sufficient to show premeditation and deliberation, and it was thus not error for the trial court to refuse to instruct the jury on second degree murder. State v. Robinson, 330 N.C. 1, 409 S.E.2d 288 (1991).

An essential element of armed robbery, indeed the heart of the offense, is that a firearm or other dangerous weapon is used whereby the life of a person is endangered or threatened. This act is by its nature inherently dangerous to human life; and if this danger against which the statute is aimed occurs and the robber kills, the act is ordinarily murder under the felony-murder rule. State v. Barnett, 307 N.C. 608, 300 S.E.2d 340 (1983); State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983).

If there is evidence tending to show that defendant took property belonging to the deceased immediately after killing him, such evidence would support a jury determination that the killing occurred during the perpetration of a robbery. State v. Wooten, 295 N.C. 378, 245 S.E.2d 699 (1978).

Interval Between Murder and Taking. - For purposes of a felony murder charge, a homicide victim is still a "person," within the meaning of the robbery statute, when the interval between the fatal blow and the taking of property is short. State v. Pakulski, 319 N.C. 562, 356 S.E.2d 319 (1987).

Neither the commission of armed robbery, as defined by G.S. 14-87(a), nor the commission of felony murder based on armed robbery depends upon whether the intention to commit the taking of the victim's property was formed before or after the killing. State v. Handy, 331 N.C. 515, 419 S.E.2d 545 (1992).

What Unspecified Felonies Are Within Purview of Section. - Any unspecified felony is within the purview of this section if the commission or attempted commission thereof creates any substantial foreseeable human risk and actually results in the loss of life. This includes, but is not limited to, felonies which are inherently dangerous to life. State v. Thompson, 280 N.C. 202, 185 S.E.2d 666 (1972); State v. Foster, 293 N.C. 674, 239 S.E.2d 449 (1977); State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788 (1981).

The felony-murder language contained in this section will be accorded its plain meaning, and will not be interpreted to mean that only those offenses which are expressly set out and felonies where the use of a deadly weapon is not an element of the felony may serve as underlying felonies for purposes of the felony-murder rule. State v. King, 316 N.C. 78, 340 S.E.2d 71 (1986).

Felony murder rule may be used in automobile cases where an underlying felony is committed, even though the General Assembly has enacted the more specific statutes of felony death by vehicle and misdemeanor death by vehicle, G.S. 20-141.4. State v. Jones, 133 N.C. App. 448, 516 S.E.2d 405 (1999), aff'd in part, rev'd in part on other grounds, and remanded, 353 N.C. 159, 538 S.E.2d 917 (2000).

And prohibition against ex post facto laws was not violated by the felony murder rule's application in automobile accident. State v. Jones, 133 N.C. App. 448, 516 S.E.2d 405 (1999), aff'd in part, rev'd in part on other grounds, and remanded, 353 N.C. 159, 538 S.E.2d 917 (2000).

Discharging Firearm into Occupied Property. - The criminal offense created by G.S. 14-34.1 is a felony within the purview of this section. State v. Williams, 284 N.C. 67, 199 S.E.2d 409 (1973); State v. Williams, 21 N.C. App. 525, 204 S.E.2d 864 (1974); State v. Swift, 290 N.C. 383, 226 S.E.2d 652 (1976); State v. Wall, 304 N.C. 609, 286 S.E.2d 68 (1982); State v. King, 316 N.C. 78, 340 S.E.2d 71 (1986).

A person has committed the felony of firing into an occupied vehicle under G.S. 14-34.1, which will support a conviction of felony murder under this section, if he intentionally, without legal justification or excuse, discharges a firearm into an occupied vehicle, with knowledge that the vehicle is then occupied by one or more persons, or when he has reasonable grounds to believe that the vehicle might be occupied by one or more persons. State v. Wheeler, 321 N.C. 725, 365 S.E.2d 609 (1988).

Any rational trier of fact could have found that defendant intended to fire into vehicle in which victim was sitting when he was killed from evidence that defendant pointed his pistol toward the vehicle and fired the pistol so that a bullet went into the vehicle. State v. Wheeler, 321 N.C. 725, 365 S.E.2d 609 (1988).

Discharging a firearm into an occupied structure is a felony which will support a first degree felony murder prosecution. When persons act in concert to commit the felony of discharging a firearm into an occupied structure, each person is guilty not only of that felony but for any homicide committed in its perpetration. State v. Thomas, 325 N.C. 583, 386 S.E.2d 555 (1989).

Evidence supported instruction that there was evidence that defendant confessed to first degree murder where he stated that willfully and with knowledge he discharged his gun three times into an occupied vehicle. State v. Cannon, 341 N.C. 79, 459 S.E.2d 238 (1995).

Evidence was sufficient to submit a first-degree felony murder charge under the felony murder rule under G.S. 14-17 based on discharging a firearm into an occupied vehicle under G.S. 14-34.1 because defendant admitted that he drove his vehicle into a wooded area off the roadway and fired repeated shots at the victim's truck as it drove by. State v. Hunt, 198 N.C. App. 488, 680 S.E.2d 720 (2009), review denied, 363 N.C. 747, 689 S.E.2d 141 (2009).

Trial court did not err by allowing the discharging of a firearm into occupied property to serve as the predicate felony to defendant's felony murder conviction. State v. Maldonado, 241 N.C. App. 370, 772 S.E.2d 479 (2015).

Defendant was not prejudiced by his counsel's failure to argue that it was error to instruct the jury on felony murder based on the underlying felony of discharging a weapon into occupied property given that defendant only fired a single shot at a single victim, and therefore the trial court erred by granting defendant's motion for appropriate relief and vacating his convictions of first-degree murder and discharging a weapon into occupied property, because no legal authority existed in North Carolina that would have prohibited defendant's felony murder conviction from being predicated on the crime of discharging a weapon into occupied property. State v. Spruiell, 252 N.C. App. 486, 798 S.E.2d 802 (2017).

Felonious Escape. - A murder committed in the perpetration or attempt to perpetrate a felonious escape is murder in the first degree. State v. Lee, 277 N.C. 205, 176 S.E.2d 765 (1970); State v. Squire, 292 N.C. 494, 234 S.E.2d 563, cert. denied, 434 U.S. 998, 98 S. Ct. 638, 54 L. Ed. 2d 493 (1977).

Felonious Breaking and Entering and Larceny. - Where the evidence tends to show that defendant, armed with a pistol, feloniously broke into and entered an apartment, that he committed the crime of felonious larceny therein, and that while in said apartment he came upon and shot and killed the deceased, these crimes created substantial foreseeable human risks and therefore were unspecified felonies within the purview of this section. State v. Thompson, 280 N.C. 202, 185 S.E.2d 666 (1972).

Where the initial breaking into doctor's office was not accomplished with a deadly weapon, and there was no evidence that defendants even possessed a deadly weapon when they broke into the office, the breaking or entering could not serve as an underlying felony on which to predicate a felony murder conviction based on the murder of security guard. State v. Pakulski, 319 N.C. 562, 356 S.E.2d 319 (1987).

Evidence was sufficient for first-degree murder under the felony-murder rule of G.S. 14-17 because there was a common plan to break into a house and either kill or rob: defendant obtained guns and drove a codefendant to the house; the codefendant broke into and entered the house carrying a gun; defendant was carrying a gun when he left the vehicle to check on the codefendant; and the victim was found in the basement of the house. State v. Wiley, 182 N.C. App. 437, 642 S.E.2d 717 (2007), review dismissed, 795 S.E.2d 220, 2017 N.C. LEXIS 36 (2017); habeas corpus dismissed, Certificate of appealability denied, 2017 U.S. Dist. LEXIS 55269 (2017); cert. dismissed, 792 S.E.2d 783, 2016 N.C. LEXIS 763 (2016); review dismissed, 2017 N.C. LEXIS 36 (2017).

Sodomy. - Without deciding whether every felony not specified in this section must be inherently dangerous to life, the crime committed where a 15-year-old boy, under threat of gunfire and knife, was compelled to submit to an act of sodomy by the defendant was a crime as atrocious and as inherently dangerous as the specified felonies in this section. State v. Doss, 279 N.C. 413, 183 S.E.2d 671 (1971), death sentence vacated, 408 U.S. 939, 92 S. Ct. 2875, 33 L. Ed. 762 (1972).

Kidnapping. - When persons act in concert to commit the felony of first-degree kidnapping, each person is guilty not only of first-degree kidnapping, but also for any homicide committed in its perpetration. State v. Roseborough, 344 N.C. 121, 472 S.E.2d 763 (1996).

Where evidence was sufficient to establish that the blows used for restraint were separate and apart from the blows causing death, trial court did not err in denying motion to dismiss second-degree kidnapping charge. State v. Stroud, 345 N.C. 106, 478 S.E.2d 476 (1996), cert. denied, 522 U.S. 826, 118 S. Ct. 86, 139 L. Ed. 2d 43 (1997), cert. dismissed 368 N.C. 424, 799 S.E.2d 145, 2015 N.C. LEXIS 1200 (2015).

Where the evidence showed that the victim was transported in her car to the location of the murder, that defendant took the victim's keys, and that he then drove back to and attempted to rob the store amply supported submission of felony murder with kidnapping as the underlying felony. State v. Richardson, 346 N.C. 520, 488 S.E.2d 148 (1997), cert. denied, 522 U.S. 1056, 118 S. Ct. 710, 139 L. Ed. 2d 652 (1998).

When defendant presented the victim's withdrawal slip and driver's license to the bank while holding the victim hostage in the passenger's seat, she made a false representation to the bank that the withdrawal was legitimate and had the continuing support of the victim; because defendant's misrepresentation was clearly calculated to mislead and did in fact mislead, defendant's actions constituted a false pretense and the "purpose" element of the kidnapping charge was satisfied and thus, the kidnapping and felony murder convictions were supported by sufficient evidence. State v. Parker, 354 N.C. 268, 553 S.E.2d 885 (2001), cert. denied, 535 U.S. 1114, 122 S. Ct. 2332, 153 L. Ed. 2d 162 (2002).

Felonious Child Abuse. - Felony murder on the basis of felonious child abuse requires the State to prove that the killing took place while the accused was perpetrating or attempting to perpetrate felonious child abuse with the use of a deadly weapon. State v. Pierce, 346 N.C. 471, 488 S.E.2d 576 (1997).

Felonious Child Abuse And Use of Hands as Deadly Weapons. - The court rejected the defendant's ex post facto objections and upheld the defendant's conviction, under this section, of murder while committing felonious child abuse in violation of G.S. 14-318.4 with the use of a deadly weapon, her hands, although this theory had not, at the time of the victim's death, been used to support a first degree murder conviction resulting from the use of the hands as deadly weapons. State v. Krider, 138 N.C. App. 37, 530 S.E.2d 569 (2000).

Mere possession of a deadly weapon is enough to satisfy the requirement that the use of a deadly weapon distinguishes the commission or attempted commission of an unspecified or "other" felony and makes the defendant guilty of a felony murder, even if the weapon is not physically used to actually commit the felony. State v. Fields, 315 N.C. 191, 337 S.E.2d 518 (1985).

Assault with a Deadly Weapon with Intent to Kill. - Where defendant was convicted of assault with a deadly weapon with intent to kill inflicting serious injury under G.S. 14-32, which is a felony involving use of a deadly weapon, the crime was thus within the purview of the felony-murder statute. State v. Terry, 337 N.C. 615, 447 S.E.2d 720 (1994).

Deadly Weapons. - Where there was evidence that the defendant used gasoline and fire to burn a mobile home while it was occupied, the gasoline and fire were used in combination as "a deadly weapon" for purposes of a felony murder conviction. State v. Hales, 344 N.C. 419, 474 S.E.2d 328 (1996).

State did not have to prove that defendant knew the codefendant possessed a gun in order to for defendant to be convicted of felony murder under G.S. 14-17 based on trafficking in cocaine with a deadly weapon in violation of G.S. 90-95 under a concert of action theory; defendant's knowledge that the codefendant had a gun was irrelevant as long as the codefendant killed the victim while possession or attempting to possess the drugs, which the State substantially established was the common purpose of defendant and the codefendant. State v. Herring, 176 N.C. App. 395, 626 S.E.2d 742, appeal dismissed, cert. denied, 637 S.E.2d 183 (N.C. 2006).

Trial court did not err by submitting to the jury that defendant's hands and arms could constitute deadly weapons during his felony murder trial because during the assault, the victim's assailant engaged in a violent attack while using his hands and arms that resulted in extensive injuries. State v. Steen, - N.C. App. - , 826 S.E.2d 478 (2018).

Pecuniary gain is not an essential element of felony murder. This circumstance examines the motive of the defendant rather than his acts; however, while motive does not constitute an element of the offense, it is appropriate to be considered on the question of sentence. State v. Irwin, 304 N.C. 93, 282 S.E.2d 439 (1981).

Independent proof of the underlying felony in a felony murder prosecution is not necessary where a confession, otherwise corroborated as to the murder, includes sufficient facts to support the existence of the felony. State v. Franklin, 308 N.C. 682, 304 S.E.2d 579 (1983), overruled on other grounds in State v. Parker, 315 N.C. 222, 337 S.E.2d 487 (1985).

It is proper to show solely by a defendant's confession that the homicide was murder in the first degree by showing that the murder was committed in the perpetration of another felony. State v. Franklin, 308 N.C. 682, 304 S.E.2d 579 (1983), overruled on other grounds in State v. Parker, 315 N.C. 222, 337 S.E.2d 487 (1985).

Merger of Underlying Felony into Murder Conviction. - When a defendant is convicted of first-degree murder pursuant to the felony murder rule, and a verdict of guilty is also returned on the underlying felony, this latter conviction provides not basis for an additional sentence; hence it merges into the murder conviction, and any judgment imposed on the underlying felony must be arrested. State v. Silhan, 302 N.C. 223, 275 S.E.2d 450 (1981), overruled in part by State v. Sanderson, 346 N.C. 669, 488 S.E.2d 133, State v. Adams, 347 N.C. 48, 490 S.E.2d 220 (1997).

Where defendants were charged with first-degree murder under the felony murder doctrine, the underlying felony became part of the first-degree murder charge, and further prosecution for the underlying felony was prohibited; therefore, the trial court was not required to instruct the jury as to the lesser included offenses of the underlying felony. State v. Rinck, 303 N.C. 551, 280 S.E.2d 912 (1981).

When the sole basis of a defendant's conviction of first-degree murder is pursuant to the felony murder rule, no additional sentence may be imposed for the underlying felony as a separate independent offense, since the underlying felony merges with the conviction of first degree murder. State v. Weeks, 322 N.C. 152, 367 S.E.2d 895 (1988).

A defendant may not be punished both for felony murder and for the underlying, predicate felony. Thus, the underlying felony supporting a conviction for felony murder merges into the murder conviction, provides no basis for an additional sentence, and any judgment imposed thereon must be arrested. State v. Barlowe, 337 N.C. 371, 446 S.E.2d 352 (1994).

If a defendant is convicted only of first-degree felony murder, the underlying felony cannot be used as an aggravating circumstance at the sentencing proceeding, nor if convicted of the underlying felony can a defendant be sentenced separately for that felony. State v. Millsaps, 356 N.C. 556, 572 S.E.2d 767 (2002).

Upon defendant's conviction of first degree murder on a theory of felony murder, the trial court erred by failing to arrest judgment on the underlying felony of felony larceny. State v. McNeill, 243 N.C. App. 762, 778 S.E.2d 457 (2015), review denied, 781 S.E.2d 482, 2016 N.C. LEXIS 49 (2016).

Same - Arson. - Where proof of arson charge was an essential and indispensable element in the State's proof of felony-murder, it afforded no basis for additional punishment. State v. White, 291 N.C. 118, 229 S.E.2d 152 (1976).

Same - Robbery. - Where it appeared conclusively that armed robbery charges were proved as essential elements in the capital offense of murder in the first degree upon which defendants were convicted, such charges became a part of and were merged into the murder charges. Having been so used, the defendants could not again be charged, convicted and sentenced for these elements, although the robberies constituted crimes within themselves. State v. Carroll, 282 N.C. 326, 193 S.E.2d 85 (1972).

When the State, in the trial of a charge of murder, uses evidence that the murder occurred in the perpetration of an armed robbery so as to establish that the murder was murder in the first degree, the underlying felony becomes a part of the murder charge to the extent of preventing a further prosecution or sentence of the defendant for commission of the armed robbery. State v. Squire, 292 N.C. 494, 234 S.E.2d 563, cert. denied, 434 U.S. 998, 98 S. Ct. 638, 54 L. Ed. 2d 493 (1977).

Same - Discharging Firearm into Occupied Property. - When a felony within the purview of G.S. 14-34.1 is relied upon as an essential element of and the basis for the conviction of a defendant for murder in the first degree under the felony-murder rule, no additional punishment can be imposed for such felony as an independent criminal offense. State v. Williams, 284 N.C. 67, 199 S.E.2d 409 (1973).

Same - Firing at Automobile - State presented sufficient evidence for a reasonable jury to have found that defendant intended to shoot at the victim's truck as he drove away, and committed the offense of felony murder in violation of G.S. 14-17. State v. Mays, 154 N.C. App. 572, 573 S.E.2d 202 (2002).

No double jeopardy existed where defendant was convicted of both discharging a firearm into a vehicle and felony murder, because North Carolina does not recognize the merger doctrine. State v. Jackson, 189 N.C. App. 747, 659 S.E.2d 73 (2008), review denied, appeal dismissed, 362 N.C. 512, 668 S.E.2d 564 (2008), cert. denied, 555 U.S. 1215, 129 S. Ct. 1532, 173 L. Ed. 2d 662 (2009).

