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 prosecution's evidence of the underlying felony; (ii) a factual showing that defendant clearly articulated his intent to withdraw from the situation; or (iii) a factual showing that at the time of the violence the dangerous situation no longer existed, defendant has forfeited his right to claim self-defense as a defense to felony murder. 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).

And Is Guilty at Least of Manslaughter. - If defendant believed it was necessary to kill the deceased in order to save herself from death or great bodily harm, and if defendant's belief was reasonable in that the circumstances as they appeared to her at the time were sufficient to create such a belief in the mind of a person of ordinary firmness, but defendant, although without murderous intent, was the aggressor in bringing on the difficulty, or defendant used excessive force, the defendant under those circumstances has only the imperfect right of self-defense, having lost the benefit of perfect self-defense, and is guilty at least of voluntary manslaughter. 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).

Where the issue in a homicide case narrows to the exercise of either the perfect or imperfect right of self-defense, as the jury may find, the question for the jury is not limited to whether defendant is guilty of first-degree murder or not guilty by reason of self-defense. When the defendant has exercised the imperfect right of self-defense, the homicide is reduced from murder to manslaughter. State v. Norris, 303 N.C. 526, 279 S.E.2d 570 (1981).

Unless He Quits the Combat. - A defendant, prosecuted for homicide in a difficulty which he had himself wrongfully provoked, may not maintain the position of perfect self-defense unless, at a time prior to the killing, he had quitted the combat. State v. Potter, 295 N.C. 126, 244 S.E.2d 397 (1978).

A defendant, prosecuted for a homicide in a situation that he has provoked by the use of language "calculated and intended" to bring on the encounter, cannot maintain the position of perfect self-defense unless, at a time prior to the killing, he withdrew from the encounter within the meaning of the law. State v. Watson, 287 N.C. 147, 214 S.E.2d 85 (1975).

In order that the right of self-defense may be restored to a person who has provoked or commenced a combat, he must attempt in good faith to withdraw from the combat. He must also in some manner make known his intention to his adversary; and if the circumstances are such that he cannot notify his adversary, as where the injuries inflicted by him are such as to deprive his adversary of his capacity to receive impressions concerning his assailant's design and endeavor to cease further combat, it is the assailant's fault and he must bear the consequences. As long as a person keeps his gun in his hand prepared to shoot, the person opposing him is not expected or required to accept any act or statement as indicative of an intent to discontinue the assault. State v. Winford, 279 N.C. 58, 181 S.E.2d 423 (1971).

Instruction as to Precipitation of Fight or Assault. - In a prosecution for the murder of a military policeman while defendant was in a holding cell after having been illegally arrested, trial court's instruction, dealing with the right to kill in self-defense, that "one enters a fight voluntarily if he uses toward his opponent such abusive language which considering all of the circumstances is calculated and intended to bring on a fight, and if a person precipitates an altercation or a fight with the intent to provoke a deadly assault by the victim in order that he might kill him the subsequent killing of the victim in response to the attack is murder" was a correct statement of the law and was supported by the evidence. State v. Sanders, 303 N.C. 608, 281 S.E.2d 7, cert. denied, 454 U.S. 973, 102 S. Ct. 523, 70 L. Ed. 2d 392 (1981).

Amount of Force Used. - If the defendant in killing the deceased was acting in self-defense but used more force than was necessary or reasonably appeared necessary under the circumstances, he is guilty of voluntary 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).

The defense of habitation or domicile is limited to those cases where a defendant is attempting to prevent a forcible entry into his home. State v. McLaurin, 46 N.C. App. 746, 266 S.E.2d 406 (1980).

For a case reviewing the law of the defense of habitation, and the distinction between the defense of habitation and ordinary self-defense, see State v. McCombs, 297 N.C. 151, 253 S.E.2d 906 (1979).

Under the evidence, the trial court in a second-degree murder case erred in failing to charge the jury on defense of habitation. State v. Hedgepeth, 46 N.C. App. 569, 265 S.E.2d 413 (1980).

Neither permanency of residence nor a leasehold interest in the premises is required before a person is legally justified in standing her ground, rather than retreating, before using deadly force in self-defense. One must show only that she is a member of a household, however temporarily, and that she possesses an intent to reside in that particular place at the time of the attack. State v. Stevenson, 81 N.C. App. 409, 344 S.E.2d 334 (1986).

When a person who is free from fault in bringing on a difficulty is attacked in his own home or on his own premises, the law imposes on him no duty to retreat before he can justify his fighting in self-defense, regardless of the character of the assault, but he is entitled to stand his ground, to repel force with force, and to increase his force, so as not only to resist, but also to overcome the assault and secure himself from all harm. This, of course, would not excuse the defendant if he used excessive force in repelling the attack and overcoming his adversary. This rule applies even when both defendant and victim reside in the same dwelling. State v. Hearn, 89 N.C. App. 103, 365 S.E.2d 206 (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).

Once an assailant gains entry into an occupied dwelling, the usual rules of self-defense replace the rules governing defense of habitation. 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).

Use of Force in Resisting Unlawful Arrest. - In a prosecution for the murder of a military policeman while defendant was in a holding cell after he had been unlawfully arrested, trial court did not err in failing to charge that defendant was entitled to use deadly force if such was required to prevent the arrest or to free himself from unlawful confinement, since the victim of an unlawful arrest is not ipso facto entitled to kill or to use deadly force against the person attempting arrest. State v. Sanders, 303 N.C. 608, 281 S.E.2d 7, cert. denied, 454 U.S. 973, 102 S. Ct. 523, 70 L. Ed. 2d 392 (1981).

Battered Spouse. - For case declining to expand the law of self-defense so as to entitle a battered spouse who killed her intoxicated husband while he slept to jury instructions on either perfect or imperfect self-defense, see State v. Norman, 324 N.C. 253, 378 S.E.2d 8 (1989).

Evidence of Victim's Character. - When self-defense is raised as a defense, the defendant may produce evidence of the victim's character tending to show (1) that the victim was the aggressor, or (2) that defendant had a reasonable apprehension of death or bodily harm, or both. State v. Corn, 307 N.C. 79, 296 S.E.2d 261 (1982).

Evidence of the deceased's violent character, whether known to the defendant or not, is admissible in a homicide case where self-defense is in issue and the State's evidence is wholly circumstantial or the nature of the transaction is in doubt, in order to shed light on the question of which party was the first aggressor. State v. Barbour, 295 N.C. 66, 243 S.E.2d 380 (1978); State v. Price, 301 N.C. 437, 272 S.E.2d 103 (1980).

Evidence as to the general moral character of the deceased is not admissible in a prosecution for homicide. State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971), cert. denied, 414 U.S. 874, 94 S. Ct. 157, 38 L. Ed. 2d 114 (1973).

It is true that upon a proper showing that the accused in a homicide case may have acted in self-defense, the jury is entitled to hear and evaluate evidence of uncommunicated threats and evidence of the general character of the victim as a violent and dangerous man; however, as a condition precedent to the admissibility of such evidence, the defendant must first present viable evidence of the necessity of the self-defense. 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).

In defendant's murder trial, defendant was not required to make an offer of proof regarding testimony that her victim had told her former employee that he was going to "shoot up his house" that was excluded when the trial court granted the state's motion to strike the testimony. State v. Everett, 178 N.C. App. 44, 630 S.E.2d 703 (2006).

In defendant's trial ending in her conviction for second-degree murder, evidence of her prior conduct in shooting a dog was irrelevant under G.S. 8C-1-401; the evidence was not necessary to show that defendant was knowledgeable about firearms or had used a gun in the past because defendant had admitted that she shot her victim and whether or not she knew how to use a pistol was not contested, and the evidence was irrelevant to her claim of self-defense. State v. Everett, 178 N.C. App. 44, 630 S.E.2d 703 (2006).

Testimony from a witness who saw defendant's victim breaking car windows at an automobile dealership should have been admitted during her murder trial, which ended in her conviction for second-degree murder, as an essential element of her assertion of self-defense under G.S. 8C-1-405(b). State v. Everett, 178 N.C. App. 44, 630 S.E.2d 703 (2006).

Erroneous exclusion of testimony from a car dealership employee who saw defendant's victim breaking car windows at the dealership, which should have been admitted during defendant's murder trial as evidence of the victim's violent character, was prejudicial under G.S. 15A-1443(a) even though defendant testified to the same incident on direct and redirect examination. State v. Everett, 178 N.C. App. 44, 630 S.E.2d 703 (2006).

Evidence of Acts of Violence Committed by Victim. - In a criminal prosecution for homicide, if there is a proper showing that the accused may have acted in self-defense or some comparable justification, evidence of specific acts of violence committed by the victim is admissible. However, as a condition precedent to the admissibility of such evidence, the defendant must first present viable evidence of the necessity of self-defense. This logically extends to defense of others. State v. Stone, 73 N.C. App. 691, 327 S.E.2d 644, cert. denied, 313 N.C. 610, 330 S.E.2d 617 (1985).

If defendant seeks to offer evidence for the purpose of showing that the victim was the aggressor, it must be done through testimony concerning the victim's general reputation for violence, but this rule does not render admissible evidence of specific acts of violence which have no connection with the homicide. State v. Corn, 307 N.C. 79, 296 S.E.2d 261 (1982).

Where the defendant in a homicide prosecution has offered evidence tending to show self-defense, testimony by him of specific acts of violence committed by the deceased in his presence or of which the defendant had knowledge prior to the homicide is admissible to show the deceased's character as a violent and dangerous fighting man, in order to permit the jury to determine whether the defendant acted under a reasonable apprehension of danger to his person or his life. State v. Barbour, 295 N.C. 66, 243 S.E.2d 380 (1978).

The trial court's actions in excluding a witness's testimony regarding specific acts of violence by the deceased which were not shown to be within defendant's knowledge prior to the homicide and striking her statements as to the deceased's violent character based solely on her personal experience were correct, since specific acts and a witness's personal opinion are not admissible to show another person's character as evidence of his conduct on a particular occasion. State v. Barbour, 295 N.C. 66, 243 S.E.2d 380 (1978).

Evidence to Be Interpreted in Light Most Favorable to Defendant. - In determining whether there was any evidence of self defense presented, the evidence must be interpreted in the light most favorable to the defendant. State v. Gappins, 320 N.C. 64, 357 S.E.2d 654 (1987).

Error in Preventing Defendant from Testifying About Fear for Life. - In first-degree murder case where defendant was prevented from testifying to an essential element of self-defense, his fear for his life, this was error and the court granted a new trial. State v. Reed, 324 N.C. 535, 379 S.E.2d 828 (1989).

The State bears the burden of proving that defendant did not act in self-defense; to survive a motion to dismiss, the State must therefore present sufficient substantial evidence which, when taken in the light most favorable to the State, is sufficient to convince a rational trier of fact that defendant did not act in self-defense. State v. Hamilton, 77 N.C. App. 506, 335 S.E.2d 506 (1985).

When the issue of self-defense is raised, the State continues to have the burden of proving each element of the crime of murder in the second degree beyond a reasonable doubt. Simultaneously, the additional burden is added of proving malice based on inferences rather than presumptions. State v. McLaurin, 46 N.C. App. 746, 266 S.E.2d 406 (1980).

The burden was on the State to prove beyond a reasonable doubt that defendant did not act in self-defense, there being evidence in the case that he did. State v. Potter, 295 N.C. 126, 244 S.E.2d 397 (1978).

In a conviction of first-degree felony murder under G.S. 14-17 based on discharging a firearm into an occupied vehicle under G.S. 14-34.1, the jury instructions did not deprive defendant of his defense of self-defense but properly placed the burden of proof on the State as to self-defense, with respect to both the degrees of homicide and as to the firing into an occupied vehicle. 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).

Such Burden May Not Be Shifted to Defendant. - On review of a conviction for second-degree murder the Supreme Court of North Carolina erred in declining to hold retroactive the rule in Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975), which requires the State to establish all elements of a criminal offense beyond a reasonable doubt, and which invalidates presumptions that shift the burden of proving such elements, including self-defense, to the defendant. Hankerson v. North Carolina, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 306 (1977).

Instruction Placing Burden of Proving Self-Defense on Defendant Unconstitutional. - In a prosecution for second-degree murder, an instruction placing the burden of proving self-defense upon the defendant was constitutionally infirm, since North Carolina considers unlawfulness, or the absence of self-defense, to be an element of murder. Wynn v. Mahoney, 600 F.2d 448 (4th Cir. 1979), cert. denied, 444 U.S. 950, 100 S. Ct. 423, 62 L. Ed. 2d 320 (1979).

When Defendant Is Entitled to Instruction on Self-Defense. - A defendant is entitled to an instruction on self-defense if there is any evidence in the record from which it can be determined that it was necessary or reasonably appeared to be necessary for him to kill his adversary in order to protect himself from death or great bodily harm. If, however, there is no evidence from which the jury reasonably could find that the defendant in fact believed that it was necessary to kill his adversary to protect himself from death or great bodily harm, the defendant is not entitled to have the jury instructed on self-defense. It is for the court to determine in the first instance as a matter of law whether there is any evidence that the defendant reasonably believed it to be necessary to kill his adversary in order to protect himself from death or great bodily harm. State v. Bush, 307 N.C. 152, 297 S.E.2d 563 (1982).

When the State or defendant produces evidence that defendant acted in self-defense, the question of self-defense becomes a substantial feature of the case requiring the trial judge to state and apply the law of self-defense to the facts of the case. 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).

If the evidence is insufficient to evoke the doctrine of self-defense in a prosecution for first-degree murder, the trial judge is not required to give instructions on that defense even when specifically requested. 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).

Where there is evidence that defendant acted in self-defense, the court must charge on this aspect, even though there is contradictory evidence by the State or discrepancies in defendant's evidence. State v. Dooley, 285 N.C. 158, 203 S.E.2d 815 (1974).

If the court determines as a matter of law that there is no evidence in the record from which the jury could find that the defendant reasonably could have believed it to be necessary to kill to protect himself from death or great bodily harm, then the defendant is not entitled to an instruction on self-defense. State v. Hughes, 82 N.C. App. 724, 348 S.E.2d 147 (1986).

A defendant is entitled to an instruction on self-defense if there is any evidence in the record which establishes that it was necessary or that it reasonably appeared to the defendant to be necessary to kill in order to protect himself from death or great bodily harm. State v. Hughes, 82 N.C. App. 724, 348 S.E.2d 147 (1986).

When defendant's evidence is sufficient to support an instruction on self-defense, the instruction must be given, even though the State's evidence is contradictory. State v. Hughes, 82 N.C. App. 724, 348 S.E.2d 147 (1986).

A defendant is entitled to an instruction on perfect self defense as an excuse for a killing when evidence is presented tending to show that, at the time of the killing: (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; and (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; and (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. Gappins, 320 N.C. 64, 357 S.E.2d 654 (1987).

Where there is no evidence from which the jury reasonably could find that the defendant in fact believed that it was necessary to kill his adversary to protect himself from death or great bodily harm, the defendant is not entitled to have the jury instructed on self defense. State v. Blankenship, 320 N.C. 152, 357 S.E.2d 357 (1987); State v. Gappins, 320 N.C. 64, 357 S.E.2d 654 (1987).

Before defendant is entitled to an instruction on self-defense, two questions must be answered in the affirmative: (1) Is there any evidence that the defendant in fact formed a belief that it was necessary to kill her adversary in order to protect herself from death or great bodily harm, and (2) If so, was that belief reasonable? If both queries are answered in the affirmative, then an instruction on self-defense must be given. 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).

Request Is Unnecessary. - As the defense of self-defense was a substantial and essential feature of the case arising on defendant's evidence, no special prayers for instructions were required, and the judge's failure to charge with respect thereto was prejudicial error, and entitled defendant to a new trial. State v. Todd, 264 N.C. 524, 142 S.E.2d 154 (1965).

The trial court is required to charge on self-defense, even without a special request, when, but only when, there is some construction of the evidence from which could be drawn a reasonable inference that the defendant assaulted the victim in self-defense. 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).

When Instruction on Imperfect Self-Defense to Be Given. - A defendant is entitled to an instruction on imperfect self defense only if the first two elements of perfect self defense are shown to exist. State v. Gappins, 320 N.C. 64, 357 S.E.2d 654 (1987).