Punishment for Offense Which Was Not the Underlying Felony. - When a defendant has been convicted of murder in the first degree based upon a finding that the murder was committed in the perpetration of a felony, separate punishment may not be imposed for the underlying felony. However, separate punishment may be imposed for any offense which arose out of the same transaction, but was not the underlying felony for the felony-murder conviction. State v. Avery, 315 N.C. 1, 337 S.E.2d 786 (1985).

Same - Where Defendant Is Convicted on Theory of Premeditation and Deliberation. - When a defendant has been convicted of first degree murder on a theory of premeditation and deliberation and in the process commits some other felony, the other felony is not an element of the murder conviction although the other felony may be part of the same continuous transaction, and therefore, a defendant may in such cases be sentenced upon both the murder conviction and the other felony conviction. State v. Silhan, 302 N.C. 223, 275 S.E.2d 450 (1981), overruled in part by State v. Sanderson, 346 N.C. 669, 488 S.E.2d 133, State v. Adams, 347 N.C. 48, 490 S.E.2d 220 (1997).

When a defendant is charged with both felony murder and premeditated and deliberate murder, but the jury returns a verdict of guilty of first degree murder without specifying upon which theory it relied, the court is to treat the verdict as a conviction for felony murder. The merger rule would then prohibit the court from considering the underlying felony in the sentencing hearing. However, when the jury's verdict specifies both theories in its verdict of murder in the first degree, it is the court's decision, not that of the jury, to select the theory on which the sentence for the homicide is to be based. And where the sentence for homicide rests upon the premeditated and deliberate murder conviction, the merger rule does not apply. State v. Fields, 315 N.C. 191, 337 S.E.2d 518 (1985).

When a jury is properly instructed upon both theories of premeditation and deliberation and felony murder, and returns a first degree murder verdict without specifying whether it relied on either or both theories, the case is treated as if the jury relied upon the felony murder theory for purposes of applying the merger rule, and judgment imposed on a conviction for the underlying felony must be arrested. State v. Silhan, 302 N.C. 223, 275 S.E.2d 450 (1981), overruled in part by State v. Sanderson, 346 N.C. 669, 488 S.E.2d 133, State v. Adams, 347 N.C. 48, 490 S.E.2d 220 (1997).

Where the jury specifically found defendant guilty of first degree murder of one victim under the felony murder rule, but made no finding as to defendant's guilt on the basis of malice, premeditation and deliberation, and the underlying felony was the second-degree murder of another victim, the trial court could not impose an additional sentence upon defendant by sentencing him separately for this murder. State v. Weeks, 322 N.C. 152, 367 S.E.2d 895 (1988).

Nonmerger of Felony Where Defendant Found Guilty Under Dual Theories. - When the evidence so warrants, a trial judge may submit a special verdict form to the jury that allows the jurors to indicate whether they find defendant guilty of first degree murder based upon premeditation and deliberation or first degree murder based on a felony murder. However, if both theories are submitted to the jury and the jury finds defendant guilty under both theories, the underlying felony need not merge with the murder. State v. Lewis, 321 N.C. 42, 361 S.E.2d 728 (1987).

Nonmerger Where Victim Does Not Die from Assault - Where the victim did not die as a result of an assault with a machete, but from strangulation, the assault was a separate offense from the murder and the trial court did not err in submitting a felony murder instruction to the jury because the felonious assault did not merge into the homicide. State v. Carroll, 356 N.C. 526, 573 S.E.2d 899 (2002), cert. denied, 539 U.S. 949, 123 S. Ct. 2624, 156 L. Ed. 2d 640 (2003).

Where the court has consolidated first-degree murder and armed robbery charges in the same trial against defendant under G.S. 15-152 (now G.S. 15A-926(a) ), the court may instruct the jury on murder in the first degree as a separate crime requiring deliberation, premeditation, and malice, rather than permit the jury to rely on the felony-murder rule as a basis for finding defendant guilty of first degree murder. State v. Thompson, 285 N.C. 181, 203 S.E.2d 781, cert. denied, 419 U.S. 867, 95 S. Ct. 123, 42 L. Ed. 104 (1974).

Where the trial judge submitted case to the jury on alternative theories charging felony murder in the commission of armed robbery and felonious breaking and entering, one of which was determined to be erroneous and the other properly submitted, and it could not be discerned from the record the theory upon which the jury relied, the case would be remanded for a new trial. State v. Pakulski, 319 N.C. 562, 356 S.E.2d 319 (1987).

Indictment for Underlying Felony. - The State was not required to indict defendant for burglary in order to use burglary as the underlying felony in felony murder charges; thus, any variance between the burglary indictment and the jury charge on burglary did not prevent the State from using burglary as the underlying felony. State v. Scott, 150 N.C. App. 442, 564 S.E.2d 285 (2002), appeal dismissed, cert. denied, 356 N.C. 443, 573 S.E.2d 508 (2002).

Submission of Felony Murder Charge Not Error. - Although there was sufficient evidence to submit felony murder to the jury, even if there were not, defendant could have suffered no prejudice thereby where the jury did not find him guilty of any charges based on a felony murder theory. State v. Green, 321 N.C. 594, 365 S.E.2d 587, cert. denied, 488 U.S. 900, 109 S. Ct. 247, 102 L. Ed. 2d 235 (1988).

Failure to Submit Felony Murder Theory. - Because defendant, who was convicted of first degree murder upon a theory of premeditation and deliberation, could have received the same sentence regardless of whether a felony murder theory was also submitted to the jury, he suffered no prejudice by failure of the court to submit such theory to the jury. State v. Lewis, 321 N.C. 42, 361 S.E.2d 728 (1987).

Evidence of Murder in Perpetration of Felony Held Sufficient. - Evidence tending to show that the prisoner, with another, entered a store with intent to rob its cash drawer and shot and killed the deceased was evidence of an attempt to commit a felony and sufficient to sustain a verdict of murder in the first degree, as defined by this section, under proper instructions from the court upon conflicting evidence. State v. Sterling, 200 N.C. 18, 156 S.E. 96 (1931).

Evidence tending to show that defendant killed the deceased with a deadly weapon while attempting to perpetrate a robbery was sufficient to be submitted to the jury on the issue of first degree murder, the credibility and probative force of the evidence being for the jury. State v. Langley, 204 N.C. 687, 169 S.E. 705 (1933).

Evidence tending to show that defendant drove to a filling station at night with two others for the purpose of robbery, that defendant waited outside in the car while his companions went into the filling station, and that deceased was killed by a shot from a gun fired from the outside was sufficient to be submitted to the jury on the question of defendant's guilt of murder in the first degree as stated in this section. State v. Ferrell, 205 N.C. 640, 172 S.E. 186 (1933).

Evidence that defendant, while in the custody of officers of the law who had arrested him when they apprehended him in the commission of a robbery, drew his pistol in an attempt to escape, and with premeditation and deliberation shot one of the officers in his attempt to escape, was sufficient to support an instruction to the jury on the question of murder in the first degree. State v. Brooks, 206 N.C. 113, 172 S.E. 879 (1934).

Evidence tending to show that defendant perpetrated or attempted to perpetrate the crime of arson upon a dwelling house, and thereby proximately caused the deaths of the occupants, was sufficient to be submitted to the jury on the charge of murder in the first degree. State v. Anderson, 228 N.C. 720, 47 S.E.2d 1 (1948).

Evidence tending to show that defendants conspired to rob deceased and that they killed him with deadly weapons in the perpetration of the robbery was sufficient to take the issue of their guilt of murder in the first degree to the jury. State v. Chavis, 231 N.C. 307, 56 S.E.2d 678 (1949).

The confession of defendant that while he was having sexual intercourse with an eight-year-old child, she started to scream and that he put his hand over her mouth, that when he took his hand off her mouth she spoke once and said nothing more, and that he believed her to be dead and carried her away and hid her body, with corroborating evidence that deceased was last seen with defendant, and that her body was found at the place where defendant said he placed it, with expert medical testimony of the use of force and violence in the penetration of deceased's vagina, and that death resulted from suffocation from the bursting of air sacs in deceased's lungs, was held sufficient to be submitted to the jury and sustain a conviction of murder in the first degree. State v. Crawford, 260 N.C. 548, 133 S.E.2d 232 (1963).

In a prosecution for murder committed during perpetration of an armed robbery and for conspiracy to commit armed robbery, the proof of murder in the first degree is complete when the State proves beyond a reasonable doubt the trigger man shot and killed the victim in the trigger man's attempt to rob him. State v. Carey, 288 N.C. 254, 218 S.E.2d 387 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1209 (1976).

In a prosecution for first degree murder, where defendant admitted to State's witness that he and his brother had a blunt instrument and a knife when they decided to rob decedent, and evidence showed that decedent died of injuries inflicted by both blunt and sharp objects, the evidence was sufficient to withstand a motion for nonsuit even though defendant's admissions did not include the actual use of the weapons against decedent. State v. Warren, 289 N.C. 551, 223 S.E.2d 317 (1976).

Where the evidence, taken in the light most favorable to the State, permits a legitimate inference that defendant was engaged in the perpetration or attempted perpetration of a robbery at the time the deceased was killed, the jury is entitled to draw the inference, notwithstanding the State's introduction of defendant's extrajudicial declarations in which he stated that he killed in self-defense rather than in the course of a robbery. State v. Wooten, 295 N.C. 378, 245 S.E.2d 699 (1978).

Evidence held sufficient to establish that defendant killed victim in the perpetration of the felony of attempting to burn a building used for trade, a felony committed with the use of a deadly weapon, a fire bomb. State v. Avery, 315 N.C. 1, 337 S.E.2d 786 (1985), aff'd, 95 N.C. App. 572, 383 S.E.2d 224 (1989).

Evidence tending to show that the defendant was engaged in a common plan with another individual to perpetrate a robbery against victim and that defendant was present at the scene of the robbery, along with evidence from which the jury could find that the other individual killed the victim in furtherance of the plan to rob him, was sufficient for the jury to find the defendant guilty of first-degree murder under the felony-murder rule, notwithstanding the fact that it might conclude that he did not participate in the actual killing. State v. Barts, 316 N.C. 666, 343 S.E.2d 828 (1986).

Evidence as to the position of the victim's legs and evidence of the removal of clothes from the lower part of the victim's body was sufficient, along with other evidence, to be submitted to the jury on a charge of felony murder when the underlying felony was attempted rape. State v. Harris, 319 N.C. 383, 354 S.E.2d 222 (1987).

Despite testimony of victim to a completed armed robbery, where defendant testified that when he went into house he intended to rob both men who were there, but that after he shot murder victim the other victim asked defendant not to shoot him and threw his wallet toward defendant and that defendant left without taking the wallet, this was evidence from which the jury could have found all the elements of attempted armed robbery so as to support a verdict of felony murder based on attempted armed robbery. State v. Blake, 326 N.C. 31, 387 S.E.2d 160 (1990).

The following evidence, viewed in the light most favorable to the State, supported defendant's conviction for both felony murder and armed robbery: (1) the defendant was at the scene of the crimes at the approximate time of the crimes; (2) he left a witness in a car while he entered a store; (3) he returned to car wearing a different shirt; (4) he was seen leaving the store; (5) he gave money to a witness stating he had gotten it in the store and had had to shoot someone; (6) he threatened to shoot witness if he told anyone; and (7) there had been money in the store earlier in the day. State v. Small, 328 N.C. 175, 400 S.E.2d 413 (1991).

Where evidence that defendant's conduct before the killing appeared to be that of a person "casing a job" or preparing to commit a robbery, and since he was armed, anticipating a possible homicide, and where defendant testified that he and his brother had driven to several convenience stores on the day of the robbery and shooting, that they stopped at the mart at closing time, that no other customers were in the store, and that he saw the victim follow his brother out of the store arguing with him, heard a noise, then saw the victim on the ground, and immediately left the scene it was reasonable to infer that defendant was serving as a lookout for the robbery. State v. Lane, 328 N.C. 598, 403 S.E.2d 267, cert. denied, 502 U.S. 915, 112 S. Ct. 319, 116 L. Ed. 2d 261 (1991).

Where the felony murder theory upon which the case was submitted was fully supported by the evidence, failure to submit the case on a transferred intent theory, that might also have been supported by the evidence, gave defendant no cause to complain. State v. Abraham, 338 N.C. 315, 451 S.E.2d 131 (1994).

Since the evidence supported the guilt of both defendants as to all of the felonious assaults, it made no difference which of the felonious assaults was the underlying felony, which defendant actually fired the fatal shots or whether defendants intended that the victim be killed. State v. Abraham, 338 N.C. 315, 451 S.E.2d 131 (1994).

The evidence was sufficient to support a conclusion that murder was premeditated and deliberate where defendant carried a gun readied for firing during attempted robbery, indicating he anticipated a violent confrontation and the potential need for deadly force, and there was a lack of provocation on the part of the victim. State v. Bell, 338 N.C. 363, 450 S.E.2d 710 (1994), cert. denied, 515 U.S. 1163, 115 S. Ct. 2619, 132 L. Ed. 2d 861 (1995).

Evidence that defendant intended to commit armed robbery against the victim, that in furtherance of this intent, he followed the victim outside armed with a sawed off shotgun, and that within the next two minutes defendant shot and killed the victim, was sufficient to support conviction for first degree felony murder. State v. Gillis, 158 N.C. App. 48, 580 S.E.2d 32 (2003).

Evidence which showed that defendant entered an apartment armed with a loaded shotgun, chambered a round of ammunition, verbally threatened the occupants with death, hit one of the occupants in the head to coerce surrender of his property, and shot another occupant in the head at close range while he was involved in a confrontation with another robber was sufficient to sustain the jury's verdict that the killing and robbery were part of a single transaction, and the trial court did not err when it selected attempted armed robbery as the predicate felony for felony murder, arrested only that conviction, and entered judgments convicting defendant of felony murder and three counts of armed robbery. State v. Coleman, 161 N.C. App. 224, 587 S.E.2d 889 (2003).

State presented sufficient evidence that the codefendant had constructive possession of the cocaine around the time of the shooting to find that defendant, by virtue of concert of action, committed trafficking in cocaine by possession of more than 400 grams of cocaine while also possessing a deadly weapon in violation of G.S. 90-95; when the codefendant shot the victim, the codefendant obtained dominion and control over the victim and the area around him, including the cocaine, and the codefendant's shooting of the victim within moments of the codefendant stepping into the apartment with the gun to complete the gun transaction was sufficient to convict defendant of felony murder under G.S. 14-17. State v. Herring, 176 N.C. App. 395, 626 S.E.2d 742, appeal dismissed, cert. denied, 637 S.E.2d 183 (N.C. 2006).

Evidence supported defendant's first-degree felony murder conviction on the basis of felonious child abuse, as an external examination of the victim's body revealed the presence of bruises and scratches, including unusual bruises on the buttocks that were not typical of the bruises that usually resulted from a toddler's fall and a recently inflicted blunt force injury to the victim's ribs that did not appear to have resulted from the administration of CPR. State v. Perry, 229 N.C. App. 304, 750 S.E.2d 521 (2013), review denied, 749 S.E.2d 852, 2013 N.C. LEXIS 1193 (2013).

Instruction Held Improper. - Where the evidence was sufficient to be submitted to the jury on the theory of defendant's guilt of murdering his victim in an attempt to commit the crime of rape, but was insufficient to show defendant's guilt of the crime of kidnapping, an instruction that defendant would be guilty of murder in the first degree if the jury should find that the murder was perpetrated in the attempt to commit the crime of rape of in the commission of the felony of kidnapping would be held prejudicial, as permitting the jury to rest its verdict on a theory not supported by the evidence. State v. Knight, 248 N.C. 384, 103 S.E.2d 452 (1958).

Attempted Sale of Cocaine as Underlying Felony. - Evidence was sufficient for a reasonable juror to find attempted sale of cocaine by defendant, a lesser-included offense of sale of cocaine, thus, the trial court's submission to the jury of sale of cocaine as a predicate felony to support defendant's felony murder conviction for one victim's death was not error State v. Squires, 357 N.C. 529, 591 S.E.2d 837 (2003), cert. denied, 541 U.S. 1088, 124 S. Ct. 2818, 159 L. Ed. 2d 252 (2004).

Arrested Judgment on Predicate Felonies. - Jury determined that the robbery with a dangerous weapon, larceny, and possession of stolen goods convictions served as the predicate felonies underlying defendant's conviction for first-degree felony murder, and the trial court failed to arrest judgment on the underlying felonies; the court arrested judgment on the convictions for robbery and larceny, and the possession of stolen goods conviction was vacated. State v. Stroud, 252 N.C. App. 200, 797 S.E.2d 34 (2017).

Mandatory Sentence. - Imposing a mandatory sentence of life imprisonment without the possibility of parole on defendant, who was convicted of first degree murder under the felony murder rule, violated defendant's right to be free from cruel and unusual punishment because defendant was under 18 years of age at the time he committed the offense. State v. Pemberton, 228 N.C. App. 234, 743 S.E.2d 719 (2013).

V. MURDER IN THE SECOND DEGREE.

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Common-Law Murder Is Murder in Second Degree. - By this section the crime of murder in the second degree is as at common law. State v. Smith, 221 N.C. 278, 20 S.E.2d 313 (1942).

Since the Act of 1893, the killing being proved, and nothing else appearing, the law presumes malice, but not premeditation and deliberation, and the killing is murder in the second degree. State v. Hicks, 125 N.C. 636, 34 S.E. 247 (1899).

Unless Specifically Made Murder in First Degree. - All crimes which were murder at common law remain murder in the second degree, unless otherwise made murder in the first degree under one of the specific classifications of the statutes. State v. Davis, 305 N.C. 400, 290 S.E.2d 574 (1982).

Under statutes of this description, murder in the second degree is common-law murder but the killing is not accompanied by the distinguishing features of murder in the first degree. State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1970).

Murder in the second degree is a lesser included offense of first degree murder. With the exception of the element of premeditation and deliberation, the elements of the two charges are the same and any defendant preparing a defense for first degree murder is ipso facto preparing a defense for second degree murder. State v. Goodson, 101 N.C. App. 665, 401 S.E.2d 118 (1991).