Excessive Force Basis for Imperfect Self-Defense. - Whether defendant used excessive force is a question for the jury to determine; thus, the trial court properly instructed jury that if it found defendant to have used excessive force in defending himself, he was entitled, at most, to the defense of imperfect self-defense. 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).

Instruction on Defense of Another. - North Carolina law recognizes that a person may not only take life in his own defense, but he may also do so in defense of another who stands in a family relation to him. The failure to instruct the jury on this fundamental issue constitutes prejudicial error. State v. Spencer, 21 N.C. App. 445, 204 S.E.2d 552 (1974).

Instruction on Self-Defense Required. - Where the State's evidence presented testimony which would have permitted, but not required, the jury to find that: (1) Defendant was without fault in bringing on the difficulty, (2) deceased was armed with and first assaulted defendant with a deadly weapon, (3) the fatal blow was struck during a struggle for the weapon first used by the deceased and (4) the defendant used such force as was necessary or as appeared to him to be necessary to save himself from death or great bodily harm, the evidence was sufficient to require the trial judge to state and apply the law of self-defense to the facts of the case and the court's failure to so do constituted prejudicial error. State v. Deck, 285 N.C. 209, 203 S.E.2d 830 (1974).

Defendant on trial for second degree murder held entitled to an instruction on self-defense. State v. Hayes, 88 N.C. App. 749, 364 S.E.2d 712 (1988).

Where there was testimony that 1) defendant and decedent resided in the same house; 2) defendant loaded a gun in fear that decedent's father was coming to the house to "cut" her; 3) defendant saw decedent approaching the house with what appeared to her to be a pipe or tire iron in his hand; 4) decedent and defendant argued and decedent threatened defendant's life; and 5) defendant shot decedent as he was coming at her with a pipe raised in his hand, it was error for the court to fail to submit the question and to charge upon defendant's right to stand her ground without retreating. State v. Hearn, 89 N.C. App. 103, 365 S.E.2d 206 (1988), distinguishing State v. Bennett, 67 N.C. App. 407, 313 S.E.2d 277 (1984), which held that a trial court's refusal to instruct the jury that there was no duty to retreat was not in error because there was uncontradicted evidence that defendant was the initial aggressor.

Defendant who undeniably was the aggressor in the final confrontation when he went to victim's trailer about 3 a.m., woke him, and shot him to death, believing it necessary to kill victim before victim killed him, was not entitled to an instruction on the doctrine of imperfect self-defense, because he was the aggressor with murderous intent in the fatal confrontation. State v. Mize, 316 N.C. 48, 340 S.E.2d 439 (1986).

In a prosecution for first-degree murder, evidence of powder burns on defendant's hands, which at most permitted an inference that defendant struggled for possession of the murder weapon before the fatal shots were fired, was insufficient to require an instruction to the jury on self-defense. 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 trial court was correct in refusing to instruct the jury on either perfect or imperfect self defense, where the defendant's evidence tended to show that the shooting was an accident. State v. Blankenship, 320 N.C. 152, 357 S.E.2d 357 (1987).

Where evidence clearly tended to show that defendant was the aggressor the court did not err by instructing jury that self-defense would not be available to defendant if he were found to be aggressor. 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).

Court did not err by refusing to give jury instruction concerning right of a person who is without fault in a situation to stand his ground, with no duty to retreat, when in his own home where there was no evidence suggesting that defendant was assaulted or attacked by victim at time of shooting. 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).

Defendant was awarded a new trial on charges of second degree murder because there was testimony from the prosecution's witnesses that defendant returned fire only after a person in the car shot at defendant. According to such evidence, defendant was not the initial aggressor and his right to stand his ground was at least a substantial feature of his defense of self-defense; because this instructional error had a probable impact on the jury's finding of guilt, the error was prejudicial, the trial court's failure to give the instruction was thus plain error. State v. Davis, 177 N.C. App. 98, 627 S.E.2d 474 (2006).

Instruction on Self-Defense Not Required. - Where defendant did not testify and presented absolutely no evidence, either circumstantial or direct, which would establish the necessity of his killing the victim but, instead, defendant relied on permissible inferences from testimony elicited on cross-examination of the State's witnesses; and where the evidence established that defendant, at some point, introduced a knife into the fight and stabbed the victim, the trial court's decision not to give an instruction on self-defense was proper. State v. Stone, 104 N.C. App. 448, 409 S.E.2d 719 (1991), cert. denied, 330 N.C. 617, 412 S.E.2d 94 (1992).

If there is no evidence from which a jury reasonably could find that the defendant in fact believed that it was necessary to kill to protect another from death or great bodily harm, the defendant is not entitled to have the jury instructed on either perfect or imperfect defense of another. State v. Perry, 338 N.C. 457, 450 S.E.2d 471 (1994).

Trial court did not err in declining defendant's request to instruct the jury on either the affirmative defense of perfect self-defense or imperfect self-defense because defendant's own depictions of his act of killing the victim as an accident, his decision to obtain a knife due to being motivated by fear, and his intention to use the knife to persuade the victim to leave his premises established it was not appropriate for defendant to receive the benefit of an instruction on self-defense. State v. Harvey, 372 N.C. 304, 828 S.E.2d 481 (2019).

Requirements for a jury instruction on self-defense did not exist; defendant failed to present evidence that he formed a reasonable belief that it was necessary for him to fatally stab the victim in order for defendant to protect himself from death or great bodily harm because there was no evidence from which a jury could reasonably make such a finding so as to entitle defendant to have the jury to be instructed on self-defense. State v. Harvey, 372 N.C. 304, 828 S.E.2d 481 (2019).

Defendant's testimony that he did not recall shooting the victim, combined with his expert's testimony that defendant acted involuntarily, defeated his self-defense argument, and the trial court did not err in instructing the jury that it could not find defendant guilty if he was not able to exercise voluntary control of his actions. State v. Yarborough, - N.C. App. - , 843 S.E.2d 454 (2020).

Instructions as to Implication from Use of Deadly Weapon. - Jury instructions in a first degree murder case, that told the jury that if they found that defendant killed victim intentionally with a deadly weapon, it was "implied in law" that the killing was done with malice, constituted prejudicial error, as they essentially eliminated his defense of self-defense from trial. Bush v. Stephenson, 669 F. Supp. 1322 (E.D.N.C. 1986), aff'd without op., 826 F.2d 1059 (4th Cir. 1987).

Where jury could have logically deduced from instruction of self-defense that defendant was under a duty to retreat in his own home if the assault upon him was not murderous, defendant deserved a new trial due to error in the charge. State v. Boswell, 24 N.C. App. 94, 210 S.E.2d 129 (1974).

Questions for Jury. - The reasonableness of defendant's belief that self-defense is necessary is to be determined by the jury from the facts and circumstances as they appeared to the accused at the time of the killing. State v. Deck, 285 N.C. 209, 203 S.E.2d 830 (1974); 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 jury is permitted to consider all facts and circumstances, including evidence of self-defense, in determining whether a killing was unlawful. State v. McLaurin, 46 N.C. App. 746, 266 S.E.2d 406 (1980).

The evidence was not sufficient to warrant an instruction on either perfect or imperfect self-defense where defendant failed to present evidence to support a finding that he in fact formed a belief that it was necessary to kill the victim in order to protect himself from death or great bodily harm, nor was there evidence that if defendant had formed such a belief, the belief was reasonable under the circumstances; defendant's own statement acknowledged that the victim was unarmed and walking away from defendant when defendant shot him in the back, and thus, defendant was not facing an imminent threat of death or great bodily harm from the victim when defendant fired the fatal shot. State v. Ross, 338 N.C. 280, 449 S.E.2d 556 (1994).

Defendant was not entitled to instruction on voluntary manslaughter based on imperfect self-defense where the evidence showed defendant shot the unarmed victim in the back as the victim was walking away from defendant. There was no evidence that defendant believed it necessary to kill the victim in order to save himself, and if defendant had presented evidence of such a belief, the belief would not have been reasonable under the circumstances. State v. Exxum, 338 N.C. 297, 449 S.E.2d 554 (1994).

VII. EVIDENCE.

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A. IN GENERAL.

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Circumstantial Evidence Is Admissible. - Circumstantial evidence may be used in homicide cases to establish the cause of death and the criminal agency. State v. Lawson, 6 N.C. App. 1, 169 S.E.2d 265 (1969).

Circumstances immediately connected with the killing by the defendant, the viciousness and depravity of his acts and conduct attending the killing, are evidence of malice and are properly considered. State v. Fleming, 296 N.C. 559, 251 S.E.2d 430 (1979).

And May Be Used to Prove Corpus Delicti. - The death, the felonious cause of death, and the identification of an accused as the person who caused the death can all be shown by circumstances from which these facts might reasonably be inferred. If the evidence is only circumstantial, it should be so strong and cogent that there can be no doubt of the death. 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).

But circumstantial evidence must exclude every reasonable hypothesis of innocence. See 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).

Applicability of Reasonable Doubt Standard to Circumstantial Evidence. - The convincing effect of circumstantial evidence on the mind of the jury is measured by the same standard of intensity required of any other evidence: the jury must be convinced beyond a reasonable doubt as to every element of the crime before they find the defendant guilty of it, whether the evidence is wholly circumstantial, only partly so, or entirely direct. 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).

Defendant cannot deprive State of right to show all the circumstances of homicide by admitting the bare facts as to identity, the location where the body was found, its general condition and the cause of death. 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).

Failure to Produce or Contradict Evidence. - Although the defendant's failure to take the stand and deny the charges against him may not be the subject of comment, the defendant's failure to produce exculpatory evidence or to contradict evidence presented by the State may properly be brought to the jury's attention by the State in its closing argument. State v. Taylor, 337 N.C. 597, 447 S.E.2d 360 (1994).

Improper Reference to Defendant's Silence. - Because the State wrongfully referred to the defendant's silence in the face of the agent's accusation of murder, and it allowed the jury to infer guilt and lack of remorse through defendant's exercise of his constitutional right to silence, the testimony should have been excluded. State v. Quick, 337 N.C. 359, 446 S.E.2d 535 (1994).

Proper Reference to Defendant's Silence. - The defendant's pre-Miranda right to counsel could be used against him in his murder trial; in other words, his refusal to speak with a youth detective without his lawyer could be used to rebut his earlier voluntary statement that he "didn't mean to do it." State v. Salmon, 140 N.C. App. 567, 537 S.E.2d 829 (2000), cert. denied, 353 N.C. 394, 547 S.E.2d 424 (2001).

Where a prosecutor, during cross-examination in a second-degree murder trial, questioned defendant on the reason for omitting from a voluntary discussion with a deputy such important facts as that the victim had been drunk, was possibly on cocaine, and had threatened defendant's life several times prior to the shooting, defendant's right to remain silent was not violated, because the cross-examination questions did not constitute an impermissible comment upon the invocation of the right, and any error was harmless. State v. Ezzell, 182 N.C. App. 417, 642 S.E.2d 274, cert. denied, appeal dismissed, 361 N.C. 432, 649 S.E.2d 390 (2007).

Instruction as to Circumstantial Evidence. - While circumstantial evidence is sufficient to justify a conviction when, and only when, the circumstances proved are consistent with the hypothesis of guilt and inconsistent with every other reasonable hypothesis, no set form of words is required to be used in conveying to the jury this rule relating to the degree of proof required for conviction upon circumstantial evidence. 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).

In the absence of a request to do so, the failure of the court to instruct the jury regarding circumstantial evidence, or as to what such evidence should show, will not be held for reversible error, if the charge is correct in all other respects as to the burden and measure of proof. 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).

Evidence Favorable to Defendant - In defendant's trial on charges of conspiracy to commit first degree murder, attempted first degree murder, and assault with a deadly weapon with intent to kill, the State did not have a duty to locate evidence favorable to defendant and the trial court did not err by denying defendant's request that the State determine the identities of mental health professionals who were treating a prosecution witness and to provide defendant with that information, or by denying defendant access to mental health records concerning the witness that were made available to the court, after the court reviewed those records in camera and decided they did not contain exculpatory information. State v. Lynn, 157 N.C. App. 217, 578 S.E.2d 628 (2003).

Exculpatory Statements. - It is well established that when the State introduces into evidence a defendant's confession containing exculpatory statements which are not contradicted or shown to be false by any other facts or circumstances in evidence, the State is bound by the exculpatory statements. State v. Joyner, 329 N.C. 211, 404 S.E.2d 653 (1991).

A defendant's statement was not exculpatory where it in no way indicated that defendant was provoked to shoot or that his action was reflexive. State v. Joyner, 329 N.C. 211, 404 S.E.2d 653 (1991).

Inculpatory Statements Admitted Where Voluntarily Made - Defendant's motion to suppress post-arrest inculpatory statements was properly denied in his trial for first-degree murder and for robbery with a dangerous weapon where the totality of the circumstances indicated that defendant had voluntarily made the statements, that his waiver of his Miranda rights was voluntary, intelligent, and knowingly made, that he never asked for counsel, that the conditions of the interview were of a non-coercive nature, that he was not on any substance or in need of food or bathroom breaks, and the fact that he had subnormal mental capacity did not, alone, render the statement incompetent; accordingly, there was no violation of his rights under U.S. Const. amend. V or N.C. Const. Art. I, § 23 and suppression of his statements was not required. State v. Mahatha, 157 N.C. App. 183, 578 S.E.2d 617, cert. denied, 357 N.C. 466, 586 S.E.2d 773 (2003).

Expert Testimony. - Expert testimony was properly excluded where it would have directed the jury's attention away from defendant's actual conduct and confused it with evidence unrelated to the legality of the arrest or the force the officers used in attempting to apprehend defendant. State v. Harden, 344 N.C. 542, 476 S.E.2d 658 (1996).

Expert Medical Testimony - Child Abuse. - Testimony of a physician in a prosecution for the murder of a two-year-old child that the bruises on the child's chest did not form the typical bruising pattern normally sustained by children in day-to-day activities, and the opinion of another physician that the child was a "battered" child, and his explanation of that term, were well within the bounds of permissible expert medical testimony. State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978).

In a prosecution of defendant for the murder of his 18-month-old step-daughter, the trial court did not err in admitting the testimony of three doctors who opined that decedent's injury was probably not caused by a fall down a flight of stairs, since all three medical experts were in a better position to have an opinion on the cause of the deceased's injuries than the jury because of their medical training and their experience in observing and treating skull fractures; the witnesses stated only their opinions as to the possibilities, not the certainties, of the cause of deceased's injuries; and none of the three experts made any statement as to their opinion of defendant's guilt or innocence. State v. Brown, 300 N.C. 731, 268 S.E.2d 201 (1980).

Same - Bite Marks. - In a prosecution for first-degree murder, the trial court did not err in allowing an expert witness to testify that bite marks appearing on victim's body were made by defendant's teeth, since the expert witness did not rely on untested methods or unproved hypotheses, but applied scientifically established techniques of dentistry and photography to determine whether the bite marks were caused by defendant's teeth. State v. Temple, 302 N.C. 1, 273 S.E.2d 273 (1981).

Same - Cause of Death. - In a prosecution for murder, the witness's position as assistant medical examiner and his testimony regarding the number of other cases he had seen indicated sufficient expertise such that the trial court did not err in admitting his opinion of the cause of death. State v. Hamilton, 77 N.C. App. 506, 335 S.E.2d 506 (1985).

Same - Intent to Kill. - Admission of psychiatrist's testimony with respect to defendant's specific intent to kill was reversible error. However, where the jury found that defendant was guilty of murder in the first degree both under the theory of premeditation and deliberation and under the theory of felony murder, only the jury's finding that defendant was guilty of murder based on premeditation and deliberation would be set aside. State v. Johnson, 317 N.C. 343, 346 S.E.2d 596 (1986), decided under the law as it obtained prior to the effective date of Chapter 8C.

Testimony of expert for the State that defendant was capable of forming the specific intent to kill was not error. State v. Hedgepeth, 330 N.C. 38, 409 S.E.2d 309 (1991).