Aggravating Factor Required Additional Evidence. - G.S. 15A-1340.16(d) was not violated because the prosecution was required to prove facts for the aggravated sentences that were in addition to the elements of defendant's crimes of second degree murder and assault with a deadly weapon inflicting serious injury. State v. Borges, 183 N.C. App. 240, 644 S.E.2d 250, review denied, 361 N.C. 570, 650 S.E.2d 816 (2007).

Although second-degree murder is a lesser included offense of premeditated and deliberate first-degree murder, a trial court does not have to submit a verdict of second-degree murder to the jury unless it is supported by the evidence. State v. Annadale, 329 N.C. 557, 406 S.E.2d 837 (1991).

The essential elements of murder in the second degree are that the killing was unlawful and with malice. For these elements to be presumed present, the burden is upon the State to satisfy the jury from the evidence beyond a reasonable doubt that the defendant intentionally used a deadly weapon, as a weapon, and inflicted wounds proximately resulting in death. State v. Drake, 8 N.C. App. 214, 174 S.E.2d 132 (1970).

The law of North Carolina continues to be that the elements of malice and unlawfulness are essential to a second-degree murder conviction. Gardner v. Forister, 468 F. Supp. 761 (W.D.N.C. 1979).

Malice Is an Element of Murder in Second Degree. - An unlawful killing with malice is murder in the second degree. State v. Adams, 241 N.C. 559, 85 S.E.2d 918 (1955); State v. Mercer, 275 N.C. 108, 165 S.E.2d 328 (1969), overruled on other grounds, State v. Caddell, 287 N.C. 266, 215 S.E.2d 348 (1975); State v. Winford, 279 N.C. 58, 181 S.E.2d 423 (1971); State v. Williams, 288 N.C. 680, 220 S.E.2d 558 (1975).

Malice is always a necessary ingredient of murder. State v. Baldwin, 152 N.C. 822, 68 S.E. 148 (1910).

But Malice Aforethought Is Not Required. - The offense of murder in the second degree requires malice as an element, but not malice aforethought. State v. McGee, 47 N.C. App. 280, 267 S.E.2d 67, cert. denied, 301 N.C. 101, 273 S.E.2d 306 (1980).

The Importance of Malice in Attempted Second-Degree Murder. - Although defendant contended that attempted second-degree murder was a legal impossibility because "one cannot specifically intend a crime of general, or non-specific, intent," the court held that there are forms of second-degree murder in which the malice element contains the intent to kill, and that attempted second-degree murder, therefore, does properly exist in North Carolina. State v. Coble, 134 N.C. App. 607, 518 S.E.2d 251 (1999), appeal dismissed, cert. granted, 351 N.C. 111, 541 S.E.2d 152 (1999).

Premeditation and Deliberation Are Not Elements of Murder in the Second Degree. - Murder in the second degree is the unlawful killing of a human being with malice, but without elements of premeditation and deliberation. State v. Benson, 183 N.C. 795, 111 S.E. 869 (1922), overruled on other grounds, State v. Phillips, 264 N.C. 508, 142 S.E.2d 337 (1965); State v. Starnes, 220 N.C. 384, 17 S.E.2d 346 (1941); State v. Downey, 253 N.C. 348, 117 S.E.2d 39 (1960); State v. Kea, 256 N.C. 492, 124 S.E.2d 174 (1962); State v. Foust, 258 N.C. 453, 128 S.E.2d 889 (1963); State v. McCain, 6 N.C. App. 558, 170 S.E.2d 531 (1969); State v. Jennings, 276 N.C. 157, 171 S.E.2d 447 (1970); State v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971); State v. Cannady, 16 N.C. App. 569, 192 S.E.2d 677 (1972); State v. Fox, 18 N.C. App. 523, 197 S.E.2d 265 (1973); State v. Davis, 289 N.C. 500, 223 S.E.2d 296, death sentence vacated, 429 U.S. 809, 97 S. Ct. 47, 50 L. Ed. 2d 69 (1976); State v. McCall, 289 N.C. 512, 223 S.E.2d 303, death sentence vacated, 429 U.S. 912, 97 S. Ct. 301, 50 L. Ed. 2d 278 (1976); State v. Cousins, 289 N.C. 540, 223 S.E.2d 338 (1976); State v. Christopher, 29 N.C. App. 231, 223 S.E.2d 835 (1976); State v. Periman, 32 N.C. App. 33, 230 S.E.2d 802 (1977); State v. Jones, 291 N.C. 681, 231 S.E.2d 252 (1977); State v. Cates, 293 N.C. 462, 238 S.E.2d 465 (1977); State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978); State v. Hodges, 296 N.C. 66, 249 S.E.2d 371 (1978); State v. Fleming, 296 N.C. 559, 251 S.E.2d 430 (1979); State v. Rogers, 299 N.C. 597, 264 S.E.2d 89 (1980); State v. Brown, 300 N.C. 731, 268 S.E.2d 201 (1980); State v. Jenkins, 300 N.C. 578, 268 S.E.2d 458 (1980); State v. Mapp, 45 N.C. App. 574, 264 S.E.2d 348 (1980); State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788 (1981); State v. Simpson, 303 N.C. 439, 279 S.E.2d 542 (1981); State v. Norris, 303 N.C. 526, 279 S.E.2d 570 (1981); State v. Marshall, 304 N.C. 167, 282 S.E.2d 422 (1981); State v. Cooke, 306 N.C. 117, 291 S.E.2d 649 (1982); State v. Robbins, 309 N.C. 771, 309 S.E.2d 188 (1983); State v. Allen, 77 N.C. App. 142, 334 S.E.2d 410 (1985); State v. Head, 79 N.C. App. 1, 338 S.E.2d 908 (1986); State v. Best, 79 N.C. App. 734, 340 S.E.2d 524 (1986), overruled on other grounds, State v. Maynor, 331 N.C. 695, 417 S.E.2d 453 (1992).

The unlawful killing of a human being with malice but without premeditation and deliberation is murder in the second degree. State v. Geddie, 345 N.C. 73, 478 S.E.2d 146 (1996), cert. denied, 522 U.S. 825, 118 S. Ct. 86, 139 L. Ed. 2d 43 (1997).

Nor Is Intent to Kill. - A specific intent to kill, while a necessary constituent of the elements of premeditation and deliberation in first degree murder, is not an element of second degree murder or manslaughter. State v. Phillips, 264 N.C. 508, 142 S.E.2d 337 (1965); State v. Meadows, 272 N.C. 327, 158 S.E.2d 638 (1968); State v. Mercer, 275 N.C. 108, 165 S.E.2d 328 (1969), overruled on other grounds, State v. Caddell, 287 N.C. 266, 215 S.E.2d 348 (1975); State v. Bunn, 283 N.C. 444, 196 S.E.2d 777 (1973); State v. Williams, 288 N.C. 680, 220 S.E.2d 558 (1975); State v. Lester, 289 N.C. 239, 221 S.E.2d 268 (1976); State v. Alston, 295 N.C. 629, 247 S.E.2d 898 (1978).

For a conviction of second-degree murder the jury need not find specific intent to kill. State v. Page, 346 N.C. 689, 488 S.E.2d 225 (1997), cert. denied, 522 U.S. 1056, 118 S. Ct. 710, 139 L. Ed. 2d 651 (1998).

In a case in which defendant appealed her conviction for second-degree murder, arguing that there was insufficient evidence that she committed an intentional act aimed at harming someone and no evidence that defendant aimed the car at anyone, since the State was not required to show that defendant had a conscious, direct purpose to do specific harm or damage, or had a specific intent to kill, defendant's argument, that the evidence failed to show a specific intent to harm any particular person, was irrelevant to the court's determination of the sufficiency of the evidence of second-degree murder. State v. Neville, 202 N.C. App. 121, 688 S.E.2d 76 (2010), review denied 364 N.C. 130, 696 S.E.2d 696, 2010 N.C. LEXIS 329 (2010).

But Some Intentional Act Must Be in Chain of Causation. - The specific intent to kill is not an essential element of either second degree murder or involuntary manslaughter; however, neither crime exists in the absence of some intentional act in the chain of causation leading to death. State v. Allen, 77 N.C. App. 142, 334 S.E.2d 410 (1985), cert. denied, 316 N.C. 196, 341 S.E.2d 579 (1986).

A conviction under this section was supported by evidence that defendant and the victim were embroiled in a tempestuous relationship; that the defendant and the victim had words the night of the shooting, and she tried to leave him; that he followed her with a high-powered rifle and fired a shot at her legs to frighten her; that they returned to the house and continued arguing; that defendant then pointed the rifle at the victim or in her direction and fired; and that he realized she was hit but had not intended to kill her. State v. Lathan, 138 N.C. App. 234, 530 S.E.2d 615 (2000).

As an intent to inflict a wound which produces a homicide is an essential element of murder in the second degree. State v. Phillips, 264 N.C. 508, 142 S.E.2d 337 (1965); State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978).

State Must Prove That Defendant Intentionally Inflicted the Fatal Wound. - To convict a defendant of murder in the second degree, the State must prove that the defendant intentionally inflicted the wound which caused the death of the deceased. State v. Phillips, 264 N.C. 508, 142 S.E.2d 337 (1965).

If upon a consideration of all the testimony, including the testimony of the defendant, the jury is not satisfied beyond a reasonable doubt that the defendant intentionally killed the deceased, it should return a verdict of not guilty of murder in the second degree. State v. Phillips, 264 N.C. 508, 142 S.E.2d 337 (1965).

Defendant's Act Was a Proximate Cause of Death. - To warrant a conviction for homicide the State must establish that the act of the accused was a proximate cause of the death. State v. Jones, 290 N.C. 292, 225 S.E.2d 549 (1976).

Since proximate cause is an element of second-degree murder and manslaughter. State v. Sherrill, 28 N.C. App. 311, 220 S.E.2d 822 (1976).

But foreseeability is not an element of proximate cause in a homicide case where an intentionally inflicted wound caused the victim's death. State v. Wrenn, 279 N.C. 676, 185 S.E.2d 129 (1971).

And Culpable Negligence May Support a Conviction. - Culpable negligence from which death proximately ensues makes the actor guilty of manslaughter, and under some circumstances guilty of murder. State v. Colson, 262 N.C. 506, 138 S.E.2d 121 (1964).

If the State is unable to prove an intentional shooting, no presumption of malice arises, and thus, in order to convict defendant of unlawful homicide, the State had to satisfy the jury beyond a reasonable doubt that defendant's culpable negligence proximately caused the death of his wife. Otherwise, defendant would be entitled to an acquittal. State v. Moore, 275 N.C. 198, 166 S.E.2d 652 (1969).

Both involuntary manslaughter and second-degree murder can involve an act of "culpable negligence" that proximately causes death. Culpable negligence, standing alone, will support at most involuntary manslaughter. When, however, an act of culpable negligence also imports danger to another and is done so recklessly or wantonly as to manifest depravity of mind and disregard of human life, it will support a conviction for second-degree murder. State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978); State v. Mapp, 45 N.C. App. 574, 264 S.E.2d 348 (1980).

What Is Malice. - Malice is that condition of mind which prompts a person to take the life of another intentionally without just cause, excuse or justification. State v. Benson, 183 N.C. 795, 111 S.E. 869 (1922), overruled on other grounds, State v. Phillips, 264 N.C. 508, 142 S.E.2d 337 (1965); State v. Tilley, 18 N.C. App. 300, 196 S.E.2d 816 (1973); State v. Fleming, 296 N.C. 559, 251 S.E.2d 430 (1979); State v. Robbins, 309 N.C. 771, 309 S.E.2d 188 (1983); State v. Hamilton, 77 N.C. 506, 335 S.E.2d 506 (1985), cert. denied, 315 N.C. 593, 341 S.E.2d 33 (1986).

Malice is not only hatred, ill will, or spite, as it is ordinarily understood - to be sure that is malice - but it also means that condition of mind which prompts a person to take the life of another intentionally without just cause, excuse or justification. State v. Foust, 258 N.C. 453, 128 S.E.2d 889 (1963); State v. Moore, 275 N.C. 198, 166 S.E.2d 652 (1969); State v. Drake, 8 N.C. App. 214, 174 S.E.2d 132 (1970); State v. Patterson, 288 N.C. 553, 220 S.E.2d 600 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1211 (1976); State v. Cousins, 289 N.C. 540, 223 S.E.2d 338 (1976); State v. Cates, 293 N.C. 462, 238 S.E.2d 465 (1977); State v. Fleming, 296 N.C. 559, 251 S.E.2d 430 (1979); State v. Myers, 299 N.C. 671, 263 S.E.2d 768 (1980).

Malice exists as a matter of law whenever there has been unlawful and intentional homicide without excuse or mitigating circumstance. State v. Moore, 275 N.C. 198, 166 S.E.2d 652 (1969); State v. Patterson, 288 N.C. 553, 220 S.E.2d 600 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1211 (1976); State v. Potter, 295 N.C. 126, 244 S.E.2d 397 (1978); State v. Fleming, 296 N.C. 559, 251 S.E.2d 430 (1979).

Any act evidencing wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty and deliberately bent on mischief, though there may be no intention to injure a particular person, is sufficient to supply the malice necessary for second-degree murder. Such an act will always be accompanied by a general intent to do the act itself, but it need not be accompanied by a specific intent to accomplish any particular purpose or to do any particular thing. State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978); State v. Lang, 309 N.C. 512, 308 S.E.2d 317 (1983).

If Malice Is Shown. - Since the distinction between manslaughter and murder in the second-degree is malice, culpable negligence will not support a murder charge unless there are sufficient facts to support a finding of malice. State v. Mapp, 45 N.C. App. 574, 264 S.E.2d 348 (1980).

In a legal sense, malice is not restricted to spite or enmity toward a particular person. It also denotes a wrongful act intentionally done without just cause or excuse. State v. Jenkins, 300 N.C. 578, 268 S.E.2d 458 (1980); State v. Allen, 77 N.C. App. 142, 334 S.E.2d 410 (1985).

Malice May Be Express or Implied. - Malice as an essential characteristic of the crime of murder in the second degree may be either express or implied. State v. Foust, 258 N.C. 453, 128 S.E.2d 889 (1963).

Express Malice Is Not Required. - But it is not necessary to a conviction for murder that the State prove express malice. State v. McDowell, 145 N.C. 563, 59 S.E. 690 (1907).

Malice may be implied from the acts of defendant. State v. Mapp, 45 N.C. App. 574, 264 S.E.2d 348 (1980).

The manner of the killing by defendant, his acts and conduct attending its commission, and his declaration immediately connected therewith were evidence of express malice. State v. Faust, 254 N.C. 101, 118 S.E.2d 769, cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49 (1961).

And from Circumstances Other Than Use of Deadly Weapon. - Malice may be implied from circumstances other than the use of a deadly weapon. State v. Periman, 32 N.C. App. 33, 230 S.E.2d 802 (1977).

Malice may be shown by evidence of hatred, ill will, or dislike. State v. Foust, 258 N.C. 453, 128 S.E.2d 889 (1963).

Any unseemly conduct toward the corpse of the person slain or any indignity offered it by the slayer should go to the jury on the question of malice. State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572 (1971), death sentence vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761 (1972).

Inference of Malice from Death Ensuing from Attack Made with Hands and Feet Only. - Ordinarily if death ensues from an attack made with hands and feet only, on a person of mature years and full health and strength, the law would not imply the malice required to make the homicide second-degree murder, because ordinarily death would not be caused by the use of such means. The inference would be quite different, however, if the same assault were committed upon an infant of tender years or upon a person enfeebled by old age, sickness, or other apparent physical disability. State v. Sallie, 13 N.C. App. 499, 186 S.E.2d 667, cert. denied, 281 N.C. 316, 188 S.E.2d 900 (1972); State v. Lang, 309 N.C. 512, 308 S.E.2d 317 (1983).

Whether an attack made with hands or feet alone which proximately causes death gives rise to either a presumption of malice as a matter of law or to an inference of malice as a matter of fact will depend upon the facts of the particular case. State v. Lang, 309 N.C. 512, 308 S.E.2d 317 (1983).

The fact that a defendant struck a person with his hand or kicked a person and proximately caused that person's death would not support either a presumption of malice as a matter of law or an inference of malice as a matter of fact unless the defendant was then using his hands or feet as deadly weapons. State v. Lang, 309 N.C. 512, 308 S.E.2d 317 (1983).

Nothing else appearing, the trial court properly could instruct the jury that, should they find the defendant used his hands or feet as deadly weapons and intentionally inflicted a wound upon the deceased proximately causing his death, the law presumes that the killing was unlawful and done with malice. State v. Lang, 309 N.C. 512, 308 S.E.2d 317 (1983).

Malice Shown with Shaken Baby Syndrome. - The State presented substantial evidence that the defendant acted with malice in a prosecution for second-degree murder in the death of his two-month old son, where there was evidence of shaken child syndrome, and medical testimony also indicated that the defendant previously had inflicted a severe blow to the baby's head. State v. Qualls, 130 N.C. App. 1, 502 S.E.2d 31 (1998), aff'd, 350 N.C. 56, 510 S.E.2d 376 (1999).

Inference of Malice from Circumstances Surrounding Killing. - Malice sufficient to support a conviction of second-degree murder may be proven by inference from circumstances surrounding the killing. State v. Carroll, 85 N.C. App. 696, 355 S.E.2d 844 (1987).

Evidence that defendant, with a history of driving at speeds far in excess of speed limits, entered a sharp curve with a speed limit of 35 mph at more than 70 mph, while under the influence of alcohol, and collided head-on with a vehicle and caused the deaths of two persons supported the jury's finding of malice. State v. Rich, 132 N.C. App. 440, 512 S.E.2d 441 (1999), aff'd, 351 N.C. 386, 527 S.E.2d 299 (2000).

Evidence which showed that defendant and defendant's girlfriend had been drinking heavily before they decided to purchase more alcohol, that defendant decided to drive even though defendant's license was permanently revoked and defendant was impaired, and that defendant lost control of a car and that defendant's girlfriend died in the ensuing accident supported jury's findings that defendant's actions demonstrated malice necessary to establish second-degree murder. State v. Vassey, 154 N.C. App. 384, 572 S.E.2d 248 (2002), cert. denied, 356 N.C. 692, 579 S.E.2d 96 (2003), cert. denied, 357 N.C. 469, 587 S.E.2d 339 (2003), cert. dismissed, - N.C. - , 614 S.E.2d 921 (2005).

Defendant's conviction for second-degree murder was upheld on appeal, because defendant failed to show any prejudice with regard to the trial court's admission of a gun residue test over defendant's objection, because defendant did not object to the admission of any statements made during the test, only the test results itself, and the trial court's finding that exigent circumstances existed was supported by the evidence in that the test had to have been administered within a few hours of the shooting and defendant admitted he was one of the last to have seen the victim alive. State v. Page, 169 N.C. App. 127, 609 S.E.2d 432 (2005).

Substantial evidence existed to demonstrate the type of malice manifesting a mind utterly without regard for human life and social duty which would support a second degree murder conviction where the defendant operated his automobile with a high degree of alcohol in his blood and where, during the 16.7-mile chase, defendant ran both a stop sign and a red stop light, passing stopped traffic at speeds of 90-95 m.p.h. State v. Fuller, 138 N.C. App. 481, 531 S.E.2d 861 (2000).

Presumptions of Unlawfulness and Malice from Killing with Deadly Weapon. - When a killing resulting from the intentional use of a deadly weapon is established, two presumptions arise: (1) that the killing was unlawful, and (2) that it was done with malice. State v. Adams, 241 N.C. 559, 85 S.E.2d 918 (1955); State v. Revis, 253 N.C. 50, 116 S.E.2d 171 (1960); State v. Todd, 264 N.C. 524, 142 S.E.2d 154 (1965); State v. Propst, 274 N.C. 62, 161 S.E.2d 560 (1968); State v. Mercer, 275 N.C. 108, 165 S.E.2d 328 (1969), overruled on other grounds in State v. Caddell, 287 N.C. 266, 215 S.E.2d 348 (1975); State v. Jennings, 276 N.C. 157, 171 S.E.2d 447 (1970); State v. Drake, 8 N.C. App. 214, 174 S.E.2d 132 (1970); State v. Reams, 277 N.C. 391, 178 S.E.2d 65 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74 (1971), overruled on other grounds, State v. Worsley, 336 N.C. 268, 443 S.E.2d 68 (1994); State v. Crump, 277 N.C. 573, 178 S.E.2d 366 (1971); State v. Boyd, 278 N.C. 682, 180 S.E.2d 794 (1971); State v. Winford, 279 N.C. 58, 181 S.E.2d 423 (1971); State v. Parker, 279 N.C. 168, 181 S.E.2d 432 (1971), cert denied, 409 U.S. 987, 93 S. Ct. 342, 34 L. Ed. 2d 253 (1972); State v. McIlwain, 279 N.C. 469, 183 S.E.2d 538 (1971); State v. Wrenn, 279 N.C. 676, 185 S.E.2d 129 (1971); State v. Cannady, 17 N.C. App. 569, 192 S.E.2d 677 (1972); State v. Lea, 17 N.C. App. 71, 193 S.E.2d 383 (1972), cert. denied, 282 N.C. 674, 194 S.E.2d 154 (1973); State v. Barnwell, 17 N.C. App. 299, 194 S.E.2d 63, cert. denied, 283 N.C. 106, 194 S.E.2d 634 (1973); State v. Oxendine, 24 N.C. App. 444, 210 S.E.2d 908, cert. denied, 287 N.C. 667, 216 S.E.2d 910 (1975); State v. Bush, 289 N.C. 159, 221 S.E.2d 333, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976); State v. McCall, 289 N.C. 512, 223 S.E.2d 303, death sentence vacated, 429 U.S. 912, 97 S. Ct. 301, 50 L. Ed. 2d 278 (1976); State v. Chavis, 30 N.C. App. 75, 226 S.E.2d 389, cert. denied, 290 N.C. 778, 229 S.E.2d 33 (1976); State v. Lee, 292 N.C. 617, 234 S.E.2d 574 (1977); State v. Myers, 299 N.C. 671, 263 S.E.2d 768 (1980); State v. Lang, 309 N.C. 512, 308 S.E.2d 317 (1983); State v. Robbins, 309 N.C. 771, 309 S.E.2d 188 (1983).

Intentional killing of a human being with a deadly weapon implies malice. State v. McDowell, 145 N.C. 563, 59 S.E. 690 (1907); State v. Brinkley, 183 N.C. 720, 110 S.E. 783 (1922); State v. Pasour, 183 N.C. 793, 111 S.E. 779 (1922); State v. Payne, 213 N.C. 719, 197 S.E. 573 (1938); State v. Hawkins, 214 N.C. 326, 199 S.E. 284 (1938); State v. Bright, 215 N.C. 537, 2 S.E.2d 541 (1939); State v. Chavis, 231 N.C. 307, 56 S.E.2d 678 (1949); State v. Lamm, 232 N.C. 402, 61 S.E.2d 188 (1950); State v. Brown, 249 N.C. 271, 106 S.E.2d 232 (1958); State v. Downey, 253 N.C. 348, 117 S.E.2d 39 (1960); State v. Faust, 254 N.C. 101, 118 S.E.2d 769, cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49 (1961); State v. Foust, 258 N.C. 453, 128 S.E.2d 889 (1963); State v. McCain, 6 N.C. App. 558, 170 S.E.2d 531 (1969); State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788 (1981).

At common law, the intentional killing of a human being with a deadly weapon, nothing more appearing, was murder, malice being presumed from the facts. State v. Rhyne, 124 N.C. 847, 33 S.E. 128 (1899).

The common-law rule has been followed and it is now also presumed that a killing with a deadly weapon is unlawful and malicious. State v. Benson, 183 N.C. 795, 111 S.E. 869 (1922), overruled on other grounds, State v. Phillips, 264 N.C. 508, 142 S.E.2d 337 (1965); State v. Walker, 193 N.C. 489, 137 S.E. 429 (1927).

A presumption of malice arises when one intentionally assaults another with a deadly weapon and thereby proximately causes his death. State v. Goins, 24 N.C. App. 468, 211 S.E.2d 481, cert. denied, 287 N.C. 262, 214 S.E.2d 434 (1975).

For Such Presumptions to Apply Intent Must Be Shown. - The presumptions that a homicide was unlawful and done with malice do not arise against the slayer in a prosecution for homicide, unless he admits, or the State proves, that he intentionally killed the deceased with a deadly weapon. State v. Phillips, 264 N.C. 508, 142 S.E.2d 337 (1965).

For the presumptions of malice and unlawfulness to arise from a killing with a deadly weapon, the defendant must admit or the State must prove beyond a reasonable doubt that the killing was intentional. State v. Barnwell, 17 N.C. App. 299, 194 S.E.2d 63, cert. denied, 283 N.C. 106, 194 S.E.2d 634 (1973).

But Intent Need Not Be to Kill. - The expression "intentional killing" is not used in the sense that a specific intent to kill must be admitted or established. The sense of the expression is that the presumptions arise when the defendant intentionally assaults another with a deadly weapon and thereby proximately causes the death of the person assaulted. State v. Phillips, 264 N.C. 508, 142 S.E.2d 337 (1965).

Intent Must Be to Use Deadly Weapon as a Weapon. - The intentional use of a deadly weapon as a weapon is necessary to give rise to presumptions of unlawfulness and of malice. State v. Propst, 274 N.C. 62, 161 S.E.2d 560 (1968).

It is error for the trial court to instruct the jury that once a killing is proven to have been done with a deadly weapon the law presumes malice, since in order for a presumption of malice to arise, it has to be established or admitted that the defendant intentionally used a deadly weapon as a weapon and inflicted wounds proximately resulting in death. State v. Drake, 8 N.C. App. 214, 174 S.E.2d 132 (1970).

The intentional use of a deadly weapon as a weapon, when death proximately results from such use, gives rise to the presumptions. The presumptions do not arise if an instrument, which is or may be a deadly weapon, is not intentionally used as a weapon, e.g., from an accidental discharge of a shotgun. State v. Winford, 279 N.C. 58, 181 S.E.2d 423 (1971); State v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971).

Intent to Inflict a Wound. - Malice, as one of the essential elements of murder in the second degree, is not presumed merely by the pointing of a gun or pistol at another person in fun in violation of G.S. 14-34. In order for this presumption of malice to arise from an assault with a deadly weapon, there must be an intent to inflict a wound with such weapon which produces death. State v. Currie, 7 N.C. App. 439, 173 S.E.2d 49 (1970).

Felonious Intent to Commit Second-Degree Murder Is Logical Impossibility. - The trial judge erroneously submitted second-degree murder as the intended felony for first-degree burglary; because second-degree murder does not involve the intent to kill, it cannot serve as the felonious intent element for purposes of burglary. Just as attempted second-degree murder is a logical impossibility, so too is the felonious intent to commit second-degree murder. State v. Van Jordan, 140 N.C. App. 594, 537 S.E.2d 843 (2000).

Effect of Mental Illness and Alcoholism on Presumption of Malice. - In a second degree murder case, evidence of a defendant's mental illness and alcoholism will not rebut the presumption of malice where the killing was accomplished by the intentional use of a deadly weapon so as to entitle defendant to a jury instruction on the lesser-included offense of voluntary manslaughter. State v. Adams, 85 N.C. App. 200, 354 S.E.2d 338 (1987).

Diminished Capacity Irrelevant. - Trial court properly refused to instruct jury to consider diminished capacity when it deliberated whether to convict defendant of second-degree murder. State v. Page, 346 N.C. 689, 488 S.E.2d 225 (1997), cert. denied, 522 U.S. 1056, 118 S. Ct. 710, 139 L. Ed. 2d 651 (1998).

Instruction Warranted. - Where defendant had been drinking heavily and smoking crack cocaine for several hours, it was possible for a trier of fact to find that he lacked the requisite state of mind - that is, the necessary specific intent of premeditation and deliberation - for first degree murder, and the trial court's instruction of second degree murder was, therefore, proper. State v. Brooks, 136 N.C. App. 124, 523 S.E.2d 704 (1999), cert. denied, 351 N.C. 475, 543 S.E.2d 496 (2000).

Error in Instructing on Presumption of Malice Absent Use of Deadly Weapon. - The trial court in a homicide prosecution erred in instructing the jury to presume the existence of malice if they found that the victim's death was intentionally caused where there was no evidence of the use of a deadly weapon, since malice is presumed only where death resulted from the intentional use of a deadly weapon. State v. Tilley, 18 N.C. App. 300, 196 S.E.2d 816 (1973). But see State v. Lang, 309 N.C. 512, 308 S.E.2d 317 (1983) as to use of hands and feet as deadly weapons.

Error in Instructing on Presumption of Malice. - In light of the fact that the trial court (1) repeatedly instructed the jury that they had to find that the defendant acted with malice in order to find him guilty of second-degree murder, and (2) instructed the jury that if the State failed to prove the defendant acted with malice, then the defendant could be guilty of no more than voluntary manslaughter, the court's misstatement in the final mandate that second-degree murder was killing without malice did not constitute plain error. State v. Jones, 83 N.C. App. 593, 351 S.E.2d 122 (1986), cert. denied, 319 N.C. 461, 356 S.E.2d 9 (1987).

Instruction as to Presumptions of Malice and Unlawfulness Shifts Burden of Production to Defendant. - Instruction that if the State proved beyond a reasonable doubt that the defendant intentionally killed victim with a deadly weapon, or that he intentionally inflicted a wound upon her with a deadly weapon that proximately caused her death, then the law implied, first, that the killing was unlawful, and secondly, that it was done with malice, did not impermissibly shift the burden of proof to defendant but merely shifted the burden of production. And a state may legitimately shift a burden of production on an element of the crime to the defendant, so long as the presumed fact is rationally connected to a proven fact. Rook v. Rice, 783 F.2d 401 (4th Cir.), cert. denied, 478 U.S. 1022, 106 S. Ct. 3315, 92 L. Ed. 2d 745 (1986).

Jury Instruction Regarding "Bent on Mischief." - The portion of a jury instruction defining "deliberately bent on mischief" correctly conveyed to the jury that it could infer malice if it found that defendant's acts manifested depravity of mind and disregard of human life. State v. Rich, 132 N.C. App. 440, 512 S.E.2d 441 (1999), aff'd, 351 N.C. 386, 527 S.E.2d 299 (2000).

No Evidence to Warrant Instruction on Second-Degree Murder. - Where the jury returned a verdict that defendant was guilty of first-degree murder under the felony-murder rule and not of premeditated and deliberated murder, no evidence in the record warranted submission of an instruction on second-degree murder. State v. Oliver, 334 N.C. 513, 434 S.E.2d 202 (1993).

Because defendant did not provide evidence negating premeditation and deliberation other than his denial that he committed the offense, defendant was not entitled to an instruction on second-degree murder. State v. Broom, 225 N.C. App. 137, 736 S.E.2d 802 (2013).

Jury Question Warranted. - Sufficient evidence was found to allow the issue of defendant's guilt of second-degree murder to be submitted to the jury. State v. Hester, 111 N.C. App. 110, 432 S.E.2d 171 (1993).

Trial court did not err in submitting the second-degree murder charge to the jury as substantial evidence supported the element of malice by reckless disregard for human life because defendant was driving while his license was revoked both for prior DWI and non-DWI offenses; defendant was driving at a speed that was irresponsible late at night when the road conditions were icy; defendant lost control of his vehicle and hit the guard rail, the tow truck, and the victim; and the collision was so severe that it ripped the front bumper from his car, cracked the windshield, broke the headlights, and deployed the airbags, but defendant did not try to ascertain if anyone was harmed or attempt to render assistance of any sort. State v. Nazzal, - N.C. App. - , 840 S.E.2d 881 (2020).

Constitutionality of Presumptions of Malice and Unlawfulness. - Under the decision of Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975), the due process clause of U.S. Const., Amend. XIV prohibits the use of our long-standing rules in homicide cases that, in order to rebut the presumption of malice, defendant must prove to the satisfaction of the jury that he killed in the heat of a sudden passion, and that in order to rebut the presumption of unlawfulness, defendant must prove to the satisfaction of the jury that he killed in self-defense. State v. Hankerson, 288 N.C. 632, 220 S.E.2d 575 (1975), rev'd on other grounds, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 306 (1977).

The Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975) decision does not preclude use of the presumptions of malice and unlawfulness upon proof beyond a reasonable doubt of a killing by the intentional use of a deadly weapon; nor does it prohibit making the presumptions mandatory in the absence of contrary evidence or permitting the logical inferences from facts proved to remain and be weighed against contrary evidence if it is produced. State v. Hankerson, 288 N.C. 632, 220 S.E.2d 575 (1975), rev'd on other grounds, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 306 (1977).

The presumptions of unlawfulness and malice arising from an intentional assault with a deadly weapon proximately resulting in death are constitutional. State v. Lester, 289 N.C. 239, 221 S.E.2d 268 (1976); State v. Biggs, 292 N.C. 328, 233 S.E.2d 512 (1977).

Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975) does not apply to the presumption of malice created when the State proves beyond a reasonable doubt that the accused intentionally inflicted a wound with a deadly weapon proximately causing death. State v. Johnson, 28 N.C. App. 265, 220 S.E.2d 834, cert. denied, 289 N.C. 454, 223 S.E.2d 162 (1976).

The ruling of Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975) does not preclude all use of traditional presumptions of malice and unlawfulness. It precludes only utilizing them in such a way as to relieve the State of the burden of proof on these elements when the issue of their existence is raised by the evidence. The presumptions themselves, standing alone, are valid and constitutional. State v. Biggs, 292 N.C. 328, 233 S.E.2d 512 (1977).

Requiring defendant to rebut the presumption of malice flowing from state's proof of the intentional infliction of a wound upon the deceased with a deadly weapon, proximately resulting in death, does not violate Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975), since the presumption persists only in the absence of evidence to the contrary, and evidence raising an issue on the existence of malice and unlawfulness causes the presumption to disappear, leaving only a permissible inference which the jury may accept or reject. State v. Weeks, 322 N.C. 152, 367 S.E.2d 895 (1988).

Such Presumptions Are Mandatory. - In a homicide case, in the absence of evidence of a killing in the heat of passion and the absence of evidence of self-defense, proof of the intentional infliction of a wound raises not mere permissible inferences but mandatory presumptions of the existence of malice and unlawfulness entitling the State at least to a conviction of murder in the second degree. State v. Patterson, 297 N.C. 247, 254 S.E.2d 604 (1979).

But Not Irrebuttable. - An instruction to the jury that the law implies malice and unlawfulness from the intentional use of a deadly weapon proximately resulting in death is not a conclusive, irrebuttable presumption. The presumption is mandatory in that defendant, to avoid its effect, must produce some evidence raising an issue on the existence of malice and unlawfulness or rely on such evidence as the State may have adduced. In the presence of evidence raising such issues, the presumption disappears altogether, leaving only a permissible inference which the jury may accept or reject. State v. Reynolds, 307 N.C. 184, 297 S.E.2d 532 (1982).

Where all the evidence tends to show that defendant intentionally inflicted a wound with a deadly weapon which caused deceased's death, such evidence raises inferences of an unlawful killing with malice which are sufficient to permit, but not require, the jury to return a verdict of murder in the second degree. State v. Hodges, 296 N.C. 66, 249 S.E.2d 371 (1978).