Doctor's testimony regarding the manner and duration of death by strangulation was competent, admissible, and relevant to show the manner and means by which the killing was carried out, with respect to whether the killing was a premeditated and deliberate murder. State v. Drayton, 323 N.C. 585, 374 S.E.2d 262 (1988).

Evidence Sufficient to Prove Accessory Before the Fact. - Evidence held sufficient to convict defendant of being an accessory before the fact to murder committed by his teenage girlfriend by burning her grandparents' house. State v. Johnson, 340 N.C. 32, 455 S.E.2d 644 (1995).

Evidence of Killing in Perpetration of Felony. - In a prosecution for murder in the first degree, testimony that in his voluntary confession defendant stated he entered deceased's house to rape her was competent to show that killing was done in perpetration or attempt to perpetrate rape, which constitutes murder in first degree without proof of premeditation and deliberation. State v. King, 226 N.C. 241, 37 S.E.2d 684 (1946).

Evidence tending to show that the prisoner killed the deceased in the perpetration or attempt to perpetrate a robbery is expressly made competent by this section and may be considered by the jury in determining the degree of crime, and whether the accused committed the highest felony or one of lower degree. State v. Westmoreland, 181 N.C. 590, 107 S.E. 438 (1921).

Proving Premeditation and Deliberation. - Premeditation and deliberation ordinarily must be proved by circumstantial evidence, such as the absence of provocation by the victim, the conduct of the defendant before and after the killing, ill will or other difficulties between the parties, or evidence that the killing was done in a brutal manner. State v. Artis, 325 N.C. 278, 384 S.E.2d 470 (1989), sentence vacated and remanded for further consideration at, 494 U.S. 1023, 110 S. Ct. 1466, 108 L. Ed. 2d 604 (1990), in light of State v. Dillard, 90 N.C. App. 318, 368 S.E.2d 442 (1988).

Premeditation and Deliberation Shown. - Fact that defendant carried a loaded .32-caliber pistol for several days prior to robbery and murder, and threatened two persons with this weapon during two armed robberies just days before he killed victim with it, supported inference of premeditation and deliberation, as did defendant's conduct in removing money and keys from victim and money from cash register after he shot the victim while he lay bleeding on the floor. 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 of premeditation and deliberation held sufficient to support first-degree murder conviction of 14 year old defendant who killed and robbed stepfather who drank and abused his family. State v. Bunnell, 340 N.C. 74, 455 S.E.2d 426 (1995).

Evidence held sufficient to permit a reasonable jury to find beyond a reasonable doubt that defendant shot the victim with premeditation and deliberation and was guilty of first-degree murder. State v. Baity, 340 N.C. 65, 455 S.E.2d 621 (1995).

The fact that one of two defendants drew his pistol, pointed it at victim, a pawnshop clerk and then told him, "Don't even try it," prior to shooting him was sufficient evidence of premeditation and deliberation to support a charge of first-degree murder. State v. Davis, 340 N.C. 1, 455 S.E.2d 627, cert. denied, 516 U.S. 846, 116 S. Ct. 136, 133 L. Ed. 2d 83 (1995).

Each element of first-degree murder, including premeditation and deliberation, was positively supported by the evidence where the day before child was killed, defendant grabbed the crying child, swung him out over the water and only when two fishermen spotted defendant did he put him down, remarking that he would finish what he wanted to do later and on the day of the murder, defendant threatened to kill both mother and child while he physically assaulted them. State v. Walls, 342 N.C. 1, 463 S.E.2d 738 (1995), cert. denied, 517 U.S. 1197, 116 S. Ct. 1694, 134 L. Ed. 2d 794 (1996).

The evidence was sufficient to establish that the defendant acted with premeditation and deliberation where there was evidence of ill will between the defendant and the victim resulting from a previous altercation and the evidence showed that the defendant shot the victim six times, three of the wounds to the head, and at least one shot to the victim's head was fired with the muzzle of the gun pressed against the victim's skin, inflicted while the victim was lying helpless on the ground, thus showing a conscious decision on the part of the defendant to ensure that his victim was dead. State v. McCray, 342 N.C. 123, 463 S.E.2d 176 (1995).

Where defendant shot the victim as the victim moved toward his (victim's) truck, defendant then shot the victim several times while chasing him through the woods and shot him in the head a number of times at close range while he was helpless on the ground, and the victim was discovered face-down on the ground with his arms folded up under his face and upper body, the evidence was sufficient to warrant an instruction on premeditated and deliberate first-degree murder. State v. Gibson, 342 N.C. 142, 463 S.E.2d 193 (1995).

The State adequately established intent, malice, premeditation and deliberation where the defendant approached the victim several hours after the two had been involved in an altercation, got out of the car, pointed a gun at him, shot at the victim, first missing and then hitting him in the leg, and then continued to approach him with an angry look on his face, only retreating at the urging of his aunt. State v. Peoples, 141 N.C. App. 115, 539 S.E.2d 25 (2000).

Evidence in attempted first-degree murder conviction was sufficient to show premeditation and deliberation on defendant's part when defendant refused to be handcuffed by an officer, struck the officer, struggled with the officer, took the officer's handgun out of its holster after repeated attempts, aimed the handgun at the officer, and shot the officer in the hand. State v. Haynesworth, 146 N.C. App. 523, 553 S.E.2d 103 (2001).

Deliberation and premeditation in the victim's murder were shown by the fact that defendant took a revolver to a meeting with the victim, indicative of some preparation and intent to do harm to the victim; his statement that "she was going to take my kids" demonstrated ill will or previous difficulties. State v. Williams, 151 N.C. App. 535, 566 S.E.2d 155 (2002), cert. denied, 356 N.C. 313, 571 S.E.2d 214 (2002).

In a murder prosecution, evidence of defendant's intent to kill was sufficient when it showed: (1) ill-will between defendant and the victim, based on the warrants they had obtained against each other, (2) defendant's statement to another that he was going to shoot the victim, (3) defendant's statement to another that he would rather see the victim dead than with another person, and (4) defendant shot the victim twice in the back as she was attempting to flee him. State v. McClary, 157 N.C. App. 70, 577 S.E.2d 690, appeal dismissed, cert. denied, 357 N.C. 466, 586 S.E.2d 466 (2003).

Although the trial court erred in admitting the hearsay statements of the witness, the error was harmless under G.S. 15A-1443(b) given the presence of overwhelming evidence of premeditation required for the conviction of first-degree murder; this evidence included the fact that defendant brought the murder weapon to the residence where the murder occurred, that defendant stabbed or lacerated the victim 51 times, and that the responding police officer saw that defendant's clothes were heavily blood stained. State v. Champion, 171 N.C. App. 716, 615 S.E.2d 366 (2005).

Jury could determine deliberation and premeditation beyond a reasonable doubt to support defendant's convictions for attempted murder and assault with a deadly weapon with intent to kill or inflicting serious injury as: (1) defendant entered the victim's house without the victim's permission; (2) a fight resulted when defendant broke the victim's television, and defendant pulled a knife on the victim; (3) defendant's girlfriend testified that ill-will had developed between defendant and the victim; (4) defendant left his house with a gun in his truck; and (5) after shooting the victim in the shoulder yelled out, "I got one now and I got one more to go." 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).

In a case in which a jury convicted defendant of first degree murder of victim A, defendant unsuccessfully argued that the court erred in denying his motion to dismiss the charge of first degree murder on the grounds that the evidence was insufficient to establish every element of the crime. Defendant killed victim A after advancing from his hide-out in a wooded area, going back into the home, and killing victim B; thus, the evidence showed a time lapse for reflection during which defendant decided to go back into the home armed with the victim B's gun, and forensic evidence showed that victim A was shot twice at close range, which required multiple pulls of the trigger. State v. Stitt, 201 N.C. App. 233, 689 S.E.2d 539 (2009), review denied 364 N.C. 246, 699 S.E.2d 920, 2010 N.C. LEXIS 493 (2010).

Evidence was sufficient to convict defendant of first-degree murder based on premeditation and deliberation, as it established that he shot the victim eight times, that there was no provocation, and that he went to the victim's home with the express purpose of committing robbery. State v. Rogers, 227 N.C. App. 617, 742 S.E.2d 622 (2013).

Trial court did not err by denying defendant's motion to dismiss a first degree murder charge based upon the theory of premeditation and deliberation because the State of North Carolina presented sufficient evidence to put the issue of premeditation and deliberation before the jury as the evidence showed that defendant got a ride to where the victim was, approached the car wherein defendant was seated, exchanged words with the driver, pulled out a gun, opened a car door, shot the unarmed victim four time, and fled the scene. State v. Hicks, 241 N.C. App. 345, 772 S.E.2d 486 (2015).

Even assuming arguendo that an instruction on flight was improper, it did not prejudice defendant; evidence that a bullet from defendant's gun went through the victim's abdomen and lodged in his underwear, combined with defendant's own confession to law enforcement, provided overwhelming evidence that defendant committed a murder. In addition, the trial court's instruction correctly informed the jury that proof of flight was not sufficient by itself to establish guilt and would not be considered as tending to show premeditation and deliberation. 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 of Prior Crime as Indicative of Intent. - Evidence of the defendant's participation in a prior armed robbery is admissible for the purpose of showing intent in a prosecution for murder committed during the perpetration or attempted perpetration of a robbery. State v. May, 292 N.C. 644, 235 S.E.2d 178, cert. denied, 434 U.S. 928, 98 S. Ct. 414, 54 L. Ed. 2d 288 (1977).

Evidence of Prior Abuse of Victim. - Evidence that, on various occasions during approximately three and one-half years prior to her death, defendant had intentionally inflicted personal injuries upon his wife was admissible as bearing on intent, malice, motive, premeditation and deliberation on the part of the prisoner. State v. Moore, 275 N.C. 198, 166 S.E.2d 652 (1969).

In a prosecution for second-degree murder, where the victim was a five-year-old child who died as a result of injuries to her head which could have been caused by a beating on one or several occasions by the defendant, previous acts of physical abuse were competent to show defendant's predisposition to commit the violent act complained of in the indictment. Moreover, the evidence of child abuse was competent to show the state of mind necessary to establish malice, an essential element of second-degree murder. State v. Vega, 40 N.C. App. 326, 253 S.E.2d 94, appeal dismissed and cert. denied, 297 N.C. 457, 256 S.E.2d 809, cert. denied, 444 U.S. 968, 100 S. Ct. 459, 62 L. Ed. 2d 382 (1979).

Witness' testimony that defendant told her he had exposed himself and masturbated in the presence of her three-year-old daughter was admissible as evidence of the defendant's felonious intent in kidnapping 10-year-old murder victim, and was sufficient evidence to support the defendant's conviction for first-degree murder under the felony murder theory. State v. Coffey, 326 N.C. 268, 389 S.E.2d 48 (1990), cert. denied, 421 S.E.2d 360 (1992).

North Carolina, to prove the disputed issue of defendant's intent to kill after defendant's forensic psychologist testified that defendant was unable to form the specific intent to kill, elicited testimony on defendant's prior misconduct toward his wife; thus, the psychologist's testimony regarding the statements of defendant's prior bad acts was properly admitted under G.S. 8C-1-404(b). 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).

Evidence of Prior Similar Act. - Where defendant was on trial for murdering his 21/2 year old niece, evidence that 6 months prior defendant became angry with girlfriend's 4 year old son and shook him and threw him into a chair which then slid and hit the wall was relevant to establish defendant's motive and intent in shaking niece and to show absence of mistake on defendant's part. State v. Pierce, 346 N.C. 471, 488 S.E.2d 576 (1997).

Evidence of threats is admissible and may be offered as tending to show premeditation and deliberation, and previous express malice, which are necessary to convict of murder in the first degree. 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).

Evidence of threats against the victim are admissible in evidence to show premeditation and deliberation. 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).

In homicide cases, threats by the accused have always been freely admitted either to identify him as the killer or to disprove accident or justification, or to show premeditation and deliberation. Remoteness in time of the threat does not render the evidence incompetent, but goes only to its weight. State v. Potter, 295 N.C. 126, 244 S.E.2d 397 (1978); 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).

General threats to kill not shown to have any reference to deceased are not admissible in evidence, but a threat to kill or injure someone not definitely designated is admissible in evidence where other facts adduced give individuation to it. 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).

Uncommunicated Threats. - Generally speaking, uncommunicated threats are not admissible in homicide cases. But there are exceptions to the rule which must be considered in light of the facts of the particular case. Such exceptions occur where the evidence has an explanatory bearing on the plea of self-defense. State v. Hurdle, 5 N.C. App. 610, 169 S.E.2d 17 (1969).

In trials for homicide uncommunicated threats are admissible where they tend to throw light on the occurrence and aid the jury to a correct interpretation of the same, and there is testimony ultra sufficient to carry the case to the jury tending to show that the killing may have been done from a principle of self-preservation. State v. Hurdle, 5 N.C. App. 610, 169 S.E.2d 17 (1969).

Defendant's conviction and sentence on a charge of first-degree murder pursuant to G.S. 14-17 was upheld; the trial court properly excluded the victim's uncommunicated threats to defendant into evidence, because defendant failed to put on evidence of self-defense as was required to admit such evidence pursuant to G.S. 8C-1, N.C. R. Evid. 803(3), and defendant did not suffer any prejudice pursuant to G.S. 15A-1443(a) because defendant testified to substantially the same evidence that was contained in the uncommunicated threat. State v. Messick, 159 N.C. App. 232, 585 S.E.2d 392 (2003).

Evidence bearing upon the atrocity of the offense and the callous disregard exhibited by the defendant toward the victim is especially relevant and material when the punishment to be imposed is to be fixed by the jury in its discretion. 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).

Brutal or Vicious Circumstances Permitting Inference of Premeditation. - It was not error to instruct jurors that they could infer premeditation and deliberation from the "brutal or vicious circumstances of the killing" and from defendant's use of "grossly excessive force" where there was evidence of defendant's use of grossly excessive force and he fired a semi-automatic rifle, fully loaded with 16 rounds, seven times at the victim, hitting his target twice. This is enough to show grossly excessive force. State v. Terry, 329 N.C. 191, 404 S.E.2d 658 (1991).

Evidence of Private Prosecution. - In first-degree murder prosecution, the court erred in excluding evidence that wife of deceased had employed private prosecution in the case. State v. White, 286 N.C. 395, 211 S.E.2d 445 (1975).

Use of Admissions Regarding Second-Degree Murder to Prove First-Degree Murder. - Where defendant made affirmative admissions of the existence of malice and unlawfulness by admitting commission of two second-degree murders, there could not possibly be any constitutional transgressions or prejudice in the remarks of either the prosecutor or the trial court concerning the presumption of the existence of those very same elements in the charges of first-degree murder. State v. Pinch, 306 N.C. 1, 292 S.E.2d 203 (1982), cert. denied, 459 U.S. 1156, 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).

Evidence of Malice from Defendant's Statements. - Statements by defendant that he believed the law in Anson County did not prevent the killing of blacks clearly tended to prove malice. State v. Hamilton, 77 N.C. App. 506, 335 S.E.2d 506 (1985).

Conviction Based Largely on Defendant's Own Statements. - Substantial evidence of first-degree murder was presented to sustain defendant's conviction where the forensic pathologist testified that the victim could only have survived a matter of minutes after the infliction of the head wounds and where the defendant stated that he did not see anyone else in the store on the morning of the murder, that the victim was still alive when he saw him lying behind the counter, and that he picked up the stick containing the victim's hair, blood and tissue; his own statements placed him as the person who had access to the victim, the victim's blood, and other physical evidence, making it unnecessary for the police to match fingerprints taken in the store to defendant. State v. Barnett, 141 N.C. App. 378, 540 S.E.2d 423 (2000), appeal dismissed and cert. denied, 353 N.C. 527, 549 S.E.2d 552 (2001).

Letters Showing Financial Motive to Kill Properly Admitted. - Letters were relevant as they indicated that defendant faced financial hardships, and this, coupled with evidence that the victim had threatened to remove defendant from the home and continue to request child support, indicated that the letters made the existence of a financial motive to murder the victim more probable; the court also limited the danger of unfair prejudice by prohibiting the State from publishing to the jury letters which indicated a criminal action against defendant. State v. Holmes, 263 N.C. App. 289, 822 S.E.2d 708 (2018), review denied, 824 S.E.2d 415, 2019 N.C. LEXIS 272 (2019).