Presumption of Malice Disappears Where Evidence Shows Self-Defense or Provocation. - When there is some evidence justifying an instruction concerning self-defense or heat of passion killing upon sudden provocation, any presumption of malice arising from a finding that defendant intentionally inflicted the wounds with a deadly weapon disappears, leaving only a permissible inference which the jury may accept or reject. State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983).

Whether there is evidence in the case from which a jury could find a killing in the heat of passion or self-defense so that the mandatory presumptions are transformed into permissible inferences depends largely on the quantum of the evidence rather than its quality or credibility. This is a question for the court, not the jury. No instructions on this principle should be given to the jury. State v. Patterson, 297 N.C. 247, 254 S.E.2d 604 (1979).

Where defendant produced evidence from which the jury could have found that he killed in the heat of passion suddenly aroused or that he killed in self-defense, the State was not entitled to the benefit of mandatory presumptions of malice and unlawfulness. It was entitled at most to the benefit of permissible inferences that these elements existed if the jury should find it had proved beyond a reasonable doubt defendant's intentional infliction of a wound with a deadly weapon resulting in death. These permissible inferences placed no burden upon defendant to rebut them by raising a reasonable doubt as to the existence of the inferred elements. It was error to so instruct the jury. State v. Patterson, 297 N.C. 247, 254 S.E.2d 604 (1979); State v. Lang, 309 N.C. 512, 308 S.E.2d 317 (1983).

But Logical Inferences May Be Weighed Against the Evidence. - If there is evidence of provocation or self-defense, the mandatory presumptions of malice and unlawfulness disappear, but the logical inferences from the facts proved may be weighed against the evidence. State v. Hankerson, 288 N.C. 632, 220 S.E.2d 575 (1975), rev'd on other grounds, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 306 (1977); State v. McLaurin, 46 N.C. App. 746, 266 S.E.2d 406 (1980).

Evidence of self-defense or of killing in a heat of passion upon sudden provocation are matters of excuse and mitigation, which should be weighed against the raised inferences of unlawfulness and malice. State v. Hodges, 296 N.C. 66, 249 S.E.2d 371 (1978).

Instruction as to Presumptions Absent Evidence of Passion, Provocation, or Self-Defense. - If, after the mandatory presumptions as to the unlawfulness of the killing and as to malice arise, there is no evidence that the killing was in the heat of passion on sudden provocation or in self-defense, the law requires that the jury be instructed that the defendant must be convicted of murder in the second degree. State v. Lang, 309 N.C. 512, 308 S.E.2d 317 (1983).

Self-Serving Declarations Not Sufficient to Rebut Presumption. - In prosecution for second-degree murder, where there was no evidence of just cause or reasonable provocation nor evidence of self-defense, unavoidable accident or misadventure, defendant's self-serving declarations alone were not sufficient to rebut the presumption of malice arising in the case. State v. Mull, 24 N.C. App. 502, 211 S.E.2d 515 (1975).

State's Burden of Proof. - In offering evidence of "all other kinds of murder" as that phrase is employed in the second sentence of this section, the State must bear the burden of proving that the killing was intentional, unlawful and done with malice aforethought, even though it may have been proximately caused by the unlawful distribution of controlled substances or proximately caused by the commission or the attempted commission of any felony not specified in the first sentence of this section and without the use of a deadly weapon. State v. Davis, 305 N.C. 400, 290 S.E.2d 574 (1982).

If the State is to carry its burden of proof on a charge of murder in cases in which a killing occurs during the commission of a felony committed or attempted without the use of a deadly weapon and not one of the felonies specified in this section, it must show that the killing was murder as at common law by proof beyond a reasonable doubt that it was an intentional and unlawful killing with malice aforethought. In such cases the State will have borne the burden of proof necessary to sustain a conviction of murder in the second degree. If the State additionally can prove beyond a reasonable doubt that the murder was premeditated and deliberate, it will have borne its burden of proving the offense was murder in the first degree. State v. Davis, 305 N.C. 400, 290 S.E.2d 574 (1982).

In a prosecution for unlawful homicide, the burden is always upon the State to prove an unlawful slaying. State v. Moore, 275 N.C. 198, 166 S.E.2d 652 (1969).

State Must Prove Each Element of the Crime. - The State must bear the burden throughout the trial of proving each element of the crime charged, including, where applicable, malice and unlawfulness beyond a reasonable doubt. State v. Hankerson, 288 N.C. 632, 220 S.E.2d 575 (1975), rev'd on other grounds, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 306 (1977).

But the State is not required to prove malice and unlawfulness unless there is some evidence of their nonexistence. State v. Pinch, 306 N.C. 1, 292 S.E.2d 203 (1982), cert. denied, 459 U.S. 1056, 103 S. Ct. 474, 74 L. Ed. 2d 622 (1983), overruled on other grounds, State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988), State v. Robinson, 336 N.C. 78, 443 S.E.2d 306 (1994), cert. denied, 115 S. Ct. 750, 130 L. Ed. 2d 650 (1995), State v. Rouse, 339 N.C. 59, 451 S.E.2d 543 (1994), cert. denied, 516 U.S. 832, 116 S. Ct. 107, 133 L. Ed. 2d 60 (1995), overruled in part on other grounds by State v. Hurst, 360 N.C. 181, 624 S.E.2d 309 (2006).

State need not prove malice and unlawfulness unless there is some evidence of their nonexistence, but once such evidence is presented, the State must prove these elements beyond a reasonable doubt. State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983).

Such as Heat of Passion. - When there is some evidence of heat of passion on sudden provocation, which negates malice, then in order to prove the existence of malice the State must prove the absence of heat of passion beyond a reasonable doubt. State v. Bush, 307 N.C. 152, 297 S.E.2d 563 (1982).

Defendant's Burden Is to Produce Some Evidence of Their Nonexistence. - In a murder prosecution, defendant has no burden to produce evidence sufficient to raise a reasonable doubt as to the existence of malice or unlawfulness. His burden is simply to produce some evidence from which a jury could find the nonexistence of these elements, i.e., to produce some evidence of a killing in the heat of passion or some evidence of self-defense from which a jury could find the existence of these things. Upon production of such evidence, the burden is upon the State to prove beyond a reasonable doubt the existence of malice and the absence of self defense. State v. Patterson, 297 N.C. 247, 254 S.E.2d 604 (1979).

As Defendant Has No Burden to Raise Reasonable Doubt. - The question whether evidence is sufficient to raise a reasonable doubt is always for the jury under proper instructions from the court. The instructions should, however, be put in terms of the State's burden to prove every element beyond a reasonable doubt, not defendant's burden to raise a reasonable doubt, since defendant has no such burden. State v. Patterson, 297 N.C. 247, 254 S.E.2d 604 (1979).

Instructions Placing Burden on Defendant to Prove Lesser Offense or Justification Are Improper. - Instructions placing the burden on defendant (1) to show circumstances that would reduce the offense from second-degree murder to manslaughter and (2) to justify the killing on ground of self-defense were erroneous in view of Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975), and State v. Hankerson, 288 N.C. 632, 220 S.E.2d 575 (1975), rev'd on other grounds, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 306 (1977); State v. McLaurin, 33 N.C. App. 589, 235 S.E.2d 871 (1977).

An instruction placing the burden on petitioner to satisfy the jury of the absence of malice, or that the killing was committed in self-defense, is constitutional error unless the court should find that there was no evidence to support verdicts of either manslaughter or not guilty, or the instruction was otherwise harmless error beyond a reasonable doubt. Gardner v. Forister, 468 F. Supp. 761 (W.D.N.C. 1979).

Murder in Second Degree Is Included in Murder in First Degree. - If a person is found guilty of murder in the first degree, a fortiori, his guilt encompasses murder in the second degree. State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1970).

Manslaughter is a lesser included offense of murder in the second degree. State v. Holcomb, 295 N.C. 608, 247 S.E.2d 888 (1978).

Murder in Second Degree and Manslaughter Distinguished. - The difference between second-degree murder and manslaughter is that malice, express or implied, is present in the former and not in the latter. State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978); State v. Mapp, 45 N.C. App. 574, 264 S.E.2d 348 (1980).

In order for an accused to reduce the crime of second-degree murder to voluntary manslaughter, he must rely on evidence presented by the State or assume a burden to go forward with or produce evidence of heat of passion on sudden provocation. State v. Adams, 85 N.C. App. 200, 354 S.E.2d 338 (1987).

Reduction to Manslaughter for Killing in Heat of Passion on Adequate Provocation. - The crime of second degree murder may be reduced to voluntary manslaughter upon a showing that defendant killed his victim in the heat of passion caused by provocation adequate to negate the element of malice. State v. Best, 79 N.C. App. 734, 340 S.E.2d 524 (1986), overruled on other grounds, State v. Maynor, 331 N.C. 695, 417 S.E.2d 453 (1992).

Reduction to Manslaughter Where Self-Defense Is Used. - Second degree murder may be reduced to voluntary manslaughter if the killing results from the use of excessive force in the exercise of self-defense. State v. Best, 79 N.C. App. 734, 340 S.E.2d 524 (1986), overruled on other grounds, State v. Maynor, 331 N.C. 695, 417 S.E.2d 453 (1992).

What Is Excessive Force in Exercise of Self-Defense. - Excessive force in the exercise of self-defense is that force used by a defendant who honestly believes that he must use deadly force to repel an attack, but whose belief is found by the jury to be unreasonable under the surrounding facts and circumstances. State v. Best, 79 N.C. App. 734, 340 S.E.2d 524 (1986), overruled on other grounds, State v. Maynor, 331 N.C. 695, 417 S.E.2d 453 (1992).

Premeditation Negated Second Degree Murder Instruction. - As the record contained no evidence tending to show any provocation of defendant by the victim and defendant used the same ruse for the purpose of distracting another victim prior to shooting them, the evidence supported a finding of premeditation and deliberation and did not support an inference that defendant formed the intent to kill the victim at the same time that he shot him; thus, defendant was not entitled to a jury instruction as to second degree murder. State v. Wiggins, 210 N.C. App. 128, 707 S.E.2d 664 (2011), review denied, 707 S.E.2d 242, 2011 N.C. LEXIS 263 (2011).

Sentencing. - Murder in the second degree is a Class C felony and therefore the judge sentencing a defendant who is adjudged guilty of this crime must impose a 15-year term of imprisonment unless aggravating or mitigating factors merit imposition of a longer or shorter term. State v. Melton, 307 N.C. 370, 298 S.E.2d 673 (1983).

Defendant's aggravated sentence for second degree murder did not violated the ex post facto clauses in N.C. Const., Art. 1, § 16 and U.S. Const., Art. 1, § 10, because the trial court had the authority to use a special verdict for the jury to determine aggravating factors at the time of defendant's trial. State v. Borges, 183 N.C. App. 240, 644 S.E.2d 250, review denied, 361 N.C. 570, 650 S.E.2d 816 (2007).

No prejudicial error resulted from defendant's resentencing, in light of Blackwell, as a procedural mechanism existed by which to submit the aggravating factors to the jury, and there was overwhelming and uncontradicted evidence that defendant joined with more than one other person in the commission of the second-degree murder of the victim. State v. Harris, 185 N.C. App. 285, 648 S.E.2d 218 (2007), review denied, 362 N.C. 89, 656 S.E.2d 592 (2007.

When defendant had been sentenced to life in prison, pursuant to the Fair Sentencing Act (FSA), G.S. 14-1.1, G.S. 15A-1340.4(f) (repealed) and former G.S. 14-17, after pleading guilty to second degree murder, it was error to grant defendant's motion for appropriate relief seeking sentencing pursuant to the Structured Sentencing Act (SSA), G.S. 15A-1340.10 et seq., because (1) the FSA exclusively controlled sentencing for defendant's crime, since the crime was committed before the effective date of the SSA, (2) the SSA said the SSA did not affect sentences for crimes occurring before the SSA's effective date and that statutes applied to pre-SSA sentences still applied to those sentences, and (3) an assistant district attorney's consent to defendant's sentence's modification did not render defendant's illegal sentence unappealable. State v. Whitehead, 365 N.C. 444, 722 S.E.2d 492 (2012).

As the trial court sentenced defendant on her conviction for second-degree murder within the presumptive range for her conviction of a Class B2 felony pursuant to G.S. 15A-1340.17(c) and G.S. 14-17, there was no error in sentencing defendant, as the trial court was not required to make findings of mitigating factors pursuant to G.S. 15A-1340.16(c). State v. Kelly, 221 N.C. App. 643, 727 S.E.2d 912 (2012).

After the jury returned a general verdict finding defendant guilty of second-degree murder, the trial judge did not err in sentencing defendant as a Class B1 felon as there was simply no evidence that supported a finding of depraved-heart malice because no evidence was presented that defendant intended to kill someone other than the victim but slashed his neck by accident as the repeated knife cuts were deliberately aimed at the victim's neck; defendant never specifically rebutted the theory of deadly weapon implied malice or advanced a depraved-heart malice theory argument; and the evidence presented supported only B1 theories of malice, and the jury was properly instructed only on those theories. State v. Lail, 251 N.C. App. 463, 795 S.E.2d 401 (2016), mot. dismissed, 797 S.E.2d 7, 2017 N.C. LEXIS 159 (2017); review denied, 796 S.E.2d 927, 2017 N.C. LEXIS 162 (2017).

Plain language of this statute that persons convicted of second-degree murder "shall be punished as a Class B1 felon, except," indicates that the legislature intended to increase the sentence for second-degree murder to Class B1 and to retain Class B2 punishment only where either statutorily defined situation exists. Where no evidence is presented that would support a finding that an accused acted with depraved-heart malice, specification of a malice theory would not provide clarity for sentencing purposes as it would be inferred from a general verdict that the accused was guilty of B1 second-degree murder; thus, this statute does not always require a jury to specify whether the depraved-heart malice theory supported its conviction. State v. Lail, 251 N.C. App. 463, 795 S.E.2d 401 (2016), mot. dismissed, 797 S.E.2d 7, 2017 N.C. LEXIS 159 (2017); review denied, 796 S.E.2d 927, 2017 N.C. LEXIS 162 (2017).

Court of appeals erred in holding that defendant's stipulation on his sentencing worksheet that a second-degree murder conviction justified a B1 classification was improper because defendant properly stipulated to the facts underlying his conviction and the conviction itself; defendant simply agreed that the facts underlying his second-degree murder conviction fell within the general B1 category, and his factual stipulation then allowed the trial court to properly classify the offense as B1. State v. Arrington, 371 N.C. 518, 819 S.E.2d 329 (2018).

Given the consistent definition of second-degree murder and the 2012 amendments, the statute indicates the legislature's intent to elevate second-degree murder to a B1 offense, except in the two limited factual scenarios when the second-degree murder stems from either an inherently dangerous act or omission or a drug overdose; the legislature distinguishes between second-degree murders that involve an intent to harm versus the less culpable ones that involve recklessness or a drug overdose. State v. Arrington, 371 N.C. 518, 819 S.E.2d 329 (2018).

Sentencing - Premeditation and Deliberation as Aggravating Factor. - The trial court properly used and found ample evidence of premeditation and deliberation as an aggravating factor in second degree murder plan. State v. Brewer, 321 N.C. 284, 362 S.E.2d 261 (1987).

Where a defendant tried for murder in the first degree is found guilty of murder in the second degree, trial court may not find by the preponderance of the evidence that the killing was after premeditation and deliberation and use this finding as an aggravating factor. State v. Marley, 321 N.C. 415, 364 S.E.2d 133 (1988).

A trial judge can find as an aggravating factor that the killing was done with premeditation and deliberation when a defendant charged with first degree murder pleads guilty to second degree murder. State v. Marley, 321 N.C. 415, 364 S.E.2d 133 (1988).

Where a defendant is convicted on an indictment charging only second degree murder, a determination by the preponderance of the evidence that defendant premeditated and deliberated the killing is reasonably related to the purposes of sentencing. Therefore, a sentencing judge is not barred from using premeditation and deliberation as an aggravating factor in such a case. State v. Vandiver, 326 N.C. 348, 389 S.E.2d 30 (1990).

Supplying Drugs Known to Be Dangerous. - Evidence which tended to show that defendant supplied drugs to the victim with the knowledge that the drugs were inherently dangerous due to the fact that two other people had become violently ill after using the drugs in defendant's presence, was sufficient to establish "a wrongful act intentionally done without just cause or excuse" and, therefore, the jury could have reasonably inferred that the defendant acted with malice necessary for a conviction of second-degree murder. State v. Liner, 98 N.C. App. 600, 391 S.E.2d 820 (1990).

Submission of second-degree murder as possible jury verdict during trial on charge of first-degree murder was not error where witness' testimony that defendant was in the back seat holding the victim down while the other defendant pommeled her and then confronted her with a knife, in conjunction with testimony that the victim's inert body was then dragged to the side of the road, permits an inference beyond any reasonable doubt that defendant acted with malice and in concert in the unlawful killing of the victim. State v. Goodson, 101 N.C. App. 665, 401 S.E.2d 118 (1991).

Course of Conduct. - Where the offenses of first-degree murder and assault with a deadly weapon were joined offenses for which defendant was convicted contemporaneously with his conviction for second-degree murder, a Class C felony covered by the Fair Sentencing Act, finding these offenses to have established a "course of conduct" in aggravation of second-degree murder, violated the prohibition of such factors in State v. Westmoreland, 314 N.C. 442, 334 S.E.2d 223 (1985); therefore, defendant was entitled to resentencing in the second-degree murder case, where the "course of conduct" aggravating factor would not be considered. State v. Terry, 337 N.C. 615, 447 S.E.2d 720 (1994).

The evidence was insufficient to support the defendant's conviction of second degree murder for shaking his girlfriend's baby where the doctor testified that the victim died from shaken baby syndrome, which he said was caused by more than a light shaking; the defendant did not mention shaking the child at the first interview with police, but only after the results of the autopsy were made known to him, at which time he said he "became frustrated and started shaking [the baby]" but did not "realize that he was shaking her that hard" and that he did not mean to hurt her. Many small blood vessels on the surface of the victim's brain were torn and bleeding, but larger vessels were not torn and there were no other internal or external injuries to the victim's body, her ribs were not bruised or fractured, and there were no external head injuries and the skull was not fractured. State v. Blue, 138 N.C. App. 404, 531 S.E.2d 267 (2000), aff'd in part, rev'd in part on other grounds, and remanded, 353 N.C. 364, 543 S.E.2d 478 (2001).

Evidence Held Sufficient. - The intentional use of a deadly weapon as a weapon, when death proximately results from such use, gives rise to the presumptions that the killing was unlawful and done with malice, and such unlawful killing with malice was murder in the second degree, where all the evidence tended to show that defendant stubbornly continued over a period of hours to curse the deceased and to assault his helpless victim time after time with various deadly weapons while a witness was begging him to cease and desist, and that by these persistent assaults without the slightest provocation he inflicted mortal wounds proximately causing the death of his victim. This evidence afforded no basis upon which defendant could be found guilty of manslaughter. State v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971).

The evidence was sufficient to be submitted to the jury in a second-degree murder prosecution where it tended to show that the defendant and the deceased were imprisoned in the same prison unit, and that a prison guard saw them arguing and broke them up, that later the guard saw defendant approach deceased who was lying on his bunk and make a striking movement toward the deceased's body, that although the guard saw no knife or other weapon in defendant's hand, a small knife was later discovered in a heater and that deceased had died from a stab wound to the chest. State v. Mull, 24 N.C. App. 502, 211 S.E.2d 515 (1975).

The State's evidence was sufficient to support defendant's conviction of second-degree murder where it tended to show that the victim entered a car occupied by defendant and defendant's companion in order to sell defendant a stolen M-16 rifle; the victim was seated in the front seat and defendant was seated in the back seat; defendant told the victim he had to pick up the money for the rifle at a friend's house; as the car was being driven by defendant's companion, defendant shot the victim in the head with a pistol which belonged to the girlfriend of the defendant's companion; defendant threatened to shoot his companion unless he followed defendant's orders, whereupon the companion assisted defendant in burying the body, and a search of the residence of defendant and his companion uncovered the M-16 rifle. State v. Fletcher, 301 N.C. 709, 272 S.E.2d 859 (1981).

The State's evidence was sufficient to support convictions of defendants for second-degree murder where it tended to show that the victim, a State's witness, and another person were standing in the front yard of the witness's house at 4:00 A.M.; the witness heard a vehicle approaching the house, and heard one defendant screaming at him; the witness saw such defendant driving a pickup truck on the road in front of the house and saw the second defendant firing a gun from the back of the pickup; after passing the house, the pickup turned around and drove by the house again, at which time the second defendant fired several more shots; and the victim sustained a gunshot wound in the neck and died as a result thereof. State v. Spicer, 50 N.C. App. 214, 273 S.E.2d 521, appeal dismissed, 302 N.C. 401, 279 S.E.2d 356 (1981).

For additional cases in which evidence of second-degree murder was held sufficient, see State v. Casper, 256 N.C. 99, 122 S.E.2d 805 (1961), cert. denied, 376 U.S. 927, 84 S. Ct. 691, 11 L. Ed. 2d 622 (1964); State v. McCain, 6 N.C. App. 558, 170 S.E.2d 531 (1969); State v. Moore, 46 N.C. App. 563, 265 S.E.2d 421, cert. denied, 301 N.C. 103, 273 S.E.2d 308 (1980); State v. Farris, 93 N.C. App. 757, 379 S.E.2d 283 (1989), discretionary review improvidently allowed, 326 N.C. 45, 387 S.E.2d 54 (1990).

Evidence held sufficient to support a verdict of guilty of second-degree murder. State v. Blake, 83 N.C. App. 77, 349 S.E.2d 78 (1986), cert. denied as to additional issues, 318 N.C. 697, 351 S.E.2d 751, aff'd, 319 N.C. 599, 356 S.E.2d 352 (1987); State v. Adams, 85 N.C. App. 200, 354 S.E.2d 338 (1987); State v. Blake, 319 N.C. 599, 356 S.E.2d 352 (1987); State v. Hemphill, 104 N.C. App. 431, 409 S.E.2d 744 (1991).

Evidence was clearly sufficient to show that the defendant, whether acting alone or together with a codefendant pursuant to a common purpose, committed the crimes of second-degree murder and armed robbery against the victim. State v. Giles, 83 N.C. App. 487, 350 S.E.2d 868 (1986), cert. denied, 319 N.C. 460, 356 S.E.2d 8 (1987).

While the opinions of the several medical expert witnesses differed as to the cause of the subarachnoid hemorrhage from which the victim's death resulted, evidence tending to show that the defendant struck the victim with an iron bar, that the victim fell immediately and was rendered unconscious and went into cardiac arrest, as well as testimony by the State's pathologist that the victim's death was caused by the subarachnoid hemorrhage, which in his opinion was produced by trauma, was sufficiently substantial evidence on the issue of proximate cause to warrant submission of second-degree murder charge to the jury. State v. Springer, 83 N.C. App. 657, 351 S.E.2d 120 (1986), cert. denied, 319 N.C. 226, 353 S.E.2d 410 (1987).

Evidence of three strong blows to different sides of the head, one severe enough to tear the victim's ear almost completely off, was sufficient to establish malice and intent to kill for purposes of second degree murder conviction. State v. Carroll, 85 N.C. App. 696, 355 S.E.2d 844, cert. denied, 320 N.C. 514, 358 S.E.2d 523 (1987).

Evidence was sufficient to support denial of motion to dismiss in trial for second degree murder under a theory of acting in concert. State v. Moore, 87 N.C. App. 156, 360 S.E.2d 293 (1987), cert. denied, 321 N.C. 477, 364 S.E.2d 664 (1988).

Evidence held sufficient to allow the jury to reasonably find that murder was committed by defendant in furtherance of a robbery of the victim and his place of business, and accordingly, to support defendant's convictions for both second-degree murder and armed robbery. State v. Pearson, 89 N.C. App. 620, 366 S.E.2d 895, cert. denied, 323 N.C. 178, 373 S.E.2d 120, cert. denied, 323 N.C. 627, 374 S.E.2d 597 (1988).

Evidence held sufficient to show evidence of malice so as to support conviction of second-degree murder. State v. Roberson, 90 N.C. App. 219, 368 S.E.2d 3, cert. denied, 322 N.C. 487, 370 S.E.2d 237 (1988).

Testimony of the eyewitness that after victim begged defendant not to kill him, that defendant said, "I'm going to kill you anyway" and that he proceeded to do so by deliberately firing a bullet through victim's skull was sufficient to support conviction of second-degree murder. State v. Burge, 100 N.C. App. 671, 397 S.E.2d 760 (1990).

Where defendant struck victim on the head with a handgun with such force that the victim was knocked instantly to the pavement, and where victim hit the pavement with sufficient force to shatter a bottle and cause punctures to the victim's face and to cause bone fragments to enter the victim's brain, there was substantial evidence from which the jury could conclude that the assault was one likely to cause death or serious bodily injury and was, therefore, an intentional killing. State v. Piche, 102 N.C. App. 630, 403 S.E.2d 559 (1991).

Although a physician testified that the hemorrhaging on the top surface of the brain and the cut on top of homicide victim's head would not generally be considered serious injuries, there was no evidence to show that the act of striking another person in the head with a handgun with sufficient force to knock that person to the ground is not an assault likely to cause death or serious bodily injury. State v. Piche, 102 N.C. App. 630, 403 S.E.2d 559 (1991).

While evidence tended to show that defendant may have killed her husband, it did not necessarily lead to the conclusion that defendant first premeditated and deliberated his death; thus, the evidence supported a finding of second-degree murder. State v. Webster, 111 N.C. App. 72, 431 S.E.2d 808, cert. denied, 335 N.C. 180, 438 S.E.2d 206 (1993), aff'd, 337 N.C. 674, 447 S.E.2d 349 (1994), cert. denied, 335 N.C. 180, 438 S.E.2d 206 (1993).

The evidence supported a conviction under this section and the defendant's acts manifested recklessness of consequences and a total disregard for human life where the evidence showed that the he drove while impaired by alcohol, at a time when his license was in a state of permanent revocation; that he drove his pickup truck erratically, swerved off the road, and struck the victim's bicycle killing him instantly; and that he was previously convicted of driving while impaired in 1991 and a 1997 conviction for driving while impaired was on appeal. State v. McAllister, 138 N.C. App. 252, 530 S.E.2d 859 (2000).

Defendant's convictions of second degree murder, and of being a violent habitual felon were affirmed; the trial court properly conducted a hearing as contemplated by G.S. 15A-1002(b) before its ruling that defendant was competent to stand trial where defendant was given adequate notice of the hearing, the trial court properly denied defendant's request for a jury instruction on self defense, the evidence showed that the victim did not carry a gun, that no gun was found on or near the victim, and that defendant never claimed that he saw the victim with a gun, and the trial court properly considered a previous voluntary manslaughter conviction in determining violent habitual felon status. State v. Wolfe, 157 N.C. App. 22, 577 S.E.2d 655 (2003), appeal dismissed, review denied, 357 N.C. 255, 583 S.E.2d 289 (2003).

Evidence that defendant had a breath alcohol concentration of 0.08 and performed poorly on field sobriety tests after he caused an automobile accident that resulted in the death of a child was sufficient to sustain defendant's conviction for second-degree murder, and the trial court did not err by allowing the State to introduce evidence that defendant was convicted of driving while impaired after he was involved in another accident in 1996, to prove malice. State v. Locklear, 159 N.C. App. 588, 583 S.E.2d 726 (2003), cert. denied, 358 N.C. 157, 593 S.E.2d 394 (2004), aff'd, 359 N.C. 63, 602 S.E.2d 359 (2004).

Defendant's conviction for accessory after the fact to second-degree murder was supported by evidence showing defendant personally helped the principal avoid arrest, including testimony about the perpetrator's guilt, circumstantial evidence linking the perpetrator to a car used in the crime, and the perpetrator's guilty plea, and testimony that defendant learned the perpetrator had "gotten his stripes" by attacking the victim, that defendant offered $2,000 for use of a car to leave town with the perpetrator, and that they left town. State v. Brewington, 179 N.C. App. 772, 635 S.E.2d 512 (2006).

Sufficient evidence supported a second-degree murder charge against defendant, where defendant used a deadly weapon, a gun, and intentionally shot the victim after the victim tackled defendant's brother. State v. Johnson, 182 N.C. App. 63, 641 S.E.2d 364 (2007), review denied, 361 N.C. 433, 649 S.E.2d 395 (2007).

Evidence that defendant fired several shots in the direction of three individuals, in a small trailer occupied by six persons, and that he admitted shooting one of the individuals, was sufficient to support his conviction of the second degree murder of that individual under G.S. 14-17. State v. Brower, 186 N.C. App. 397, 651 S.E.2d 390 (2007), review denied, 362 N.C. 363, 661 S.E.2d 742 (2008), cert. denied, - U.S. - , 129 S. Ct. 418, 172 L. Ed. 2d 303 (2008).

Evidence was sufficient to support defendant's convictions for second degree murder where defendant stole a van, drove it recklessly while being pursued by police, which resulted in the van flipping over, colliding with another vehicle, and the occupants thereof being killed; there was sufficient evidence of defendant's malice. State v. Lloyd, 187 N.C. App. 174, 652 S.E.2d 299 (2007), cert. denied, 363 N.C. 586, 683 S.E.2d 214 (2009).

Where the State introduced evidence that defendant knew a drug that defendant sold to two minors was inherently dangerous, there was sufficient evidence of malice to support a charge of second-degree murder. State v. Parlee, 209 N.C. App. 144, 703 S.E.2d 866 (2011), review denied 365 N.C. 197, 710 S.E.2d 34, 2011 N.C. LEXIS 502 (N.C. 2011).

Evidence was sufficient to support defendant's conviction for second-degree murder under G.S. 14-17, based on proper consideration of her confession with respect to her conduct towards her newborn baby, as well as other evidence that tied defendant to the criminal incident and proved that she was the perpetrator of the offense. State v. Kelly, 221 N.C. App. 643, 727 S.E.2d 912 (2012).

Evidence Held Insufficient. - Evidence was insufficient to be submitted to the jury on charges of second-degree murder and voluntary manslaughter but was sufficient to be submitted on the charge of involuntary manslaughter where the evidence tended to show that defendant, a 16 year old boy, shot his 10 year old sister, but in showing the events leading up to and preceding the death of the sister, the State relied entirely on voluntary statements of defendant to the effect that he and his sister were fussing, defendant was "messing around with a shotgun", and the gun accidentally went off. State v. Wagner, 50 N.C. App. 286, 273 S.E.2d 33 (1981).

Evidence that the defendant and the victim argued, without more, was insufficient to show that the defendant's anger was strong enough to disturb his ability to reason, and without evidence showing that the defendant was incapable of deliberating his actions, the evidence could not support the lesser included offense of second-degree murder. State v. Solomon, 340 N.C. 212, 456 S.E.2d 778 (1995).

For additional case in which evidence was held insufficient to support a finding of second-degree murder, see State v. Johnson, 78 N.C. App. 729, 338 S.E.2d 584, cert. denied, 316 N.C. 382, 342 S.E.2d 902 (1986).

For additional cases in which evidence of second-degree murder was held sufficient, see State v. Mooneyhan, 104 N.C. App. 477, 409 S.E.2d 700 (1991).

There is no "attempted second-degree murder" under North Carolina law; instead of seeking such a conviction, the prosecutor could have charged the defendant in a separate indictment with assault with a deadly weapon with intent to kill which requires proof of an element not required for attempted murder - use of a deadly weapon - and is not a lesser-included offense of attempted murder. State v. Coble, 351 N.C. 448, 527 S.E.2d 45 (2000).

An incorrect instruction on attempted second-degree murder was not prejudicial to the defendant where no such crime exists and the jury found defendant guilty of attempted first-degree murder; they would not have found him totally innocent had the instructions been correct. State v. Choppy, 141 N.C. App. 32, 539 S.E.2d 44 (2000).

The trial court did not err or violate double jeopardy principles in sentencing the defendant for both impaired driving and second degree murder. Driving while impaired is not a lesser included offense of second degree murder. State v. McAllister, 138 N.C. App. 252, 530 S.E.2d 859 (2000).

Double jeopardy did not require a driving while intoxicated (DWI) conviction had to be vacated where defendant was also convicted of second-degree murder because the legislature intended to create two separate offenses, and punishment for second degree murder was controlled by structured sentencing, while punishment for DWI was exempted from the structured sentencing provisions. State v. Armstrong, 203 N.C. App. 399, 691 S.E.2d 433 (2010).

VI. DEFENSES AND DENIALS.

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A. IN GENERAL.

.

The common law "year and a day rule" purports to bar a prosecution for a person's death where death actually occurs more than a year and a day after the time of the injuries inflicted by the defendant. The rationale for this rule was that causation was less certain when the victim's death occurred so long after the defendant's act, however, where there was sufficient evidence to support the conclusion that victim's death was the proximate result of injuries he received due to defendant's actions, the court would not apply that rule. State v. Vance, 98 N.C. App. 105, 390 S.E.2d 165, reversed on other grounds, State v. Vance, 328 N.C. 613, 403 S.E.2d 495 (1991).

Defendant may rely on more than one defense. State v. Todd, 264 N.C. 524, 142 S.E.2d 154 (1965).

Plea of not guilty to the felony of second degree murder entitles defendant to offer evidence that the killing was committed in self-defense, by accident, or both; no election is required. State v. Hayes, 88 N.C. App. 749, 364 S.E.2d 712, supersedeas dissolved, 322 N.C. 327, 368 S.E.2d 871 (1988).

For discussion of defense of habitation, see State v. Roberson, 90 N.C. App. 219, 368 S.E.2d 3, cert. denied, 322 N.C. 484, 370 S.E.2d 237 (1988).

B. ACCIDENT.

.

When Homicide Will Be Excused as Accidental. - A homicide will be excused as accidental where (1) the killing was unintentional, (2) the perpetrator acted with no wrongful purpose, (3) the killing occurred while the perpetrator was engaged in a lawful enterprise, and (4) the killing did not occur as a result of culpable negligence. State v. Knight, 87 N.C. App. 125, 360 S.E.2d 125 (1987), cert. denied, 321 N.C. 476, 364 S.E.2d 662 (1988).

A defendant's assertion of accidental killing is not an affirmative defense. State v. Moore, 275 N.C. 198, 166 S.E.2d 652 (1969).

But Rather, a Denial of Guilt. - The contention of a defendant charged with homicide that the killing was accidental is not an affirmative defense, but rather, a denial of guilt by denying the element of intent. State v. Jackson, 36 N.C. App. 126, 242 S.E.2d 891, cert. denied, 295 N.C. 470, 246 S.E.2d 11 (1978).

Misadventure or accident is not an affirmative defense but merely a denial that defendant intentionally shot the deceased. State v. Mercer, 275 N.C. 108, 165 S.E.2d 328 (1969), overruled on other grounds, State v. Caddell, 287 N.C. 266, 215 S.E.2d 348 (1975).

The defense of accident is triggered in factual situations where a defendant, without premeditation, intent, or culpable negligence, commits acts which bring about the death of another. It is not an affirmative defense, but acts to negate the mens rea element of homicide. State v. Lytton, 319 N.C. 422, 355 S.E.2d 485 (1987).

And Does Not Shift the Burden of Proof to Defendant. - The plea of accidental homicide, if indeed it can be properly called a plea, is certainly not an affirmative defense, and therefore does not impose the burden of proof upon the defendant, because the State cannot ask for a conviction unless it proves that the killing was done with criminal intent. State v. Phillips, 264 N.C. 508, 142 S.E.2d 337 (1965).