Causal Connection Between Assault and Death. - Nonexpert testimony, even without an opinion as to the cause of death, can establish a causal connection between an assault and death sufficient to take the State's case to the jury. State v. Luther, 21 N.C. App. 13, 203 S.E.2d 343, aff'd, 285 N.C. 570, 206 S.E.2d 238 (1974).

Establishing Theory of Acting in Concert. - Where victim was murdered in her own home, evidence of an unidentified latent fingerprint in addition to those of defendant supported the jury instruction concerning the theory of acting in concert. State v. Smart, 99 N.C. App. 730, 394 S.E.2d 475 (1990), discretionary review denied, 328 N.C. 576, 403 S.E.2d 520 (1991).

Evidence of Conspiracy. - Motion to dismiss was properly denied where the evidence showed that defendant drove through an apartment complex in a borrowed car with victim's brother, exited the vehicle in a certain area and returned to the vehicle after gunshots, and the brother fabricated a story to police to avoid identification, there was sufficient evidence to support a finding of conspiracy to commit murder. State v. Brewton, 173 N.C. App. 323, 618 S.E.2d 850 (2005).

Sufficiency of Evidence to Deny Motion to Dismiss. - Evidence tending to show defendant was the perpetrator of the homicide was sufficient to justify the trial court's denial of defendant's motion to dismiss. State v. Demery, 113 N.C. App. 58, 437 S.E.2d 704 (1993).

In an action in which defendants appealed from a judgment of the Wayne County Court which convicted defendants of first-degree murder, there was sufficient evidence to persuade a rational trier of fact of each essential element beyond a reasonable doubt regarding the first defendant; the introduction of evidence showing that defendant said "I'm going to kill this expletive," and that he had the gun when he pursued the victim's car, provided sufficient evidence to support a guilty verdict. State v. Sloan, 180 N.C. App. 527, 638 S.E.2d 36 (2006), appeal dismissed, cert. denied, 361 N.C. 367, 644 S.E.2d 560 (2007), aff'd, 361 N.C. 584, 650 S.E.2d 594 (2007).

Defendant's motion to dismiss was properly denied as there was ample evidence that defendant shot the victim since: (1) defendant and the victim fought with each other before the shooting and defendant pulled a knife on the victim; (2) after the fight, defendant sat in defendant's truck and pointed a gun toward the victim's house; (3) the victim and the victim's brother identified defendant's voice as the voice they heard when the shooting occurred; (4) defendant's girlfriend saw defendant leave in defendant's truck shortly before the shooting; and (5) a .22 rifle and bullets were found in defendant's shop. 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).

Testimony that defendant and the victim wrestled for a gun, which the witness was told was a nine-millimeter, in the victim's bedroom, that defendant was using a smaller gun to hit the victim, and the witness did not see who fired the gunshot that led to the victim's death, was sufficient to support the denial of defendant's motion to dismiss because it was sufficient for the jury to reasonably infer that defendant shot the victim, either with defendant's own gun or the victim's gun, and thus to allow the jury to conclude that defendant acted to cause the victim's death. State v. Williams, 185 N.C. App. 318, 648 S.E.2d 896, review denied, 361 N.C. 704, 653 S.E.2d 878 (2007), appeal dismissed, review denied, 362 N.C. 372, 664 S.E.2d 560 (2008).

As the State presented evidence that defendant retrieved a gun from his vehicle and intentionally fired the gun at defendant, killing him, the State presented sufficient evidence for the jury to infer malice on the part of defendant; thus, the trial court properly denied the motion to dismiss. State v. Banks, 191 N.C. App. 743, 664 S.E.2d 355 (2008).

Evidence that the victim was with defendant less than 10 minutes before the victim was found; defendant was driving the victim's car, which had blood in it; defendant bought bleach shortly after the body was found; the victim's broken cell phones were found behind the store where defendant bought the bleach; and defendant had money with the victim's blood on defendant was sufficient to support the denial of defendant's motion to dismiss the first-degree murder charge. State v. Dawkins, 196 N.C. App. 719, 675 S.E.2d 402 (2009), review denied, 363 N.C. 585, 682 S.E.2d 707 (2009).

Evidence was sufficient to support defendant's conviction of first-degree murder because it showed that: (1) after defendant and his accomplice beat and kicked the victim, he was carried into a bedroom, where he was tied with his hands and feet behind his back; (2) his neck was tied, pulled close to the legs area, and the feet and legs pulled up toward the neck area in the back area, and two pieces of tissue were inserted into his mouth; and (3) due to the severe arching of his back, the victim suffered a fracture in his thoracic spine and ultimately died from a combination of suffocation and strangulation. State v. Bonilla, 209 N.C. App. 576, 706 S.E.2d 288 (2011).

Evidence that defendant, after being kicked in the face in a fight inside the nightclub, became angry, retrieved a 9 mm semi-automatic pistol from under the driver's seat of his car, loaded the gun, and fired seven times toward the big crowd, resulting in the death of a police officer, was sufficient to support the trial court's submission to the jury of a second-degree murder charge. Accordingly, the trial court did not err in denying defendant's motion to dismiss the second-degree murder charge for insufficient evidence. State v. Carter, 212 N.C. App. 516, 711 S.E.2d 515 (2011).

Substantial evidence supported a trial court's denial of defendant's motion to dismiss a first-degree murder charge because defendant was stopped while driving the victim's truck, shoe prints found on the store floor under the victim, as well as, on the victim's clothes were consistent with the soles of shoes found in defendant's possession when he was arrested approximately 24 hours after the murder, fingerprints matching defendant's were found in the store bathroom, and the victim's DNA was found on the cash and shoes defendant had in his possession at the time he was arrested. State v. Kidwell, 218 N.C. App. 134, 720 S.E.2d 795 (2012), review denied, 365 N.C. 564, 724 S.E.2d 909, 2012 N.C. LEXIS 274 (N.C. 2012).

There was substantial evidence to support the denial of defendant's motion to dismiss a first-degree murder charge based on a claim that defendant had committed a premeditated and deliberate act in shooting a victim where the evidence did not demonstrate any provocation on the part of the victim, and the victim's girlfriend testified that defendant simply walked up to the victim, shot him, and then ran. State v. Avent, 222 N.C. App. 147, 729 S.E.2d 708 (2012).

Denial of defendant's motion to dismiss the charge of first-degree murder arising from defendant's act of shooting his wife, which led to the later death of his child was proper because the evidence here established that the child was born alive after the shooting and lived for one month before dying; while the record supported defendant's contention that the bullet did not strike the fetus, his insistence that the emergency cesarean section was performed solely for the safety of the mother was clearly contradicted by the record, and the record supported the conclusion that defendant's shooting of the mother started a foreseeable chain of events that led to the child's death. The State also provided sufficient evidence that defendant acted with premeditation and deliberation. State v. Broom, 225 N.C. App. 137, 736 S.E.2d 802 (2013).

Denial of defendant's motion to dismiss the charge of attempted first-degree murder arising from defendant's act of shooting his wife was proper because the State presented evidence that defendant removed the wife's cell phone from her reach, left the room, returned with a .45 caliber pistol, and shot her in the abdomen with a hollow point bullet; defendant then denied the wife medical assistance for approximately twelve hours. State v. Broom, 225 N.C. App. 137, 736 S.E.2d 802 (2013).

To convict a defendant of first-degree murder, the State presented expert medical testimony by the forensic pathologist, and while he was unable to clinically determine a cause of death, the State presented substantial evidence from which the jury could determine that the cause was the natural result of a criminal act, given the presence of petechiae and bruising, plus the pathologist ruled out suicide, drowning, and electrocution, and defendant's motion to dismiss was properly denied. State v. Holmes, 263 N.C. App. 289, 822 S.E.2d 708 (2018), review denied, 824 S.E.2d 415, 2019 N.C. LEXIS 272 (2019).

There was sufficient evidence from which a reasonable inference of defendant's guilt could be drawn, and thus the trial court did not err in denying defendant's motion to dismiss; his financial hardships, coupled with the victim's threat to end their relationship, were sufficient to show motive, plus he was in the home between the time that the victim returned home the night before and when her body was found the next day, and he had the means of suffocating the victim with the feather pillow found in his room. State v. Holmes, 263 N.C. App. 289, 822 S.E.2d 708 (2018), review denied, 824 S.E.2d 415, 2019 N.C. LEXIS 272 (2019).

Evidence was sufficient to support defendant's conviction of felony murder because a reasonable juror could have concluded that defendant had motive to kill the victim based on the hostility that existed between them, defendant's opportunity to commit the crimes was established by physical evidence at the crime scene and testimony of those who interacted with defendant near the scene shortly after the victim's death, and it was undisputed that, regardless of who fired a weapon into the residence, it resulted in the victim's death. State v. Gray, 261 N.C. App. 499, 820 S.E.2d 364 (2018), review denied, 824 S.E.2d 419, 2019 N.C. LEXIS 263 (2019).

Trial court did not err by denying defendant's motion to dismiss based on insufficient evidence because the deputy testified that she saw defendant point a gun at her face and that she heard a gunshot after ducking behind her dashboard, and the jury could have reasonably inferred that defendant, in a conspiracy with another suspect, attempted to kill the deputy by firing a gun at her. Because intentional failure was not necessary to a charge of conspiracy to commit attempted murder, the State was not required to show that defendant intended to fail in his attempt to take the deputy's life. State v. Lyons, - N.C. App. - , 836 S.E.2d 917 (2019).

State's evidence was sufficient to present the charge of first-degree murder to the jury, as the evidence showed that the victim was killed as the proximate cause of an assault with a deadly weapon, by an accomplice and defendant lying in wait to ambush the victim as he drove through the intersection. State v. Baldwin, - N.C. App. - , - S.E.2d - (Apr. 6, 2021).

Sufficient Circumstantial Evidence. - The State presented sufficient evidence to the jury that the defendant committed the subject crime where the evidence showed that the victim knew his assailant; that the defendant had borrowed money from the victim before; that the defendant's behavior was suspicious to several witnesses, including his mother; that the defendant spent all his paycheck on beer and crack cocaine on the night of the murder; that, after the time of the murder, defendant returned to his friend's house with more cocaine than he possessed before leaving and also with his shirt covered with blood; that defendant related three different stories as to how his shirt got bloody; and that a shoeprint found on the scene could be a match to the defendant's shoe. 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).

Admissible Evidence. - All statements made by defendant were fully authorized by the defendant and did not constitute a breach of the attorney-client privilege or any other right of the defendant and it was not error for the trial court to allow evidence of the defendant's statements to be admitted. State v. McIntosh, 336 N.C. 517, 444 S.E.2d 438 (1994).

In defendant's trial on charges of first degree murder, first degree burglary, second degree kidnapping, and robbery with a dangerous weapon, the trial court properly admitted the videotaped statement that defendant's wife gave to police, pursuant to G.S. 8C-1, N.C. R. Evid. 804(b)(5), after defendant's wife refused to testify for the State at defendant's trial, properly admitted letters one of defendant's co-conspirators wrote to a girlfriend urging the girlfriend to lie about the girlfriend's involvement in the co-conspirator's attempt to conceal evidence of the crime, pursuant to G.S. 8C-1, N.C. R. Evid. 804(b)(3), (b)(5), and properly admitted evidence of similar crimes defendant committed shortly after the murder, pursuant to G.S. 8C-1, N.C. R. Evid. 404(b). State v. Carter, 156 N.C. App. 446, 577 S.E.2d 640 (2003), cert. denied, 358 N.C. 547, - S.E.2d - (2004), cert. denied, 543 U.S. 1058, 125 S. Ct. 868, 160 L. Ed. 2d 784 (2005).

Evidence as to defendant's prior convictions for driving while impaired and driving while license revoked was properly admitted, under G.S. 8C-1, N.C. R. Evid. 404(b), as the evidence was relevant to show malice to support defendant's charge for second degree murder following an auto accident in which defendant was driving while impaired. Further, there was no plain error in the trial court admitting evidence of defendant's empty prescription pill bottle, testimony by an officer identifying the pills from the label, and testimony by a pharmacist about the interaction between the pills and alcohol, as the evidence was relevant to the charges against defendant. State v. Edwards, 170 N.C. App. 381, 612 S.E.2d 394 (2005).

Defendant's first degree murder conviction for stabbing his wife to death was affirmed because defendant's written waiver of his Miranda rights and written confession were made understandingly, knowingly, and voluntarily through a police officer that served as defendant's interpreter. 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).

Evidence permitted the inference that defendant was the aggressor at the time he shot the victim, where, although the evidence showed that the victim initially went to defendant's home and began to argue with him, the evidence also showed that immediately before the victim was shot she was about to leave. State v. Cannon, 341 N.C. 79, 459 S.E.2d 238 (1995).

Evidence of Prior Violent Behavior by Victim When an Accident Defense Used. - In Defendant's trial for second degree murder, trial court properly excluded evidence that defendant's wife had shot her former husband, as defendant relied on a defense of accident, and the wife's alleged violent character had no bearing on whether a rifle fired accidentally. State v. Crawford, 163 N.C. App. 122, 592 S.E.2d 719 (2004), cert. denied, 358 N.C. 734, 601 S.E.2d 867 (2004).

Evidence Held Sufficient to Support Conviction. - Evidence that defendant, a gang member, (1) on one night met with other gang members to participate in an initiation of gang members, (2) participated in obtaining bullets to support gang missions, (3) asked to be allowed to shoot a victim that was abducted by other gang members, and (4) grumbled when he was not chosen to shoot and kill the victim, was sufficient to show that defendant joined with one or more persons to kidnap, rob, assault with a deadly weapon, and attempt to murder the victim, and was constructively present when the crimes were carried out. State v. Tirado, 358 N.C. 551, 599 S.E.2d 515 (2004), cert. denied, 544 U.S. 909, 125 S. Ct. 1600, 161 L. Ed. 2d 285 (2005).

Evidence, including a history of violence and hostility between the parties, testimony from defendant's girlfriend that she thought defendant was going to shoot the victim, and defendant's DNA on a beer can, was sufficient to support defendant's conviction for first-degree murder. State v. Hocutt, 177 N.C. App. 341, 628 S.E.2d 832 (2006).

Sufficient evidence supported a murder conviction where testimony revealed that defendant attacked the victim after the victim had been knocked to the ground by another, that defendant then beat the victim with a rubber mallet, that defendant then stole the shoes off the victim's feet and fled the scene, and that during his flight, defendant stated to others "I killed him, I killed him." State v. Yarrell, 172 N.C. App. 135, 616 S.E.2d 258 (2005).

There was sufficient evidence of malice to support defendant's second-degree murder conviction as: (1) there was evidence that defendant had consumed 9 to 12 beers in a two-hour timeframe; (2) defendant's blood alcohol content was well-above the threshold for driving while impaired; (3) defendant got into a truck, ran over a sign and continued driving; and (4) defendant eventually ran off the road and crashed into the victims' truck. State v. Davis, 197 N.C. App. 738, 678 S.E.2d 385 (2009), aff'd in part and rev'd in part 2010 N.C. LEXIS 585 (2010).

Sufficient evidence supported defendant's attempted first-degree murder conviction, given that defendant told the victim he would kill her if she did not follow his commands, he struck her over the head twice with his gun, he stated on the phone that he had a hostage, and when the victim tried to escape by shutting the front door, defendant shot the door near the doorknob four to six times before kicking the door and yelling. State v. Yarborough, - N.C. App. - , 843 S.E.2d 454 (2020).

Error in admission of victim's statements without cross-examination was harmless. - Defendant's conviction for first-degree murder was upheld on appeal, despite that the trial court erring by admitting the statements of two unavailable robbery victims with regard to their statements to police after the crime, which identified and implicated defendant and three others, without affording defendant the right to confrontation, because the evidence of defendant's guilt was overwhelming, which rendered the trial court's error harmless. State v. Allen, 171 N.C. App. 71, 614 S.E.2d 361 (2005), cert. dismissed, 360 N.C. 66, 621 S.E.2d 875 (2005), cert. denied, appeal dismissed, 360 N.C. 66, 621 S.E.2d 878 (2005).