Defendant's assertion that the killing of deceased with a deadly weapon was accidental is not an affirmative defense which shifts the burden of proof to him to exculpate himself from a charge of murder; it is merely a denial that the defendant committed the crime, and the burden remains on the State to prove a homicide resulting from the intentional use of a deadly weapon before any presumption arises against the defendant. State v. Wrenn, 279 N.C. 676, 185 S.E.2d 129 (1971).

Assertion by an accused that a killing with a deadly weapon was accidental is a denial that he committed the crime charged and is in no sense an affirmative defense shifting the burden to him to satisfy the jury that death of the victim was in fact an accident. State v. Harris, 289 N.C. 275, 221 S.E.2d 343 (1976).

State's Burden of Proof Where Accidental Killing is Claimed. - The claim that the killing was accidental goes to the very gist of the charge, and denies all criminal intent, and throws on the prosecution the burden of proving such intent beyond a reasonable doubt. State v. Phillips, 264 N.C. 508, 142 S.E.2d 337 (1965).

As to the burden of proof where the defendant asserts killing was accidental, see also State v. Fowler, 268 N.C. 430, 150 S.E.2d 731 (1966).

Accident Is Not a Defense to Felony Murder. - Accident will be no defense to a homicide committed in the perpetration of or in the attempt to perpetrate a felony. State v. Phillips, 264 N.C. 508, 142 S.E.2d 337 (1965).

Evidence of Accidental Discharge of Weapon. - When it is made to appear that death was caused by a gunshot wound, testimony tending to show that the weapon was fired in a scuffle or by some other accidental means is competent to rebut an intentional shooting. State v. Phillips, 264 N.C. 508, 142 S.E.2d 337 (1965).

Evidence of Prior Assaults on Same Victim - In defendant's trial on a charge of murder in the first degree, the trial court properly admitted testimony which showed that defendant assaulted the victim, his girlfriend, on prior occasions and that defendant's girlfriend had asked defendant to leave her residence on the day he shot her, because the testimony was relevant to defendant's claim that he discharged his gun accidentally and the prejudicial effect of the evidence did not outweigh its probative value. State v. Latham, 157 N.C. App. 480, 579 S.E.2d 443 (2003), cert. denied, 357 N.C. 509, 588 S.E.2d 376 (2003).

Instruction on "Accident" Need Not Define Term. - In a prosecution for murder and assault with a deadly weapon with intent to kill, where the trial judge instructs the jury on the defense of accident, it is not error if the court does not define the word "accident." State v. Reives, 29 N.C. App. 11, 222 S.E.2d 727, cert. denied, 289 N.C. 728, 224 S.E.2d 675 (1976).

Instruction Held Necessary. - Where both defendant's sister and mother were witnesses for the State and testified that defendant stated that the shooting was accidental, trial judge erred in not instructing jury on defense of accident since testimony gave rise to inference from which jury could find defendant accidentally shot and killed his brother. State v. Garrett, 93 N.C. App. 79, 376 S.E.2d 465, cert. denied, 324 N.C. 338, 378 S.E.2d 802 (1989).

Instruction Held Not Necessary. - In a prosecution for second-degree murder, where the victim died of drowning, it was not error for the court to fail to charge the jury on the defense of accident. If the victim died as the result of an accidental drowning, it was an accident with which the defendant had nothing to do. If the jury had accepted the defendant's version of the event, the jury should have found the defendant not guilty under the charge given to them by the court. It was not necessary for the court to charge on accident. State v. Willoughby, 58 N.C. App. 746, 294 S.E.2d 407, cert. denied, 307 N.C. 129, 297 S.E.2d 403 (1982).

Evidence Held Insufficient to Support Defense of Accidental Death. - Evidence in a prosecution for second-degree murder that defendant did not intend for the bullet to strike the victim but that he intended to fire to the right of his head for the purpose of scaring him did not present the defense of death by accident. State v. Walker, 34 N.C. App. 485, 238 S.E.2d 666 (1977), cert. denied, 294 N.C. 445, 241 S.E.2d 847 (1978).

Where the evidence was uncontroverted that defendant was in a car driving away from the scene when the decedent called out, and that at that point defendant ordered the driver to stop, left the safety of the car with a loaded pistol in his hand, and approached the decedent, voluntarily placing himself in a volatile situation, the fact that he claimed that he did not intend the shooting would not cleanse him of culpability and thus give rise to a defense of accident. However, the defendant was entitled to have the jury consider whether he was guilty only of the offense of involuntary manslaughter. State v. Lytton, 319 N.C. 422, 355 S.E.2d 485 (1987).

Evidence held sufficient to show that individual was the victim of murder rather than the victim of an accident, and that defendant committed the crime. State v. Carroll, 85 N.C. App. 696, 355 S.E.2d 844, cert. denied, 320 N.C. 514, 358 S.E.2d 523 (1987).

Testimony of physician that 30-day-old victim sustained profound head injury indicating fracture of the skull bones, that it is hard to fracture a child's bones, and that it would take a considerable amount of torsion or force to cause the fractures he observed during the autopsy of the victim was sufficient to permit a jury to find that the victim's injuries were not the result of accident. State v. Perdue, 320 N.C. 51, 357 S.E.2d 345 (1987).

C. INSANITY.

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The jury should establish the defendant's guilt or innocence of the crime first and reach the insanity issue only if it first has found the defendant guilty of the crime. State v. Evangelista, 319 N.C. 152, 353 S.E.2d 375 (1987).

The test of insanity as a defense to a criminal charge in this State is the capacity to distinguish between right and wrong at the time of and in respect to the matter under investigation. State v. Mize, 315 N.C. 285, 337 S.E.2d 562 (1985).

Legal insanity requires that the accused be laboring under such defect of reason from disease of the mind as to be incapable of knowing the nature and quality of his act, or if he does know this, not to know right from wrong. State v. Pope, 24 N.C. App. 217, 210 S.E.2d 267 (1974), cert. denied, 286 N.C. 419, 211 S.E.2d 799 (1975).

The test of insanity as a defense to a criminal charge is whether the defendant was laboring under such a defect of reason from disease or deficiency of mind at the time of the alleged act as to be incapable of knowing the nature and quality of his or her act or, if the defendant did know this, was incapable of distinguishing between right and wrong in relation to such act. State v. Evangelista, 319 N.C. 152, 353 S.E.2d 375 (1987).

The M'Naghten test, which focuses on the defendant's capacity to distinguish between right and wrong at the time of and in respect to the crime in question, is the appropriate test for insanity. State v. Davis, 321 N.C. 52, 361 S.E.2d 724 (1987).

A defendant who does not have the mental capacity to form an intent to kill, or to premeditate and deliberate upon the killing, cannot be lawfully convicted of murder in the first degree, whether such mental deficiency be due to a disease of the mind, intoxication or some other cause. State v. Cooper, 286 N.C. 549, 213 S.E.2d 305 (1975); State v. Shepherd, 288 N.C. 346, 218 S.E.2d 176 (1975); State v. Hammonds, 290 N.C. 1, 224 S.E.2d 595 (1976).

Insanity Is an Affirmative Defense. - For case declining to change the longstanding common-law rule in North Carolina that insanity is an affirmative defense which must be proved by the defendant, see State v. Avery, 315 N.C. 1, 337 S.E.2d 786 (1985).

Burden of Proof on Defendant to Prove Insanity. - The presumption of sanity gives rise to the firmly established rule that the defendant has the burden of proving that he was insane during the commission of the crime. The defendant, however, unlike the State, which must prove his guilt beyond a reasonable doubt, is merely required to prove his insanity to the satisfaction of the jury. State v. Mize, 315 N.C. 285, 337 S.E.2d 562 (1985); State v. Evangelista, 319 N.C. 152, 353 S.E.2d 375 (1987).

The trial court's instruction to the jury that the defendant had the burden of proving his insanity to the jury's satisfaction was not error. State v. Evangelista, 319 N.C. 152, 353 S.E.2d 375 (1987).

In this jurisdiction every person is presumed sane until the contrary is shown, and the defendant has the burden of proving his insanity to the satisfaction of the jury. State v. Davis, 321 N.C. 52, 361 S.E.2d 724 (1987).

It is the defendant's burden to satisfy the jury of the existence of the insanity defense, even where the evidence of insanity presented by the defendant is uncontradicted by an offer of proof by the State. State v. Battle, 322 N.C. 69, 366 S.E.2d 454, cert. denied, 487 U.S. 1220, 108 S. Ct. 2876, 101 L. Ed. 2d 911 (1988).

Constitutionality of Placing Such Burden on Defendant. - The mens rea or the criminal intent required for first degree murder is proven through the elements of premeditation and deliberation. The State is not unconstitutionally relieved of any burden by the rule placing the burden of proof on the issue of insanity on defendant. State v. Mize, 315 N.C. 285, 337 S.E.2d 562 (1985).

Burden of Proving Unlawfulness Not Shifted to Defendant. - The defense of insanity is unrelated to the existence or nonexistence of the element of unlawfulness. To place the burden of persuasion on the insanity issue upon the defendant in a homicide case in no way lessens the state's burden to prove unlawfulness beyond a reasonable doubt, nor does it shift the burden of persuasion on this element to the defendant. State v. Marley, 321 N.C. 415, 364 S.E.2d 133 (1988).

Theory of Diminished Responsibility Not Adopted. - The Supreme Court has not adopted with respect to the specific intent to commit a crime such as first-degree murder what has been called the theory of diminished responsibility, under which some states hold that a defendant may offer evidence of an unusual or abnormal mental condition which is not sufficient to establish legal insanity, but tends to show that he did not have the capacity to premeditate or deliberate at the time of the murder. State v. Shepherd, 288 N.C. 346, 218 S.E.2d 176 (1975).

Diminished capacity not amounting to legal insanity is not a defense to the element of malice in second-degree murder. State v. Page, 346 N.C. 689, 488 S.E.2d 225 (1997), cert. denied, 522 U.S. 1056, 118 S. Ct. 710, 139 L. Ed. 2d 651 (1998).

Admissibility of Evidence of Abnormal Mental Condition Not Amounting to Legal Insanity. - A defendant may offer evidence of an abnormal mental condition, although not sufficient to establish legal insanity, for the purpose of showing that he did not have the capacity to deliberate or premeditate at the time the homicide was committed, elements necessary for a conviction of murder in the first degree. State v. Baldwin, 276 N.C. 690, 174 S.E.2d 526 (1970).

Admissibility of Expert Testimony as to Mental Capacity. - Since first-degree murder requires premeditation and deliberation, opinion testimony tending to show that a defendant did not have the capacity to premeditate or deliberate is testimony that embraces an ultimate issue to be decided by the trier of fact. Under G.S. 8C-1, Rule 704, however, such testimony is not thereby rendered inadmissible. State v. Shank, 322 N.C. 243, 367 S.E.2d 639 (1988).

Section 8C-1, Rule 704 plainly provides that an expert witness is not precluded from testifying as to whether a defendant had the capacity to make and carry out plans, or was under the influence of mental or emotional disturbance, merely because such testimony relates to an ultimate issue to be decided by the trier of fact. State v. Shank, 322 N.C. 243, 367 S.E.2d 639 (1988), overruling State v. Kirkley, 308 N.C. 196, 302 S.E.2d 144 (1983), and State v. Anderson, 303 N.C. 185, 278 S.E.2d 238 (1981), insofar as they are inconsistent.

Trial court's instruction that voluntary intoxication would not support a defense of insanity was not erroneous, where there was no evidence tending to show that defendant was suffering any chronic or permanent insanity in consequence of his excessive ingestion of alcohol. State v. Austin, 320 N.C. 276, 357 S.E.2d 641, cert. denied, 484 U.S. 916, 108 S. Ct. 267, 98 L. Ed. 2d 224 (1987).

Instruction on Insanity Properly Refused. - In the absence of any evidence of insanity, it is not error for the trial judge to refuse the defendant's request that he instruct the jury upon the law relating to insanity as a defense to the charge of murder. State v. Jones, 293 N.C. 413, 238 S.E.2d 482 (1977).

The trial court did not err by not charging the jury on the defense of insanity where the evidence only included testimony that defendant drove down the highway recklessly, that he woke his family up during the night to go "bird blinding," that he shot into the floor beside his wife a few times, that he beat his wife and children, and that he had a reputation in the community for being crazy. State v. Strickland, 321 N.C. 31, 361 S.E.2d 882 (1987).

The trial court did not err in failing to direct verdicts of not guilty by reason of insanity, where although the defendant presented strong evidence that he was insane when he shot one victim and deprived her infant of liquids, the State presented evidence tending to controvert the defendant's evidence and to support the presumption of his sanity. State v. Evangelista, 319 N.C. 152, 353 S.E.2d 375 (1987).

Effect of Finding of Not Guilty by Reason of Insanity. - A finding of not guilty by reason of insanity is not the same as an acquittal, nor does it result in defendant's being found guilty of a lesser degree of homicide. It simply means that defendant is absolved from criminal responsibility for his act and cannot be punished for it. Instead, defendant, upon appropriate findings by the trial court, may be involuntarily committed to a State mental health facility. State v. Marley, 321 N.C. 415, 364 S.E.2d 133 (1988).

D. INTOXICATION.

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Drunkenness May Negate Specific Intent to Kill. - Voluntary drunkenness is not a legal excuse for crime; but where a specific intent, or premeditation and deliberation, is essential to constitute a crime or a degree of crime, the fact of intoxication may negate its existence. State v. Propst, 274 N.C. 62, 161 S.E.2d 560 (1968).

The general rule that voluntary drunkenness is no legal excuse for crime does not obtain with respect to crimes where, in addition to the overt act, it is required that a definite, specific intent be established as an essential feature. Murder in the first degree is a specific intent crime in that a specific intent to kill is a necessary ingredient of premeditation and deliberation. Intoxication which renders an offender utterly unable to form the required intent may be shown as a defense. State v. Baldwin, 276 N.C. 690, 174 S.E.2d 526 (1970).

While voluntary drunkenness is not, per se, an excuse for a criminal act, it may be sufficient in degree to prevent and, therefore, disprove the existence of a specific intent such as the intent to kill. State v. Duncan, 282 N.C. 412, 193 S.E.2d 65 (1972).

Defendant's intoxicated condition went only to negate the specific intent necessary to find him guilty of first-degree murder. State v. Cummings, 22 N.C. App. 452, 206 S.E.2d 781, cert. denied, 285 N.C. 760, 209 S.E.2d 284 (1974).

And May Be Defense to First Degree Murder But Not to Second Degree Murder. - Voluntary drunkenness is a defense to the charge of first-degree murder to the extent that it precludes the mental processes of premeditation and deliberation, but voluntary drunkenness is no defense to murder in the second degree. State v. Couch, 35 N.C. App. 202, 241 S.E.2d 105 (1978); State v. King, 49 N.C. App. 499, 272 S.E.2d 26 (1980), cert. denied, 302 N.C. 220, 276 S.E.2d 917 (1981).

But Voluntary Intoxication Is Not a Defense to Felony Murder Based on Arson. - Since voluntary intoxication is not a defense to a charge of arson, it is not a defense to a charge of felony murder having as its underlying felony the crime of arson. State v. White, 291 N.C. 118, 229 S.E.2d 152 (1976).

Where legal intoxication is shown, the offense is reduced to second-degree murder. State v. Bunn, 283 N.C. 444, 196 S.E.2d 777 (1973); State v. McLaughlin, 286 N.C. 597, 213 S.E.2d 238 (1975), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3206, 49 L. Ed. 2d 1208 (1976); State v. Bock, 288 N.C. 145, 217 S.E.2d 513 (1975), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3208, 49 L. Ed. 2d 1209 (1976).

No Inference Arises from Intoxication as Matter of Law. - Whether intoxication and premeditation can coexist depends upon the degree of inebriety and its effect upon the mind and passions. No inference of the absence of deliberation and premeditation arises from intoxication as a matter of law. State v. Hamby, 276 N.C. 674, 174 S.E.2d 385 (1970), death sentence vacated, 408 U.S. 937, 92 S. Ct. 2862, 33 L. Ed. 2d 754 (1972); State v. Duncan, 282 N.C. 412, 193 S.E.2d 65 (1972); State v. Bunn, 283 N.C. 444, 196 S.E.2d 777 (1973).

Because an Intoxicated Person May Still Be Capable of Premeditation and Deliberation. - No inference of the absence of deliberation and premeditation arises from intoxication as a matter of law because intoxication does not necessarily render a person incapable of engaging in the thought processes of premeditation and deliberation. State v. Lowery, 309 N.C. 763, 309 S.E.2d 232 (1983); State v. Locklear, 322 N.C. 349, 368 S.E.2d 377 (1988).

A person may be excited, intoxicated and emotionally upset, and still have the capability to formulate the necessary plan, design, or intention to commit murder in the first degree. State v. Hamby, 276 N.C. 674, 174 S.E.2d 385 (1970), death sentence vacated, 408 U.S. 937, 92 S. Ct. 2862, 33 L. Ed. 2d 754 (1972); State v. Bunn, 283 N.C. 444, 196 S.E.2d 777 (1973).

Evidence of defendant's intoxication need only raise a reasonable doubt as to whether defendant formed the requisite intent to kill required for conviction of first-degree murder in order for defendant to prevail on this issue. State v. Mash, 323 N.C. 339, 372 S.E.2d 532 (1988).

Degree of Intoxication Which Must Be Shown to Constitute a Defense. - To make the defense of intoxication available the evidence must show that at the time of the killing the prisoner's mind and reason were so completely intoxicated and overthrown as to render him utterly incapable of forming a deliberate and premeditated purpose to kill. And where the evidence shows that the purpose to kill was deliberately and premeditatedly formed when sober, the imbibing of intoxicants to whatever extent in order to carry out the design will not avail as a defense. State v. Baldwin, 276 N.C. 690, 174 S.E.2d 526 (1970); State v. Medley, 295 N.C. 75, 243 S.E.2d 374 (1978); State v. Lowery, 309 N.C. 763, 309 S.E.2d 232 (1983).