B. PHYSICAL EVIDENCE.

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Real Evidence Must Be Properly Identified. - Any evidence which is relevant to the trial of a criminal action is admissible but when real evidence (i.e. the object itself) is offered into evidence, it must be properly identified and offered. State v. Winford, 279 N.C. 58, 181 S.E.2d 423 (1971).

Analysis by Expert Witness - In defendant's trial on a charge of first degree murder, the trial court erred by denying defendant's motion for a continuance so she could find an expert to analyze the State's expert's conclusion that there was blood splatter on defendant's clothes which suggested that defendant was present when a victim was struck; the appellate court ordered a new trial because the State did not carry its burden of showing that the trial court's ruling was harmless beyond a reasonable doubt. State v. Barlowe, 157 N.C. App. 249, 578 S.E.2d 660 (2003).

When Clothing Is Admissible. - In cases of homicide or other crimes against the person, clothing worn by the defendant or by the victim is admissible if its appearance throws any light on the circumstances of the crime. State v. Norwood, 289 N.C. 424, 222 S.E.2d 253 (1976).

Clothing of Victim. - The admission into evidence of the articles of clothing found upon a murder victim's body was not error, where the location of the bullet holes in her dress and the presence thereon of stains, identified by an expert witness as powder burns, were material and tended to show that when the shots were fired the pistol was held close to the victim's body. 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).

In a prosecution for first-degree murder, the clothing of deceased is admissible if its appearance throws any light on the circumstances of the crime. State v. Williams, 289 N.C. 439, 222 S.E.2d 242, death sentence vacated, 429 U.S. 809, 97 S. Ct. 45, 50 L. Ed. 2d 69 (1976).

Fingerprints of Codefendant. - In the prosecution of two defendants for armed robbery and murder, there was no merit to one defendant's contention that the trial court erred in admitting evidence of fingerprints of a codefendant found on the murder weapon as well as cards containing his fingerprints which were never linked to the murder weapon, since the evidence of the fingerprints was relevant because the State proceeded upon a theory of acting in concert, and, in criminal cases, every circumstance that is calculated to throw any light upon the supposed crime is admissible. State v. Smith, 301 N.C. 695, 272 S.E.2d 852 (1981).

Fruits of Plain View Seizure. - In a prosecution of first-degree murder, where a State trooper had stopped defendants' car for reckless driving and had subsequently observed the butt of a revolver protruding from under the center armrest, the revolver was properly admissible in evidence as the fruit of a lawful warrantless "plain view" seizure under circumstances requiring no search. State v. Smith, 289 N.C. 143, 221 S.E.2d 247 (1976).

Nontestimonial Identification. - In a prosecution for first-degree murder, the trial court's denial of defendant's motion to suppress nontestimonial identification evidence was without error where, pursuant to an order of the trial court, fingernail scrapings, samples of defendant's head and pubic hair, saliva samples, blood samples, and photographs of any wounds on defendant's body were taken; the order stated defendant's right to counsel; the State stipulated that nothing defendant said during the procedure would be offered into evidence; and defendant was fully advised of his constitutional right to the presence of counsel; and the State was not in violation of any provision of Chapter 15A, Article 14, by not procuring an express waiver from defendant, as the statute does not require an express waiver of the right to have counsel present at a nontestimonial identification procedure. State v. Temple, 302 N.C. 1, 273 S.E.2d 273 (1981).

Photographs - Scene of the Crime. - In a prosecution under this section, where photographs are identified as accurate representations of the scene of the crime by the witness, the photographs are competent in evidence for the purpose of enabling the witness to explain his testimony, and a general objection to the admission of the photographs in evidence cannot be sustained. 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).

Same - Body of Victim. - There was no error in the admission of the two photographs of the body of a murder victim, the court instructing the jury that they were to be considered solely for the purpose of illustrating the testimony of the witness. 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).

In a prosecution for first-degree murder, a photograph is admissible for the purpose of illustrating the testimony of the doctor who examined the deceased. State v. Williams, 289 N.C. 439, 222 S.E.2d 242, death sentence vacated, 429 U.S. 809, 97 S. Ct. 45, 50 L. Ed. 2d 69 (1976).

Photographs and videotape used to illustrate testimony as to the location and condition of victim's body, where each photograph showed something different, none was especially inflammatory, and the total amount of photographic evidence was not excessive, did not prejudice defendant, in light of the overwhelming evidence of defendant's guilt, and in light of his receiving a sentence of life imprisonment, the minimum sentence for first-degree murder. State v. Murphy, 321 N.C. 738, 365 S.E.2d 615 (1988).

Properly authenticated photographs of a homicide victim may be introduced into evidence even if they are gory, gruesome, horrible or revolting, so long as they are used by a witness to illustrate his testimony and so long as an excessive number of photographs are not used solely to arouse the passions of the jury. State v. Murphy, 321 N.C. 738, 365 S.E.2d 615 (1988).

Same - Body in Casket. - The trial court erred in a first-degree murder case in allowing the jury to be shown certain photographs of the victim's body lying in a casket, but such error was harmless beyond a reasonable doubt in view of the overwhelming evidence of defendant's guilt. State v. Temple, 302 N.C. 1, 273 S.E.2d 273 (1981).

Same - Effect of Defendant's Admissions. - Photographs of the victim's body and articles of clothing found upon it were competent notwithstanding the admission by the defendant, through his counsel, in open court, that the body was that of the victim, that it was discovered in a wooded area, partially hidden under boards and an old quilt and in a state of decomposition, and that the cause of death was five gunshot wounds in the abdomen. Notwithstanding these admissions, the circumstances with reference to the shooting of the deceased and the disposition of her body were material upon the question of the degree of the homicide and the decision as to the punishment to be inflicted, if the jury should find the defendant guilty of murder in the first degree. 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).

In a prosecution for first-degree murder, photographs of deceased and the clothing of deceased are admissible despite defendant's contention that since he did not controvert the killing, the photographs and clothing were prejudicial and inflammatory, since the burden was still on the State to prove its case beyond a reasonable doubt so as to convince the jury that there had been an unlawful killing with malice and that the circumstances of the killing justified a finding of premeditation, deliberation and a specific intent to kill. State v. Williams, 289 N.C. 439, 222 S.E.2d 242, death sentence vacated, 429 U.S. 809, 97 S. Ct. 45, 50 L. Ed. 2d 69 (1976).

Same - Gruesome Character. - If a photograph is relevant and material, the fact that it is gory or gruesome, and thus may tend to arouse prejudice, will not alone render it inadmissible. 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).

In a prosecution for homicide, photographs showing the condition of the body when found, the location where found, and the surrounding conditions at the time the body was found are not rendered incompetent by their portrayal of the gruesome spectacle and horrifying events which the witness testifies they accurately portray. State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969), death sentence rev'd, 403 U.S. 948, 91 S. Ct. 2283, 29 L. Ed. 2d 859 (1971); 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).

The fact that a photograph depicts a horrible, gruesome and revolting scene, indicating a vicious, calculated act of cruelty, malice or lust, does not render the photograph incompetent in evidence, when properly authenticated. State v. Duncan, 282 N.C. 412, 193 S.E.2d 65 (1972).

In a prosecution for second-degree murder or involuntary manslaughter photographs depicting the way deceased looked at the hospital the night he died are not inadmissible because they were not made at the time of the event, or because they were gory or gruesome. State v. Cox, 289 N.C. 414, 222 S.E.2d 246 (1976).

In a prosecution for first-degree murder the fact that a photograph depicts a gruesome scene does not render it incompetent. State v. Williams, 289 N.C. 439, 222 S.E.2d 242, death sentence vacated, 429 U.S. 809, 97 S. Ct. 45, 50 L. Ed. 2d 69 (1976).

Same - Excessive Repetition. - Where a prejudicial photograph is relevant, competent and therefore admissible, the admission of an excessive number of photographs depicting substantially the same scene may be sufficient ground for a new trial when the additional photographs add nothing in the way of probative value but tend solely to inflame the jurors. 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).

Map. - In a murder trial where guilt was based on circumstantial evidence, the trial court committed reversible error in refusing to admit into evidence defendant's proposed exhibit, a drawing found by law enforcement officers among victim's personal effects, which included a rough map of the area surrounding defendant's North Carolina home and numerous written notations indicating a possible larceny scheme. The exhibit was clearly relevant to a crucial issue in the case, namely, whether this defendant, and not some other person, was in fact the perpetrator of the crime, and it therefore should have been admitted into evidence at trial. State v. McElrath, 322 N.C. 1, 366 S.E.2d 442 (1988).

Victim's Medical Records - The court examined sealed medical records of the victim, which the victim's hospital asserted as privileged under G.S. 8-53, and concluded that they contained no information exculpatory of defendant's guilt or material to her defense or punishment. State v. Jarrett, 137 N.C. App. 256, 527 S.E.2d 693 (2000).

VIII. INSTRUCTIONS.

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A. IN GENERAL.

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Degree of Proof. - No set formula is required to convey to the jury the fixed principle relating to the degree of proof required for conviction. 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).

A trial judge is not required to define "reasonable doubt" without a request to do so, but if he does undertake to define it, the definition should be in substantial accord with the definitions of this court. State v. Shepherd, 288 N.C. 346, 218 S.E.2d 176 (1975).

The defining of "reasonable doubt" as a possibility of innocence not only was not reversible error but constituted an instruction more favorable to the defendant than the usual definitions such as "fully satisfied," "entirely convinced," or "satisfied to a moral certainty." State v. Wright, 282 N.C. 364, 192 S.E.2d 818 (1972).

Reasonable Doubt as "Honest, Substantial Misgiving". - Instruction in murder trial which read in part "A reasonable doubt, as that term is employed in the administration of criminal law, is an honest, substantial misgiving," was not error. State v. Hudson, 331 N.C. 122, 415 S.E.2d 732 (1992), cert. denied, 506 U.S. 1055, 113 S. Ct. 983, 122 L. Ed. 2d 136, rehearing denied, 507 U.S. 967, 113 S. Ct. 1404, 122 L. Ed. 2d 776 (1993).

Ability to Form Specific Intent. - The trial court committed reversible error in refusing to instruct the jury to consider the defendant's mental condition in connection with his ability to form a specific intent to kill and instead gave the pattern instruction which explains intent as a state of mind or mental attitude which may be inferred from surrounding circumstances rather than by direct evidence. State v. Williams, 116 N.C. App. 225, 447 S.E.2d 817 (1994), cert. denied and appeal dismissed, 339 N.C. 741, 454 S.E.2d 661 (1995).

Defendant's first degree murder conviction for stabbing his wife to death was affirmed because the trial court did not error in giving a jury instruction which limited the purpose of evidence that was introduced regarding defendant's prior bad acts to the determination of defendant's intent. 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).

Inability to Form Specific Intent. - The trial court did not err in instructing the jury that in order to find that defendant could not form a specific intent to commit a felony or that the defendant was mentally incapable of premeditation and deliberation they must find that the defendant was "utterly incapable" (or "utterly unable") of forming a specific intent. 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).

Killing Must Have Been Intentional. - While it was error for the trial court to omit the word "intentionally" before the word "killed" in each instance that the court instructed on the inference of malice from use of a deadly weapon, the omission did not constitute plain error where the instructions, taken as a whole, made it clear that the killing must have been intentional in order for defendant to be convicted of first-degree murder, and essentially all the evidence, both that of the State and defendant, showed that the killing was intentional. State v. Hedgepeth, 330 N.C. 38, 409 S.E.2d 309 (1991).

A charge, in the court's final mandate, that the jury had to be satisfied beyond a reasonable doubt that the killing was with premeditation and deliberation, also charged that the killing had to be intentional. State v. Larrimore, 340 N.C. 119, 456 S.E.2d 789 (1995).

With respect to jury instructions, the phrase "that he intended to kill" is self-explanatory, and absent a special request for instructions from the defendant, the presiding judge was not required to supply its definition. 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).

Instruction Held to Relieve State's Burden of Proving Specific Intent. - Trial court's instruction to the jury that "[t]he phrase intentionally killed refers not to the presence of a specific intent to kill; the sense of the expression is that the act that resulted in death is intentionally committed," entirely relieved the State of its burden of proving the specific intent required for first-degree murder, and was, therefore, error. State v. Keel, 333 N.C. 52, 423 S.E.2d 458 (1992).

Instruction Held Not to Relieve State's Burden of Proving Malice. - Instruction stating that if the State proved beyond a reasonable doubt that defendant killed deceased with a deadly weapon or intentionally inflicted a wound upon the deceased with a deadly weapon that proximately caused the deceased's death, the law requires, first, that the killing was unlawful and, second, that it was done with malice, the use of the word "requires" did not create a mandatory presumption of malice. The instruction was more likely to be interpreted by lay jurors as creating additional requirements for the State's proof, by depriving the State of any permissible inference of malice from an intentional killing with a deadly weapon. Therefore, the instruction did not relieve the State of its burden to prove malice beyond a reasonable doubt. 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, 316 N.C. 382, 342 S.E.2d 901 (1986).

Given defendant's use of a deadly weapon and the fact that when the victim tried to escape by shutting the front door, defendant shot the door near the doorknob four to six times before kicking the door, the court was not persuaded that, absent the malice instruction, there was a reasonable possibility that the jury would have reached a different verdict on the charge of attempted first-degree murder. State v. Yarborough, - N.C. App. - , 843 S.E.2d 454 (2020).

Instruction on Inference of Premeditation and Deliberation. - In trial for first-degree murder and robbery, evidence of lack of provocation, including victim's weakened condition and defendant's physical integrity on examination, and of defendant's conduct in leaving the scene of the assault and callously selling victim's personal belongings constituted evidence from which premeditation could be inferred; therefore, instruction regarding proof from which premeditation and deliberation could be inferred was supported by the evidence. 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).

"Lack of provocation by the victim," "use of grossly excessive force," and "infliction of lethal wounds after the victim is felled," as cited in the North Carolina Pattern Jury Instructions, N.C.P.I.-Crim. 206.10 are merely examples of circumstances which, if found, the jury could use to infer premeditation and deliberation. It is not required that each of the listed elements be proven beyond a reasonable doubt before the jury may infer premeditation and deliberation. State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990).

Failure to give defendant's requested instruction on the felled victim theory of premeditation and deliberation was not error because the State established the elements of premeditation and deliberation by evidence other than the number of shots fired; the State presented evidence that defendant walked away from the argument with the victim, entered his house, retrieved a firearm from a closet, exited the house, and then shot the victim, forming intent sometime within that timeframe. State v. Snider, 168 N.C. App. 701, 609 S.E.2d 231 (2005).

Instruction on Premeditation Not Plain Error Where Defense Was Total Innocence. - Where, upon defendant's trial for murder, he did not attempt to establish that he shot victim in an unpremeditated manner, but rather, his defense, presented by the testimony of several alibi witnesses, was total innocence, the trial court's failure to elucidate the meaning of premeditation in its instructions to the jury did not constitute plain error. State v. Brown, 327 N.C. 1, 394 S.E.2d 434 (1990).

Alibi Instruction Not Required. - In prosecution for first-degree murder, where the record showed that the crime was committed on a certain corner at a specified time, and defendant testified that he was on that corner at that time, there was insufficient evidence to require an instruction on alibi, even had there been a special request for it. State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1210 (1976).

Instruction on Diminished Capacity Not Required. - While there was expert testimony indicating that defendant suffered from post traumatic stress disorder, the after-effects of a concussion, and alcohol dependence, defendant was not entitled to an instruction on diminished capacity because the expert testimony did not explain how those circumstances impaired defendant's ability to premeditate, deliberate, or form specific intent to kill. State v. McDowell, 215 N.C. App. 184, 715 S.E.2d 602 (2011), dismissed and review denied 365 N.C. 572, 724 S.E.2d 918, 2012 N.C. LEXIS 329 (N.C. 2012).

Instruction on accident not required. - Defendant was not entitled an instruction on the defense of accident, despite defendant's claim to have abandoned the burglary before shooting the murder victim, because defendant was engaged in misconduct, breaking and entering into a home with the intent to commit robbery, at the time of the shooting. State v. Yarborough, 198 N.C. App. 22, 679 S.E.2d 397 (2009), cert. denied, 363 N.C. 812, 693 S.E.2d 143, N.C. LEXIS 144 (2010).

Judge's failure to give instruction on accident in a murder prosecution was error; however, where defendant's testimony was contradicted by State's witness, defendant was impeached by his prior inconsistent statements and his past criminal activity, and defendant's story completely lacked the ring of truth, no plain error was found. See State v. Loftin, 322 N.C. 375, 368 S.E.2d 613 (1988).

Guilt of Accomplice. - In a prosecution for murder where an accomplice testified for the State, the trial court did not err in failing to instruct the jury that the accomplice was guilty, as an accomplice, of the crime charged against defendant. State v. Keller, 50 N.C. App. 364, 273 S.E.2d 741, appeal dismissed, 302 N.C. 400, 279 S.E.2d 354 (1981).

Instruction as to Aiding and Abetting. - Defendant's conviction for first-degree murder, under a theory of aiding and abetting, was affirmed because the trial court's clarifying instructions properly set out the elements of the crime and did not lessen the state's burden of proof. State v. Glynn, 178 N.C. App. 689, 632 S.E.2d 551 (2006), appeal dismissed, cert. denied, 637 S.E.2d 180 (N.C. 2006).

Instruction as to Accessory Before the Fact. - Where the trial court's instructions made no mention of the necessary causal connection between defendant's alleged statements and principal's actions, simply stating that defendant should be found guilty if the jury found that principal murdered victim, and that defendant "knowingly instigated, counseled or procured" the murder, the jury was not adequately instructed with respect to the chain of causation necessary to a conviction of accessory before the fact to murder. State v. Davis, 319 N.C. 620, 356 S.E.2d 340 (1987).

Instruction Permitting Verdict of Guilty as Accessory to Second-Degree Murder. - In a prosecution of a defendant as an accessory before the fact to the murder of her husband, defendant was not prejudiced by an instruction which would permit the jury to return a verdict of guilty as an accessory to murder in the second degree. State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1970).

It was not plain error for a trial court to instruct on the offense of accessory after the fact to second-degree murder because the State presented no evidence about what may have transpired between the victim and the principal offender before the principal shot the victim, and while physical evidence could have supported a finding of premeditation and deliberation, there was also testimony that the witness thought the victim had been "jumped," supporting a reasonable inference that the attack was spontaneous. State v. Brewington, 179 N.C. App. 772, 635 S.E.2d 512 (2006).

Instruction Permitting Verdict of Guilty of Voluntary Manslaughter. - Where the jury was instructed that it could find defendant guilty of first-degree murder, second-degree murder, or not guilty, and the jury returned a verdict of guilty of first-degree murder, any error in the trial court's failure to instruct the jury on voluntary manslaughter was harmless. State v. Bunnell, 340 N.C. 74, 455 S.E.2d 426 (1995).

Instruction on Lesser-Included Offense of Involuntary Manslaughter. - Evidence of recklessness by defendant in selling the victim methadone supported charges on both second-degree murder and the lesser-included offense of involuntary manslaughter to the jury. State v. Barnes, 226 N.C. App. 318, 741 S.E.2d 457 (2013), review denied, 747 S.E.2d 549, 2013 N.C. LEXIS 848 (2013).

The court did not commit "plain error" in failing to charge the jury on involuntary manslaughter, where the only possible evidentiary support for an involuntary manslaughter verdict was defendant's statement to the police to the effect that he did not stab the victim and that she twice ran onto his knife, because defendant did not rely upon the statement in the trial court, but repudiated it as a lie. State v. Pulley, 90 N.C. App. 673, 369 S.E.2d 634 (1988).

Instruction on action in concert, as a permissible basis for finding defendant guilty of first-degree murder was properly given in view of the evidence, and where defendant himself struck the fatal blow. State v. Wilson, 322 N.C. 117, 367 S.E.2d 589 (1988).

Although evidence adduced at trial would support a jury finding that the defendant acted in perfect defense of another, as it also would support a finding that the defendant and another acted in concert to commit first-degree murder, the trial court properly gave an instruction on the acting in concert theory. State v. Perry, 338 N.C. 457, 450 S.E.2d 471 (1994).

District court did not abuse its discretion by instructing the jury where it gave the definition of conspiracy four times and gave a long instruction on the definition of murder under North Carolina law. United States v. Celestine, - F.3d - (4th Cir. Aug. 9, 2002), cert. denied, 537 U.S. 1061, 123 S. Ct. 644, 154 L. Ed. 2d 546 (2002), cert. denied, 537 U.S. 1094, 123 S. Ct. 706, 154 L. Ed. 2d 642 (2002), cert. denied, 537 U.S. 1095, 123 S. Ct. 708, 154 L. Ed. 2d 644 (2002), cert. denied, 537 U.S. 1144, 123 S. Ct. 944, 154 L. Ed. 2d 843 (2003).

Was erroneously given regarding defendant's first-degree murder charge, as the State failed to present any evidence that defendant acted with another; moreover, the error was not harmless, as contended by the State, because the trial court also erroneously informed the jury in its instructions that it could convict defendant of first-degree murder on the basis of acting in concert under both felony murder and premeditation and deliberation theories. State v. Windley, 173 N.C. App. 187, 617 S.E.2d 682 (2005).

Finding of "an agreement to kill" is equivalent to finding an agreement to commit an intentional murder, even in the absence of an instruction requiring the latter finding, and the finding of an agreement to kill is equivalent to the finding of an agreement to premeditate and deliberate. State v. Brewton, 173 N.C. App. 323, 618 S.E.2d 850 (2005).

Instructions Permitting Conviction of Both Defendants If One Found Guilty. - Where the jury instructions in a case in which two defendants were jointly tried for rape and murder were susceptible of the construction that the jury should convict both defendants if it found one of them guilty, defendants would be granted a new trial as to the charges against them. State v. McCollum, 321 N.C. 557, 364 S.E.2d 112 (1988).

Characterization of Deceased Held Harmless Error. - In a prosecution for first-degree murder, the trial judge's characterization of deceased as the common-law husband of the defendant in his charge to the jury was harmless error. 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).

Instruction as to Definition of Life Imprisonment in First-Degree Murder Case. - When jurors sent a question regarding the definition of life imprisonment in a first-degree murder case, the trial judge erred by adding a statement to the definition of life in prison without parole that the jurors should decide punishment "wholly uninfluenced by consideration of what another arm of the government might or might not do in the future"; that extraneous language contained the suggestion that "life without parole" was not the only alternative to the death sentence and was, therefore, erroneous. State v. Boggess, 358 N.C. 676, 600 S.E.2d 453 (2004).

Instruction as to Right to Consider Eligibility to Parole. - When, in a prosecution for murder in the first degree, the question of eligibility for parole arises spontaneously during the deliberations of the jury and is brought to the attention of the court by independent inquiry of the jury and request for information, the court should instruct the jury that the question of eligibility for parole is not a proper matter for the jury to consider and should be eliminated entirely from their deliberations, and the action of the court in merely telling the jury that it cannot answer the inquiry must be held for prejudicial error upon appeal from conviction of the capital felony without recommendation of life imprisonment. State v. Conner, 241 N.C. 468, 85 S.E.2d 584 (1955).

Aggravating Factor of Pecuniary Gain. - Submission to the jury of the aggravating factor of pecuniary gain does not relitigate the question of intentional killing or any element of the offense of first-degree murder under the felony-murder rule. State v. Irwin, 304 N.C. 93, 282 S.E.2d 439 (1981).

Flight. - So long as there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged, an instruction of flight is properly given. 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).

The fact that there may be other reasonable explanations for defendant's conduct does not render an instruction on flight improper. 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).

Instruction on Flight Held Warranted. - As an escape from custody constitutes evidence of flight, evidence of defendant's attempt to escape from custody following his arrest provided support for the trial court's instruction on flight. State v. Levan, 326 N.C. 155, 388 S.E.2d 429 (1990).

Where following the shooting, defendant first attempted to conceal victim's body by ordering accomplice to drag it further into the woods by the roadside where the shooting had occurred, ordered accomplice to wipe the fingerprints off the gun and then to throw the murder weapon into a nearby river from which it was never recovered, tried to throw victim's clothes and personal effects into a dumpster and eventually threw the items over the guard rail along a major highway, his actions were sufficient to support the trial court's instruction on flight, despite fact defendant returned to his home following shooting and approached five law enforcement officers within 48 hours of victim's murder. State v. Levan, 326 N.C. 155, 388 S.E.2d 429 (1990).

Trial court properly refused to instruct that the automatism/unconsciousness defense applied to charges of felony murder, G.S. 14-17, because the underlying kidnapping of the victim and the killing of the victim were a single transaction, and thus the kidnapping provided the voluntary act for purposes of the felony murder rule; although a psychiatrist testified that defendant was in a dissociative state when he actually killed the victim, there was no evidence that defendant was in a dissociative state when he kidnapped the victim. State v. Boggess, 195 N.C. App. 770, 673 S.E.2d 791 (2009), review denied, 363 N.C. 584, 682 S.E.2d 703 (2009).

Voluntary Intoxication. - There was no prejudicial error in refusing to instruct the jury on voluntary intoxication as it related to the burning of defendant's dwelling in a felony murder case, where the court did so charge the jury in the murder part of the case. State v. Hales, 344 N.C. 419, 474 S.E.2d 328 (1996).

Defendant's conviction of first-degree murder under G.S. 14-17, was affirmed; the trial court properly denied defendant's requested jury instructions on voluntary intoxication and second-degree murder, as defendant showed no signs of intoxication when he committed the crime, and the evidence of premeditation was very strong, and the trial court did not abuse its authority to question witnesses under G.S. 8C-1, N.C. R. Crim. P. 614(b), as the trial court only questioned jurors to focus the witness, or to clarify the testimony. State v. Rios, 169 N.C. App. 270, 610 S.E.2d 764 (2005), appeal dismissed, cert. denied, - N.C. - , 623 S.E.2d 37 (2005).

Robbery Occurring after Murder. - Where a jury could reasonably infer that murder and subsequent robbery were all part of one continuous transaction, the trial court's instructions on this issue were properly supported by the evidence. State v. Morganherring, 350 N.C. 701, 517 S.E.2d 622 (1999), cert. denied, 529 U.S. 1024, 120 S. Ct. 1432, 146 L. Ed. 2d 322 (2000).

Inaccurate Statements of Law. - The court did not err in refusing to give defendant's requested instruction where it was not an accurate statement of the law. State v. Harden, 344 N.C. 542, 476 S.E.2d 658 (1996).

Instruction on Second-Degree Murder Not Required. - Because the evidence did not establish that defendant formed the intent to kill the victim under the influence of provocation such that premeditation and deliberation were negated, the trial court did not err in failing to instruct the jury on second-degree murder. State v. Holmes, 263 N.C. App. 289, 822 S.E.2d 708 (2018), review denied, 824 S.E.2d 415, 2019 N.C. LEXIS 272 (2019).

Instruction on Voluntary Manslaughter Not Required. - Defendant did not present evidence of sudden provocation, and the State's evidence did not establish sudden provocation, much less that he acted under an immediate grip of sufficient passion to warrant a voluntary manslaughter instruction; without evidence of such a provocation and heat of passion, the trial court did not err in failing to instruct the jury on voluntary manslaughter. State v. Holmes, 263 N.C. App. 289, 822 S.E.2d 708 (2018), review denied, 824 S.E.2d 415, 2019 N.C. LEXIS 272 (2019).

Double Jeopardy. - Trial court did not err by submitting to the jury both attempted first-degree murder and assault with a deadly weapon inflicting serious injury, and by imposing consecutive sentences for the offenses, because each offense contained at least one element not included in the other; therefore, defendants were not been subjected to double jeopardy. State v. Tirado, 358 N.C. 551, 599 S.E.2d 515 (2004), cert. denied, 544 U.S. 909, 125 S. Ct. 1600, 161 L. Ed. 2d 285 (2005).

Failure to Give Instruction Was Harmless. - In a case in which defendant passed a tow truck on the shoulder and struck and killed the victim, because the trial court instructed the jury on second-degree murder and the lesser-included offenses of involuntary manslaughter and misdemeanor death by vehicle, both of which were lesser offenses that involved killings that were unintentional, but the jury chose to convict defendant of second-degree murder, which required a mens rea of malice, the jury's verdict rejected the notion that defendant's passing of the tow truck along the shoulder was unintentional, and, thus, any error in failing to give an instruction on accident was harmless. State v. Nazzal, - N.C. App. - , 840 S.E.2d 881 (2020).

B. DEGREE OF OFFENSE.

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When Jury May Be Instructed to Find Defendant Guilty of First-Degree Murder or Not Guilty. - It is only in cases where all of the evidence tends to show that the homicide was committed by means of poison, lying in wait, imprisonment, starving, torture, or in the perpetration or attempt to perpetrate a felony, that the trial judge can instruct the jury that they must return a verdict of murder in the first degree or not guilty. State v. Perry, 209 N.C. 604, 184 S.E. 545 (1936).

Where no inference can fairly be deduced from the evidence of or tending to prove a murder in the second degree or manslaughter, the trial judge should instruct the jury that it is their duty to render a verdict of "guilty of murder in the first degree," if they are satisfied beyond a reasonable doubt, or of "not guilty." State v. Smith, 294 N.C. 365, 241 S.E.2d 674 (1978).

If the evidence is sufficient to fully satisfy the state's burden of proving each and every element of the offense of first-degree murder and there is no evidence to negate these elements other than the defendant's denial that he committed the offense, second-degree murder should not be submitted to the jury. State v. Moseley, 336 N.C. 710, 445 S.E.2d 906 (1994), cert. denied, 513 U.S. 1120, 115 S. Ct. 923, 130 L. Ed. 2d 802 (1995).

The absence of self-defense is not an "element" of murder, nevertheless, upon the particular evidence presented, the trial court correctly instructed the jury that to convict the defendant of murder in the first degree the jury must find that he did not act in self-defense. State v. Keel, 337 N.C. 469, 447 S.E.2d 748 (1994), cert. denied, 513 U.S. 1198, 115 S. Ct. 1270, 131 L. Ed. 2d 147 (1995).

Murder by Means of Lying in Wait. - When the evidence supports a finding that the murder was perpetrated by means of lying in wait and there is no conflict in the evidence, the trial court is not required to instruct the jury on second-degree murder. 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).

The trial court may not give an instruction on second-degree murder when the state's evidence supports a jury finding of each element of lying in wait and when there is no conflict with respect to such evidence. 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).

Trial court did not commit plain error by instructing the jury that it could convict defendant of first-degree murder based on the theory of lying in wait because the evidence suggested that the shooting immediately, or almost immediately, followed defendant's ambush of the victim outside the house, and the evidence did not show that the victim was aware of defendant's presence outside the house or defendant's purpose to kill her; even if defendant could show error on that basis, defendant could not show prejudice resulting from the error because there was no possibility that, had the error in question not been committed, a different result would have been reached at trial. State v. Gosnell, 231 N.C. App. 106, 750 S.E.2d 593 (2013).

It was no error to instruct a jury on a lying in wait theory of first degree murder absent evidence of a deadly purpose to kill, because (1) a lying in wait theory of murder did not require proof of a specific intent to kill, synonymous with a deadly purpose to kill, and (2) the evidence was sufficient where the initial rationale for a concealed attack on a victim which ended in murder was to "get some money." State v. Grullon, 240 N.C. App. 55, 770 S.E.2d 379 (2015).

Where there was a conflict in the evidence regarding whether the defendant lay in wait, the evidence supported submission to the jury of second-degree murder and voluntary manslaughter. State v. Camacho, 337 N.C. 224, 446 S.E.2d 8 (1994).

For all murder cases prosecuted under this section, when there is a conflict in the evidence regarding whether defendant committed the underlying felony or was lying in wait, all lesser degrees of homicide charged in the indictment pursuant to G.S. 15-144 and supported by the evidence must be submitted to the jury. State v. Camacho, 337 N.C. 224, 446 S.E.2d 8 (1994).