For intoxication to constitute a defense it must appear that the defendant was not able, by reason of drunkenness, to think out beforehand what he intended to do and weigh it and understand the nature and consequence of his act. State v. Duncan, 282 N.C. 412, 193 S.E.2d 65 (1972); State v. Bunn, 283 N.C. 444, 196 S.E.2d 777 (1973); State v. Medley, 295 N.C. 75, 243 S.E.2d 374 (1978).

If at the time of the killing, defendant was so drunk as to be utterly incapable of forming a deliberate and premeditated intent to kill a person, he could not be guilty of murder in the first degree, for an essential element of that crime would be lacking. State v. Hamby, 276 N.C. 674, 174 S.E.2d 385 (1970), death sentence vacated, 408 U.S. 937, 92 S. Ct. 2862, 33 L. Ed. 2d 754 (1972); State v. Bunn, 283 N.C. 444, 196 S.E.2d 777 (1973); State v. Bock, 288 N.C. 145, 217 S.E.2d 513 (1975), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3208, 49 L. Ed. 2d 1209 (1976); State v. Locklear, 322 N.C. 349, 368 S.E.2d 377 (1988).

In the absence of evidence of intoxication to a degree precluding the ability to form a specific intent to kill, the court is not required to charge the jury thereupon. State v. McLaughlin, 286 N.C. 597, 213 S.E.2d 238 (1975), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3206, 49 L. Ed. 2d 1208 (1976).

A defendant who wishes to raise an issue for the jury as to whether he was so intoxicated by the voluntary consumption of alcohol that he did not form a deliberate and premeditated intent to kill has the burden of producing evidence, or relying on evidence produced by the State, which would support a conclusion by the judge that he was so intoxicated that he could not form a deliberate and premeditated intent to kill. State v. Mash, 323 N.C. 339, 372 S.E.2d 532 (1988).

Where, among other things, witness' testimony painted a vivid portrait of defendant coolly and coherently planning the murder with an accomplice, defendant had the presence of mind to realize the victim would not open the door for him and to communicate this problem to the accomplice, and was alert enough to compel the witness' participation in the crime, this evidence, viewed in the light most favorable to the State, was sufficient to support a finding that defendant was not so intoxicated as to be incapable of premeditation and deliberation. State v. Cummings, 323 N.C. 81, 372 S.E.2d 541 (1988), sentence vacated and remanded for further consideration at, 494 U.S. 1021, 110 S. Ct. 1464, 108 L. Ed. 2d 602 (1990), in light of In re Howett, 76 N.C. App. 142, 331 S.E.2d 701 (1985).

Intent to Kill Formed When Sober and Executed When Drunk. - Where the facts show that the intent to kill was deliberately formed when sober and executed when drunk, intoxication is no defense to the capital charge of murder in the first degree. State v. Baldwin, 276 N.C. 690, 174 S.E.2d 526 (1970).

Intoxication for Purposes of Motor Vehicle Laws Is Not Sufficient to Establish Defense. - A person may be "under the influence" of intoxicants in violation of the motor vehicle laws and yet be quite capable of forming and carrying out a specific intent to kill. State v. Medley, 295 N.C. 75, 243 S.E.2d 374 (1978).

Breathalyzer Test Is Not Applicable in Homicides. - The chemical analysis (Breathalyzer) test authorized by G.S. 20-139.1 is, by its express terms, applicable only to criminal actions arising out of the operation of a motor vehicle and has no application to criminal responsibility for homicide. State v. Medley, 295 N.C. 75, 243 S.E.2d 374 (1978).

Effect of Intoxication Is Question for Jury. - It is for the jury to determine whether the mental condition of accused was so far affected by intoxication that he was unable to form a guilty intent to commit murder, unless the evidence is not sufficient to warrant the submission of the question to the jury. State v. Hamby, 276 N.C. 674, 174 S.E.2d 385 (1970), death sentence vacated, 408 U.S. 937, 92 S. Ct. 2862, 33 L. Ed. 2d 754 (1972); State v. Lowery, 309 N.C. 763, 309 S.E.2d 232 (1983).

Evidence Held Insufficient to Support Defense of Intoxication. - Where the evidence tended to show that defendant was drinking heavily but there was no evidence tending to show that defendant did not know what he was doing, both in the planning and the execution of the crime which he consummated, the evidence was not sufficient to make available to him the defense of intoxication. State v. Doss, 279 N.C. 413, 183 S.E.2d 671 (1971), death sentence vacated, 408 U.S. 939, 92 S. Ct. 2875, 33 L. Ed. 2d 762 (1972).

The trial court did not err in refusing to instruct on voluntary intoxication and to submit the possible verdict of second degree murder to the jury, where defendant did not show voluntary intoxication sufficient to negate specific intent. State v. Strickland, 321 N.C. 31, 361 S.E.2d 882 (1987).

Evidence presented that defendant drank "about five or six" beers and consumed an indeterminate amount of marijuana and cocaine at some time earlier in the day was insufficient to show that defendant was so intoxicated that he was incapable of forming the intent necessary to commit first-degree premeditated and deliberated murder. State v. Baldwin, 330 N.C. 446, 412 S.E.2d 31 (1992).

Instruction on Intoxication Not Required. - Trial court did not err in charging that defendant's intoxication could have no bearing upon his guilt or innocence of the lesser included offenses in the charge of first-degree murder. State v. Cummings, 22 N.C. App. 452, 206 S.E.2d 781, cert. denied, 285 N.C. 760, 209 S.E.2d 284 (1974).

It would have been erroneous for the trial court to have given an instruction on voluntary intoxication; defendant had to produce substantial evidence which would have supported a conclusion by the trial court that the defendant's mind and reason were so completely intoxicated and overthrown as to render him utterly incapable of forming a deliberate and premeditated intent to kill; therefore, evidence tending to show only that the defendant drank some unknown quantity of beer over a period of several hours and claimed not to remember the killings did not meet the defendant's burden of production. State v. Laws, 325 N.C. 81, 381 S.E.2d 609 (1989), sentence vacated and remanded for further consideration at, 494 U.S. 1022, 110 S. Ct. 1465, 108 L. Ed. 2d 603 (1990), in light of State v. Browning, 321 N.C. 535, 364 S.E.2d 376 (1988).

Where the defendant did not make the requisite showing that he and co-conspirator was utterly incapable of forming the requisite intent, the trial court did not err in failing to give an instruction on voluntary intoxication. State v. Larrimore, 340 N.C. 119, 456 S.E.2d 789 (1995).

E. PROVOCATION.

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Provocation Is an Affirmative Defense. - The legal provocation that will rob the crime of malice and thus reduce it to manslaughter, and self-defense, are affirmative pleas. State v. Todd, 264 N.C. 524, 142 S.E.2d 154 (1965).

Provocation never disproves malice, but only removes the presumption of malice, which the law raises without proof. A malicious killing is murder, however gross the provocation. State v. Johnson, 23 N.C. 354 (1840).

Reduction of Killing in Heat of Passion Engendered by Provocation to Manslaughter. - In order to reduce second-degree murder to voluntary manslaughter, there must be some evidence that the defendant killed his victim in the heat of passion engendered by provocation which the law deems adequate to depose reason. State v. Burden, 36 N.C. App. 332, 244 S.E.2d 204, cert. denied, 295 N.C. 468, 246 S.E.2d 216 (1978).

To reduce the crime of murder to voluntary manslaughter, the defendant must either rely on evidence presented by the State or assume a burden to go forward with or produce some evidence of all the elements of heat of passion on sudden provocation. State v. Long, 87 N.C. App. 137, 360 S.E.2d 121 (1987).

For case defining the term "heat of passion," see State v. Pope, 24 N.C. App. 217, 210 S.E.2d 267 (1974), cert. denied, 286 N.C. 419, 211 S.E.2d 799 (1975).

Abusive language will not serve as a legally sufficient provocation for a homicide in this State. State v. Watson, 287 N.C. 147, 214 S.E.2d 85 (1975).

Nor Mitigate Homicide to Lesser Degree. - Mere words, however abusive, are never sufficient legal provocation to mitigate a homicide to a lesser degree. State v. Watson, 287 N.C. 147, 214 S.E.2d 85 (1975).

Words alone are never sufficient provocation to mitigate second degree murder to voluntary manslaughter. State v. Best, 79 N.C. App. 734, 340 S.E.2d 524 (1986), overruled on other grounds, State v. Maynor, 331 N.C. 695, 417 S.E.2d 453 (1992).

These facts do not show legal provocation: defendant prepared to shoot the victim by loading his gun and putting on the safety before he got out of his car; after the victim arrived, defendant removed the safety, knowing that shells were chambered and ready to be fired; defendant was approximately thirty feet from the victim when the victim directed a flashlight beam at defendant's face. The victim and defendant exchanged no words and had no physical contact. State v. Joyner, 329 N.C. 211, 404 S.E.2d 653 (1991).

Defendant's statement to the police, admitting that he shot victim for refusing to hand over money from cash register, constituted substantial evidence that defendant was not provoked. State v. Miller, 339 N.C. 663, 455 S.E.2d 137, rehearing denied, 340 N.C. 118, 458 S.E.2d 183 (1995).

Evidence that defendant found his estranged wife riding in a car with another man was not sufficient to show adequate cause for passion which would negate the malice of murder and reduce it to manslaughter. State v. Burden, 36 N.C. App. 332, 244 S.E.2d 204, cert. denied, 295 N.C. 468, 246 S.E.2d 216 (1978).

Evidence That Deceased Threw Cigarette Butt at Defendant. - The law requires a showing of strong provocation before it will grant a defendant who is charged with second-degree murder a jury instruction on the lesser included offense of voluntary manslaughter. Evidence that the deceased threw a cigarette butt at defendant does not rise to the level of serious provocation required. State v. Owens, 65 N.C. App. 107, 308 S.E.2d 494 (1983).

The fact that defendant killed his father in order to end his suffering did not constitute adequate provocation to negate malice, since defendant, though clearly upset by his father's condition, indicated by his action and his statements that his crime was premeditated and deliberate. State v. Forrest, 321 N.C. 186, 362 S.E.2d 252 (1987).

"Aggressor Instruction". - Where state's witnesses testified defendant threatened shooting victim just seconds before the shooting - sufficiently close in time to the alleged crime to affect defendant's self-defense argument - and defendant disputed this evidence, testifying that he shot the man in self-defense after the man provoked him it was not error for the court to give an "aggressor instruction." Although defendant's evidence did not support the aggressor instruction, the state's evidence did. By instructing jurors on the aggressor qualification, the trial court allowed the triers of fact to determine which testimony to believe. Not only was this not plain error, it was not error at all. State v. Terry, 329 N.C. 191, 404 S.E.2d 658 (1991).

F. SELF-DEFENSE.

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Elements of Perfect Self-Defense. - The law of perfect self-defense excuses a killing altogether if, at the time of the killing, these four elements existed: (1) It appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; (2) defendant's belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness; (3) defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and (4) defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm. State v. Norris, 303 N.C. 526, 279 S.E.2d 570 (1981); State v. Cooke, 306 N.C. 117, 291 S.E.2d 649 (1982); State v. Bush, 307 N.C. 152, 297 S.E.2d 563 (1982); State v. Vaughan, 59 N.C. App. 318, 296 S.E.2d 516 (1982), cert. denied, 307 N.C. 582, 299 S.E.2d 650; 461 U.S. 943, 103 S. Ct. 2120, 77 L. Ed. 2d 1301 (1983).

For a killing to be in self-defense, the perceived necessity must arise from a reasonable fear of imminent death or great bodily harm. State v. Norman, 324 N.C. 253, 378 S.E.2d 8 (1989).

Perfect Self-Defense Requires Verdict of Not Guilty to All Offenses. - The existence of the elements of a perfect right of self-defense requires a verdict of not guilty, not only as to the charge of murder in the first degree but as to all lesser included offenses as well. State v. Norris, 303 N.C. 526, 279 S.E.2d 570 (1981); State v. Vaughan, 59 N.C. App. 318, 296 S.E.2d 516 (1982), cert. denied, 307 N.C. 582, 299 S.E.2d 650; 461 U.S. 943, 103 S. Ct. 2120, 77 L. Ed. 2d 1301 (1983).

"Without justification or excuse" as an element of murder in the first or second degree means the defendant did not believe it was necessary to kill the victim in order to save herself from death, or great bodily harm; or, if she did believe this, her belief under the circumstances as they appeared to her at that time was unreasonable. State v. Norris, 303 N.C. 526, 279 S.E.2d 570 (1981).

Right Is Based on Real or Apparent Necessity. - The right to kill in self-defense of one's family or habitation, rests upon necessity, real or apparent. State v. Todd, 264 N.C. 524, 142 S.E.2d 154 (1965); State v. Jackson, 284 N.C. 383, 200 S.E.2d 596 (1973).

One may kill in defense of himself, or his family, when necessary to prevent death or great bodily harm, or when it is not actually necessary to prevent death or great bodily harm, if he believes it to be necessary and has a reasonable ground for the belief. State v. Todd, 264 N.C. 524, 142 S.E.2d 154 (1965).

The right to act in self-defense is based upon necessity, real or apparent, and a person may use such force as is necessary or apparently necessary to save himself from death or great bodily harm in the lawful exercise of his right of self-defense. State v. Deck, 285 N.C. 209, 203 S.E.2d 830 (1974).

Where the jury finds that the defendant intended to kill and inflicted injuries, for defendant to be completely absolved, the jury must find that he acted in self-defense against actual or apparent danger of death or greater bodily harm. State v. Lewis, 27 N.C. App. 426, 219 S.E.2d 554 (1975), cert. denied, 289 N.C. 141, 220 S.E.2d 799 (1976).

Where the jury finds that the defendant did not intend to kill, the defendant is privileged by the law of self-defense to use such force against the other as is actually or reasonably necessary under the circumstances to protect himself from bodily injury or offensive physical contact at the hands of the other, even though he is not thereby put in actual or apparent danger of death or great bodily harm. State v. Lewis, 27 N.C. App. 426, 219 S.E.2d 554 (1975), cert. denied, 289 N.C. 141, 220 S.E.2d 799 (1976).

Trial court did not err in instructing the jury that it could find that defendant acted in self-defense only if defendant reasonably believed that under the circumstances it was necessary "to kill" the victims. State v. Richardson, 341 N.C. 585, 461 S.E.2d 724 (1995).

Defendant Must Not Have Initiated or Provoked the Dispute. - Self-defense requires, among other things, that the one invoking the defense be without fault in initiating the affray. It must also be shown that the killing was necessary or appeared to be necessary to prevent death or great bodily harm to defendant. State v. Mays, 14 N.C. App. 90, 187 S.E.2d 479, cert. denied, 281 N.C. 157, 188 S.E.2d 366 (1972); State v. Davis, 289 N.C. 500, 223 S.E.2d 296, death sentence vacated, 429 U.S. 809, 97 S. Ct. 47, 50 L. Ed. 2d 69 (1976).

The right to kill another in self-defense may be forfeited not only by physical aggression on the accused's part but by conduct provoking the fatal encounter. State v. Hamilton, 77 N.C. App. 506, 335 S.E.2d 506 (1985).

And Must Not Be at Fault in Engaging in or Continuing the Difficulty. - A person is justified in defending himself if he is without fault in provoking, or engaging in, or continuing a difficulty with another. State v. Lewis, 27 N.C. App. 426, 219 S.E.2d 554 (1975), cert. denied, 289 N.C. 141, 220 S.E.2d 799 (1976).

Aggressor Is Guilty of Murder If He Intended to Kill or Seriously Injure. - If one takes life, though in defense of his own life, in a quarrel which he himself has commenced with intent to take life or inflict serious bodily harm, the jeopardy in which he has been placed by the act of his adversary constitutes no defense whatever, but he is guilty of murder. But, if he commenced the quarrel with no intent to take life or inflict grievous bodily harm, then he is not acquitted of all responsibility for the affray which arose from his own act, but his offense is reduced from murder to manslaughter. State v. Potter, 295 N.C. 126, 244 S.E.2d 397 (1978); State v. Norris, 303 N.C. 526, 279 S.E.2d 570 (1981); State v. Cooke, 306 N.C. 117, 291 S.E.2d 649 (1982).

Although a party is privileged to use deadly force to defend against an attack by unarmed assailants of vastly superior size, strength or number, if the defendant precipitated the altercation intending to provoke a deadly assault by the victim in order that he might kill him, his subsequent killing of the victim in response to the attack is murder. State v. Sanders, 295 N.C. 361, 245 S.E.2d 674 (1978), cert. denied, 454 U.S. 973, 102 S. Ct. 523, 70 L. Ed. 2d 392 (1981).

Aggressor Loses Benefit of Perfect Self-Defense. - An accused who, though otherwise acting in self-defense, is the aggressor in bringing on the affray is guilty at least of voluntary manslaughter. The defendant, under such circumstances, "loses the benefit of perfect self-defense." State v. Potter, 295 N.C. 126, 244 S.E.2d 397 (1978).

But Has an Imperfect Right of Self-Defense. - An imperfect right of self-defense is available to a defendant who reasonably believes it is necessary to kill the deceased to save himself from death or great bodily harm even if defendant (1) might have brought on the difficulty, provided he did so without murderous intent, and (2) might have used excessive force. State v. Mize, 316 N.C. 48, 340 S.E.2d 439 (1986).

Except in special circumstances, self-defense is not an available defense to felony murder. State v. Moore, 339 N.C. 456, 451 S.E.2d 232 (1994).

Self-Defense and Felony Murder. - Absent (i) a reasonable basis upon which the jury may have disbelieved the p