Where there was abundant evidence that homicide was committed in the perpetration of rape, and that defendant was the one who committed the offense, and no element of murder in the second degree or manslaughter was made to appear, court properly limited the possible verdicts to guilty of murder in first degree or not guilty. State v. Mays, 225 N.C. 486, 35 S.E.2d 494 (1945); State v. Scales, 242 N.C. 400, 87 S.E.2d 916 (1955).

Where all the evidence is to the effect that murder was committed in the perpetration of a robbery, it is not error for the court to limit the jury to a verdict of guilty of murder in the first degree or not guilty under this section. State v. Gosnell, 208 N.C. 401, 181 S.E. 323 (1935); State v. Matthews, 226 N.C. 639, 39 S.E.2d 819 (1946).

Where all the evidence for the State tends to show that the defendants killed the deceased while attempting to rob him, the crime is murder in the first degree, under this section, and the failure of the trial court to submit the issue of guilty of murder in the second degree is not error. State v. Donnell, 202 N.C. 782, 164 S.E. 352 (1932). See also, State v. Brown, 231 N.C. 152, 56 S.E.2d 441 (1949).

In a case of murder in the first degree committed in the perpetration of, or attempt to perpetrate, a robbery, instruction that the jury should return a verdict of guilty as charged, guilty as charged with a recommendation for life imprisonment, or not guilty is a proper instruction. When the indictment and evidence disclose a killing in the perpetration of a robbery, only one of such verdicts may be returned. 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).

Where the evidence permits a legitimate inference that a murder was committed in perpetration of a robbery, it is not prejudicial error for the court to give the State's contentions and to charge the jury that a murder committed in the perpetration of a robbery will be deemed murder in the first degree. State v. Rich, 277 N.C. 333, 177 S.E.2d 422 (1970).

A murder committed in the perpetration or attempted commission of kidnapping or holding a human being for ransom constitutes murder in the first degree and an instruction to this effect upon supporting evidence cannot be held for error. State v. Streeton, 231 N.C. 301, 56 S.E.2d 649 (1949).

Any error of trial judge in failing to instruct on involuntary manslaughter was harmless where the jury specifically found that the underlying felony of kidnapping was committed, which supported defendant's conviction of murder in the first degree on the basis of felony murder. State v. Woods, 316 N.C. 344, 341 S.E.2d 545 (1986).

Murder Committed in Course of Kidnapping. - The court properly instructed the jury on the theory of felony murder based on the underlying felony of kidnapping, while applying the theory of acting in concert. State v. Roseborough, 344 N.C. 121, 472 S.E.2d 763 (1996).

Murder Committed in Course of Burglary. - In a prosecution where defendants were charged with first-degree murder and the evidence tended to show that defendants killed decedent in the perpetration of the underlying felony of burglary, but there was no evidence that decedent was killed other than in the course of the commission of burglary, the trial court was not required to submit lesser included offenses of second-degree murder and voluntary manslaughter to the jury. State v. Rinck, 303 N.C. 551, 280 S.E.2d 912 (1981).

Murder Committed in Course of Robbery. - Trial court erroneously instructed the jury it could convict defendant of second-degree murder if it found he acted in concert with co-felon "with a common purpose to commit robbery"; a conviction for second-degree murder requires a finding that defendant acted intentionally and with malice to kill the victim; therefore the erroneous instruction given by the trial court could have allowed defendant to be convicted of second-degree murder based on the defendant's mens rea for robbery. State v. Hunt, 91 N.C. App. 574, 372 S.E.2d 744 (1988), cert. denied, 325 N.C. 430, 383 S.E.2d 656 (1989).

Duty of Judge to Determine If Instruction on Lesser Offense Is Warranted. - It is the duty of the judge to determine, in the first instance, if there is any evidence or any inference fairly deducible therefrom tending to prove one of the lower grades of murder. Having done so, and having concluded that there is no basis for submission of manslaughter to the jury, it was the duty of the judge to instruct it accordingly. State v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971).

When Lesser Included Offense May Be Submitted to Jury. - Defendant is entitled to have a lesser included offense submitted to the jury under the proper instructions, but only when there is evidence to support that lesser included offense. State v. Brown, 300 N.C. 731, 268 S.E.2d 201 (1980).

It is a well-established rule that when the law and evidence justify the use of the felony-murder rule, the court is not required to submit to the jury second-degree murder or manslaughter unless there is evidence to support it. State v. Warren, 292 N.C. 235, 232 S.E.2d 419 (1977).

An indictment in the form prescribed by G.S. 15-144 will support a verdict finding the defendant guilty of first-degree murder upon any of the theories set forth in this section or guilty of any lesser offense included within any of those theories. The test in every case involving the propriety of an instruction on a lesser grade of an offense is not whether the jury could convict defendant of the lesser crime, but whether the state's evidence is positive as to each element of the crime charged and whether there is any conflicting evidence relating to any of these elements. 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).

Same - Second-Degree Murder. - In all cases in which the State relies upon premeditation and deliberation to support a first-degree murder conviction, the court must submit the issue of second-degree murder. State v. Hammond, 34 N.C. App. 390, 238 S.E.2d 198 (1977); State v. Poole, 298 N.C. 254, 258 S.E.2d 339 (1979).

A trial judge is not required to give an instruction on second-degree murder in all first-degree cases, but may only instruct on second-degree murder when the evidence supports such a charge. State v. Williams, 315 N.C. 310, 338 S.E.2d 75 (1986).

A plea of not guilty to first degree murder does not, by itself, entitle a defendant to an instruction on second-degree murder. State v. Zuniga, 320 N.C. 233, 357 S.E.2d 898, cert. denied, 484 U.S. 959, 108 S. Ct. 359, 98 L. Ed. 2d 384 (1987).

Only where defendant has brought forth evidence to negate premeditation and deliberation, or where the evidence is equivocal as to premeditation and deliberation, is defendant entitled to an instruction on second-degree murder. State v. Zuniga, 320 N.C. 233, 357 S.E.2d 898, cert. denied, 484 U.S. 959, 108 S. Ct. 359, 98 L. Ed. 2d 384 (1987).

An instruction on murder in the second degree is required only when there is evidence to sustain such a verdict. State v. Bullock, 326 N.C. 253, 388 S.E.2d 81 (1990).

Where a defendant is charged with premeditated and deliberate first degree murder, an instruction on the lesser included offense of second degree murder need be given only if the evidence, reasonably construed, tended to show lack of premeditation and deliberation or would permit a jury to rationally find defendant guilty of the lesser offense and acquit him of the greater. State v. Morston, 336 N.C. 381, 445 S.E.2d 1 (1994).

A court should instruct on murder in the second degree only when the evidence would permit a reasonable finding that the defendant's anger and emotion were strong enough to disturb the defendant's ability to reason. State v. Perry, 338 N.C. 457, 450 S.E.2d 471 (1994).

Trial court did not err when defendant was found guilty of first degree murder by denying defendant's request for an instruction on the lesser included offense of second degree murder because the evidence showed that defendant acted with premeditation and deliberation and there was no evidence to suggest a lack thereof. State v. Hicks, 241 N.C. App. 345, 772 S.E.2d 486 (2015).

Same - Manslaughter. - The trial judge is required to instruct the jury on the lesser included offense of manslaughter only where there is evidence which would sustain such a verdict. It is not error to omit a charge on manslaughter where there is no evidence of manslaughter. 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).

The necessity for instructing the jury as to an included crime of lesser degree, such as manslaughter, than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor. State v. Jones, 291 N.C. 681, 231 S.E.2d 252 (1977).

In a prosecution for first-degree murder, instructions on a lesser included offense of manslaughter are required only when there is evidence from which the jury could find that such included crime of lesser degree was committed. State v. Stewart, 292 N.C. 219, 232 S.E.2d 443 (1977).

It is difficult to imagine a homicide case in which the evidence supports an instruction on self-defense but not an instruction on voluntary manslaughter based upon an excessive force theory. 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).

A defendant is entitled to an instruction on voluntary manslaughter based on imperfect self-defense only if evidence is introduced from which the following may be found: (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; and (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. 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).

To have been properly entitled to a jury instruction on voluntary manslaughter, defendant was required either to offer his own evidence or to rely upon the State's evidence to show (1) that he stabbed his wife in the heat of passion, (2) that his passion was provoked by acts of his wife which the law regards as adequate provocation, and (3) that the stabbing occurred immediately after the provocation. State v. Tidwell, 323 N.C. 668, 374 S.E.2d 577 (1989).

Evidence of several steps taken by two men shot by the defendant, who were admittedly the defendant's friends, did not amount to evidence of either an assault or a threatened assault that would rise to the level of provocation which would "render the mind incapable of cool reflection," and therefore, did not warrant the requested instruction on voluntary manslaughter. State v. Huggins, 338 N.C. 494, 450 S.E.2d 479 (1994).

Trial court did not err by failing to instruct the jury on involuntary manslaughter because defendant did not object to the trial court's instructions during trial. State v. McCollum, 157 N.C. App. 408, 579 S.E.2d 467 (2003), cert. denied, 357 N.C. 466, 586 S.E.2d 467 (2003), aff'd, without op., 358 N.C. 132, 591 S.E.2d 519 (2004).

When Instruction on Lesser Included Offense Should Be Omitted. - Where the evidence tends to show that the defendant committed the crime charged and there is no evidence of a lesser included offense, the trial court is correct in not charging on the lesser included offense. State v. Brown, 300 N.C. 731, 268 S.E.2d 201 (1980).

Trial court correctly denied defendant's request for instruction on second-degree murder and voluntary manslaughter where those instructions would have permitted the jury to find him not guilty of felony murder while at the same time finding that he was, in some manner, at fault for shooting into the victim's vehicle, and that outcome would have undermined the imperfect self-defense limitation and the purpose of the felony murder rule. State v. Juarez, 369 N.C. 351, 794 S.E.2d 293 (2016).

Second-Degree Murder Instruction Required. - In a prosecution for first-degree murder, where there was some evidence from which the jury could have inferred that the defendant killed the victim without premeditation and deliberation, it was error for the trial court not to instruct on second-degree murder, since the jury should be instructed on a lesser included offense when there is evidence from which the jury could find that such lesser included offense was committed. State v. Poole, 298 N.C. 254, 258 S.E.2d 339 (1979).

While the evidence was sufficient to support the theory of murder committed in the attempted perpetration of the felony of rape and also supported the inference that defendant did not intend to commit rape but sought to have intercourse with his victim on a voluntary basis and that his assault upon her was precipitated when she struck at him while she was trying to drive him from the house, it was the duty of the court upon such evidence to submit the question of defendant's guilt of murder in the second degree, in addition to the question of defendant's guilt of murder in the first degree, or not guilty. State v. Knight, 248 N.C. 384, 103 S.E.2d 452 (1958).

The trial court should have instructed the jury on voluntary intoxication as well as the lesser included offense of second-degree murder, where the defendant produced enough evidence of his intoxication for a reasonable juror to find that defendant neither had the capacity to form the specific intent to rob the victim nor the capacity to commit first-degree murder. State v. Golden, 143 N.C. App. 426, 546 S.E.2d 163 (2001).

Expert testimony finding that defendant was unable to distinguish right from wrong did not negate defendant's ability to premeditate and deliberate, and thus a jury instruction on second-degree murder was not required. State v. Erickson, 181 N.C. App. 479, 640 S.E.2d 761 (2007), review improvidently granted, 2007 N.C. LEXIS 1102 (N.C. Nov. 9, 2007).

When defendant was charged with felony murder, pursuant to G.S. 14-17, with felonious child abuse being the underlying felony, a trial court properly instructed the jury on the offense of second degree murder because the jury could rationally find that defendant did not use his hands as a deadly weapon in shaking the infant, and therefore not guilty of felony murder, but that the violent shaking was evidence of malice for purposes of second degree murder. State v. Barrow, 216 N.C. App. 436, 718 S.E.2d 673 (2011).

Second-Degree Murder Instruction Not Required. - Defendant was not entitled to an instruction on second-degree murder where the State's evidence showed that defendant and daughter of victim had discussed killing victim in order to collect her life insurance and that victim was severely beaten about the head and was strangled with a telephone cord, and the only evidence tending to negate the required elements of first-degree murder was defendant's silent, yet implicit, denial that he committed the crime. State v. Williams, 315 N.C. 310, 338 S.E.2d 75 (1986).

When all of the evidence tended to show that defendant killed deceased in the perpetration of rape, without evidence of guilt of a less degree of the crime, the court correctly refrained from submitting the question of defendant's guilt of murder in the second degree. State v. Crawford, 260 N.C. 548, 133 S.E.2d 232 (1963).

Where the evidence supported each element of the charged crime of first-degree murder by means of poison, and the only evidence to negate these elements was the defendant's denial that he had committed the offense, the trial court did not err by refusing to instruct the jury on second-degree murder or involuntary manslaughter. State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986).

Evidence that defendant, jealous of his ex-lover's relationship with victim, threatened to kill the victim, and that he obtained a rifle and after calling his ex-lover several times on the night of the shooting, entered her apartment with a key he had managed to obtain, shot the victim once, and while the unarmed victim staggered out of bed, shot him again with the fatal shot, belied anything other than a premeditated and deliberate killing, and an instruction on second-degree murder was not required. State v. Davis, 317 N.C. 315, 345 S.E.2d 176 (1986).

Where the evidence showed that defendant either premeditated and deliberated and then murdered her husband, or accidentally shot her husband as she contended throughout her trial, the trial court properly refused to submit the lesser included offenses of second degree murder and involuntary manslaughter to the jury. State v. Hickey, 317 N.C. 457, 346 S.E.2d 646 (1986).

Where State adequately established all the elements of first-degree murder, including premeditation and deliberation, and defendant produced no evidence sufficient to negate these elements, the mere possibility that the jury could return with a negative finding did not, without more, require the submission of the lesser included offense, murder in the second degree. State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990).

Where defendant repeatedly threatened the victim on the day she was killed, concealed a small pistol in one of his pockets and waited in the victim's apartment until her arrival, had a brief argument with her and as she attempted to leave, pulled out his gun and fired two shots at the back of her head, and the victim died as a result of a gunshot wound to the back of her head, such evidence unequivocally tended to show an intentional killing with malice, premeditation and deliberation, and defendant was not entitled to an instruction on the lesser included offenses of second-degree murder. State v. Stevenson, 327 N.C. 259, 393 S.E.2d 527 (1990).

Where the evidence, viewed as a whole, was insufficient to negate the elements of premeditation and deliberation, the trial court did not err in failing to instruct the jury on second-degree murder and only charging on possible verdicts of guilty of murder in the first degree or not guilty. State v. Arrington, 336 N.C. 592, 444 S.E.2d 418 (1994).

Where the State offered evidence that the murder was premeditated and deliberate, and defendant offered no evidence to negate these elements, the trial court's refusal to give the second-degree murder instruction was proper. State v. Lane, 344 N.C. 618, 476 S.E.2d 325 (1996).

The trial court was not required to instruct on second-degree murder where the State presented positive, uncontradicted evidence of each element of first-degree murder. State v. Leazer, 353 N.C. 234, 539 S.E.2d 922 (2000).

Habeas relief for death row petitioner was not warranted where trial court's instruction on aggravation was proper, and the court's refusal to instruct the jury on the lesser-included offense of second degree murder did not violate established federal law. Bates v. Lee, 308 F.3d 411 (4th Cir. 2002), cert. denied, 538 U.S. 1061, 123 S. Ct. 2223, 155 L. Ed. 2d 1113 (2003).

Regardless of whether defendant was the first to fire his weapon, the State presented uncontroverted evidence from which the jury could rationally infer that defendant formed the requisite intent for first-degree murder at some point during the period in which he heard shots erupt in the front of the store, stepped around the corner to observe the action, and fired his weapon multiple times. Defendant's conduct before, during, and after the murder provided sufficient positive evidence of premeditation and deliberation; accordingly, he was not entitled to an instruction on second-degree murder as the lesser included offense of first-degree 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).

Defendant's admission that he fired three times in the victim's direction supported a finding of premeditation and deliberation because premeditation and deliberation may be inferred from the multiple shots fired by defendant; accordingly, defendant was not entitled to an instruction on second-degree murder as the lesser included offense of first-degree 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).

Statements indicated that it was only after defendant fired multiple shots in the front of a store that he ran back towards the witnesses and appeared to a witness to be focused on leaving the store. Neither the witness's testimony nor defendant's leaving the store after shooting the victim negated premeditation and deliberation such that an instruction on second-degree murder as a lesser included offense of first-degree murder was warranted. 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).

Defendant was not entitled to a jury instruction on second-degree murder as a lesser-included offense of first-degree murder, because defendant conceded that the evidence presented warranted an instruction on the charge of first-degree murder, necessarily acknowledging support for findings of premeditation and deliberation, and defendant pointed to no evidence that the victim was killed without premeditation and deliberation. State v. Laurean, 220 N.C. App. 342, 724 S.E.2d 657 (2012).

In a first-degree murder case, in light of evidence of defendant's premeditation and deliberation, including testimony that the victim begged for his life, multiple gunshot wounds, and the lack of provocation, defendant was not entitled to an instruction on the lesser-included offense of second-degree murder. State v. Rogers, 227 N.C. App. 617, 742 S.E.2d 622 (2013).

Where the jury had the right to convict defendant of second-degree murder, but convicted defendant of first-degree murder based on felony murder, the failure to instruct them that they could convict of voluntary manslaughter could not have harmed defendant. State v. Price, 344 N.C. 583, 476 S.E.2d 317 (1996).

Where there was ample evidence to support a finding that defendant premeditated and deliberated a murder, the trial court did not err in refusing to instruct on second-degree murder. 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).

Premise for Instruction Held Improper. - A trial court may not premise a second-degree murder instruction on the possibility that the jury will accept some of the state's evidence while rejecting other portions of the state's case. 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).

Voluntary Manslaughter Instruction Not Required. - There being no evidence in the record to sustain a verdict of manslaughter, it was not error for the court to omit manslaughter from the possible verdicts which the jury might return. State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971), cert. denied, 414 U.S. 874, 94 S. Ct. 157, 38 L. Ed. 2d 114 (1973).

In prosecution for second-degree murder, where there was no evidence of just cause or reasonable provocation for the homicide, nor was there 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, and the trial court did not err in failing to instruct on manslaughter as a lesser included offense. State v. Mull, 24 N.C. App. 502, 211 S.E.2d 515 (1975).

Where, in a prosecution for second-degree murder, there is no evidence that defendant killed under the heat of passion raised by sudden provocation and nothing that raises the issue of self-defense, a possible verdict of voluntary manslaughter should not be submitted. State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978).

In a prosecution for second-degree murder involving the death of a child from the so-called "battered child" syndrome, where there was a great disparity in age and size between the victim and her slayer, and particularly where the slayer stood in loco parentis with the child, as a matter of law adequate provocation could not be found to exist so as to justify submission of voluntary manslaughter where the evidence showed that the defendant beat and abused the child unto its death. State v. Vega, 40 N.C. App. 326, 253 S.E.2d 94, appeal dismissed and cert. denied, 297 N.C. 457, 256 S.E.2d 809, cert. denied, 444 U.S. 968, 100 S. Ct. 459, 62 L. Ed. 2d 382 (1979).

The trial court in a second-degree murder case did not err in failing to charge the jury that it might find defendant, who offered no evidence in his own behalf, guilty of voluntary manslaughter, since evidence presented by the State tended to show that defendant was guilty of murder if he was guilty of anything, and evidence presented by a codefendant tended to show that defendant was not guilty of anything. State v. Gadsden, 300 N.C. 345, 266 S.E.2d 665 (1980).

Trial judge properly refused to submit voluntary manslaughter as an alternative verdict, where the State's evidence tended to show a cold, calculated premeditated shooting by defendant, and defendant's evidence, on the other hand, tended to show that he did not shoot victim intentionally and never intended to harm him, and that his gun accidentally discharged as he struggled with victim over the gun, which defendant had picked up to convince victim to stop choking him. State v. Blake, 317 N.C. 632, 346 S.E.2d 399 (1986).

Where the jury did not find defendant was in the grip of sufficient passion to reduce a charge of murder from first-degree to second-degree, then ipso facto it would not have found sufficient passion to find the defendant guilty only of voluntary manslaughter; therefore, the trial court did not err in failing to give the jury an instruction on voluntary manslaughter. State v. Tidwell, 323 N.C. 668, 374 S.E.2d 577 (1989).

Where defendant's stabbing of his wife occurred more than eight hours after the alleged incident of provocation, the trial court was not required to charge the jury on a lesser included offense of voluntary manslaughter. State v. Tidwell, 323 N.C. 668, 374 S.E.2d 577 (1989).

Evidence that defendant believed it necessary to kill victim before victim killed him is not sufficient to justify an instruction as to voluntary manslaughter based on imperfect self-defense. 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).

Involuntary Manslaughter Instruction Required. - Where the evidence offered by defendant, if believed by the jury, was sufficient to support a verdict of involuntary manslaughter, which was a lesser degree of the crime charged in the bill of indictment, the court erred in excluding it from the list of permissible verdicts. State v. Wrenn, 279 N.C. 676, 185 S.E.2d 129 (1971).

In a prosecution for first-degree murder in which the defendant was found guilty of voluntary manslaughter, the trial judge erred in failing to instruct the jury on involuntary manslaughter where the defendant's testimony was, in its entirety, an account of an unintentional killing. State v. Graham, 38 N.C. App. 86, 247 S.E.2d 300 (1978).

Trial court should have given an involuntary manslaughter jury instruction where defendant requested such an instruction and there was evidence that tended to show that the victim was shot after she pointed a gun at defendant, that defendant attempted to knock the gun out of the victim's hand, and that the gun discharged in a struggle between the victim and defendant to gain control of it.

Involuntary Manslaughter Instruction Not Required. - Court's failure to instruct the jury that involuntary manslaughter was one of their possible verdicts was not error where all of the evidence showed that defendant took a pistol from his back pocket and shot his victim twice after the defendant, a customer, had gotten into a dispute with the victim, a storekeeper, during the course of which the victim ordered defendant out of his store, advanced upon defendant, and hit him with a "billy club," and where none of the evidence suggested that the two shots fired by defendant were fired involuntarily or by reason of culpable negligence. State v. Credle, 18 N.C. App. 142, 196 S.E.2d 289 (1973).

When all the evidence tended to show that the accused committed second-degree murder and there was no evidence of guilt of involuntary manslaughter, the court correctly refused to charge on the unsupported lesser offense. The presence of such evidence is the determinative factor. State v. Redfern, 291 N.C. 319, 230 S.E.2d 152 (1976).

Under the evidence, the trial judge in murder trial did not err in failing to instruct on involuntary manslaughter. State v. Wingard, 317 N.C. 590, 346 S.E.2d 638 (1986).

In trial for first-degree murder by reason of killing during the perpetration of a felony, evidence was sufficient to support a finding that defendant intended to shoot into residence within the meaning of G.S. 14-34.1, and since defendant presented no evidence of involuntary manslaughter, trial judge did not err in failing to submit involuntary manslaughter as a possible verdict. State v. Clark, 325 N.C. 677, 386 S.E.2d 191 (1989).

Assuming error in court's failure to give a charge on involuntary manslaughter, it was harmless in view of the verdict of first-degree murder on the theory of premeditation and deliberation. State v. Hardison, 326 N.C. 646, 392 S.E.2d 364 (1990).

Where a jury is properly instructed on the elements of first and second degree murder and thereafter returns a verdict of guilty of first degree murder based on premeditation and deliberation, any error in the trial court's failure to instruct the jury on involuntary manslaughter is harmless even if the evidence would have supported such an instruction. State v. Jones, 339 N.C. 114, 451 S.E.2d 826 (1994), cert. denied, 515 U.S. 1169, 115 S. Ct. 2634, 132 L. Ed. 2d 873, reh'g denied, 515 U.S. 1183, 116 S. Ct. 32, 132 L. Ed. 2d 913 (1995).

Failure to Charge on Voluntary Manslaughter Not Prejudicial. - Where the court submitted to the jury possible verdicts of first-degree murder, second-degree murder, and not guilty, and the jury convicted the defendants of first-degree murder, even if there was sufficient evidence to support an instruction on voluntary manslaughter, in light of the jury's verdict, the trial court's failure to give an instruction was thereon harmless error. State v. Bowie, 340 N.C. 199, 456 S.E.2d 771 (1995), cert. denied, 516 U.S. 994, 116 S. Ct. 529, 133 L.E.2d 435 (1995), cert. denied, 516 U.S. 994, 116 S. Ct. 529, 133 L.E.2d 435 (1995), State v. Bowie, 340 N.C. 199, 456 S.E.2d 771 (1995), cert. denied, 516 U.S. 994, 116 S. Ct. 529, 133 L.E.2d 435 (1995).

Where the trial court instructed the jury that it could find defendant guilty of first-degree murder, based either on the theory of premeditation and deliberation or the theory of felony murder, guilty of second-degree murder, or not guilty, and the jury returned a verdict of first-degree murder on both theories submitted, even if it was error to fail to instruct the jury regarding voluntary manslaughter, such error was harmless. State v. Leach, 340 N.C. 236, 456 S.E.2d 785 (1995).

Error in Instruction on Manslaughter - Held Harmless. - Where a jury was properly instructed as to both degrees of murder and yet found defendant guilty of murder in the first degree rather than the second degree, error in the charge on manslaughter was harmless. State v. Freeman, 275 N.C. 662, 170 S.E.2d 461 (1969); 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).

Same - Not Harmless. - When the jury is instructed that it may find defendant guilty of murder in the first degree, murder in the second degree, manslaughter, or not guilty, and the verdict is guilty of murder in the second degree, an error in the charge on manslaughter will require a new trial. State v. Freeman, 275 N.C. 662, 170 S.E.2d 461 (1969).

In a prosecution for first-degree murder, a new trial was required where the trial judge twice and at crucial times in the charge to the jury gave an incorrect instruction as to the definition of voluntary manslaughter and related it to the evidence in a manner which would not disclose patent error to the average juror, despite the fact that the trial judge properly defined voluntary manslaughter in another portion of the charge. State v. Cousins, 289 N.C. 540, 223 S.E.2d 338 (1976).

Instructions on Involuntary Manslaughter and Second-Degree Murder Not Required. - Neither involuntary manslaughter nor second-degree murder are applicable when a victim is killed in the course of a felony set forth in G.S. 14-17, so no lesser-included offense instruction on those offenses is required. State v. Ray, 149 N.C. App. 137, 560 S.E.2d 211 (2002), aff'd, 356 N.C. 665, 576 S.E.2d 327 (2003).

Failure to Submit Lesser Offenses Not Prejudicial Where Defendant Is Convicted of Felony Murder. - Where defendant was found guilty of murder in the first degree on theory of felony murder and was found not guilty on charge of first-degree murder with premeditation and deliberation, no prejudice resulted from the court's failure to submit second-degree murder or involuntary manslaughter as possible verdicts. State v. Vines, 317 N.C. 242, 345 S.E.2d 169 (1986).

Submission of Lesser Offense as Prejudicial Error. - If there is evidence of self-defense and no evidence of involuntary manslaughter, it is prejudicial error to submit a charge of involuntary manslaughter in a trial for second-degree murder. State v. Brooks, 46 N.C. App. 833, 266 S.E.2d 3 (1980).

Submission of Lesser Offense Not Error. - Even though the evidence established all the elements of first-degree murder, it was not error to submit a charge of second-degree murder to the jury because the trial court submitted only second-degree murder and the jury could only find defendant guilty or not guilty of that offense. State v. Spivey, 102 N.C. App. 640, 404 S.E.2d 23 (1991).

Evidence that defendant and a person he killed were drinking and arguing before the victim was stabbed was sufficient to negate premeditation and malice, and the trial court properly instructed the jury on second-degree murder and voluntary manslaughter as lesser-included offenses of first-degree murder, even though defendant asked the court not to give those instructions. State v. Beck, 163 N.C. App. 469, 594 S.E.2d 94 (2004), appeal dismissed, 358 N.C. 546, 599 S.E.2d 558 (2004).

Conviction of Lesser Offense Renders Error in Submission of Greater Offense Harmless. - Where the jury convicts the defendant of murder in the second degree, asserted error in submitting the question of defendant's guilt of murder in the first degree is rendered harmless. 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. Hamilton, 19 N.C. App. 436, 199 S.E.2d 159, cert. denied, 284 N.C. 256, 200 S.E.2d 656 (1973).

The submission of a question regarding the guilt of a defendant of murder in the second degree becomes harmless when the jury returns a verdict of manslaughter. State v. Bryant, 282 N.C. 92, 191 S.E.2d 745 (1972), cert. denied, 410 U.S. 958, 93 S. Ct. 1432, 35 L. Ed. 2d 691; 410 U.S. 987, 93 S. Ct. 1516, 36 L. Ed. 2d 184 (1973); State v. Chavis, 30 N.C. App. 75, 226 S.E.2d 389 (1976), cert. denied, 290 N.C. 778, 229 S.E.2d 33 (1976).

Defendant's conviction of voluntary manslaughter would render harmless an error, had error been committed, in submitting to the jury the question of defendant's guilt of the more serious offense, at least absent any showing that the verdict of guilty of the lesser offense was affected thereby. State v. McLamb, 20 N.C. App. 164, 200 S.E.2d 838 (1973).

It was not error to refuse to charge the jury on the lesser included offenses of voluntary and involuntary manslaughter, where there was no evidence that defendant was guilty of manslaughter. The State's evidence indicated only a deliberate, intentional homicide, while defendant's evidence was that he fled the scene before victim was shot and killed by somebody else. State v. Burge, 100 N.C. App. 671, 397 S.E.2d 760 (1990).

The elements of violence and taking were so joined in time and circumstances that the trial court did not err by refusing to instruct the jury on the lesser included offenses. 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).

Instruction on Second Degree Murder Properly Denied. - No rational juror could have convicted defendant of second degree murder, and the trial court did not err in denying defendant's request for such an instruction, because the evidence did not support an alcohol impairment defense, and because any conduct by defendant indicating remorse in the hours after the offense was more than outweighed by his words and actions during and immediately after the killings. Skipper v. Lee, - F. Supp. 2d - (E.D.N.C. Nov. 30, 1999), aff'd, 238 F.3d 414 (4th Cir. 2000).

Trial court erred in denying defendant's motion for a jury instruction on second-degree murder because the State presented evidence of each element of first-degree murder, including premeditation and deliberation, and no evidence negated those elements; defendant's possible drug intoxication at the time of the killing did not support an inference that defendant did not premeditate and deliberate in his actions, and the State presented evidence regarding: defendant's conduct and statements before the killing, including threats of harm to the victim. State v. Bedford, 208 N.C. App. 414, 702 S.E.2d 522 (2010).

Instruction on Lesser-Included Offense Properly Not Given. - Trial court properly refused to submit a lesser-included offense charge of misdemeanor death by vehicle in defendant's criminal trial on charges of second degree murder, as the jury chose to convict defendant of second degree murder rather than involuntary manslaughter, such that providing the additional misdemeanor death option would not have made a difference; any such error was harmless. 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).

IX. CHARGE AND INDICTMENT.

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Constitutionality of Short Form Indictment. - The defendant's "short-form" first degree murder indictment complied with the state and federal Constitutions although it failed to charge in the indictment the elements of the crime or aggravating circumstances as "facts (other than prior conviction) that increase the maximum penalty for the crime." State v. Smith, 352 N.C. 531, 532 S.E.2d 773 (2000), cert. denied, 532 U.S. 949, 121 S. Ct. 1419, 149 L. Ed. 2d 360 (2001).

Court declined to find the short-form indictment authorized by G.S. 15-144 unconstitutional in light of Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999) for failing to allege all essential elements of first-degree murder. State v. Parker, (N.C. App. Oct. 3, 2000).

Prisoner's short-form murder indictment provided constitutionally adequate notice because it cited to both the statute authorizing the short-form, pursuant to G.S. 15-144, and to the state's murder statute, pursuant to G.S. 14-17, thus notifying the prisoner that he needed to defend against a charge of first degree murder on any or all grounds, including murder by torture. Stroud v. Polk, 466 F.3d 291 (4th Cir. 2006), cert. denied, 551 U.S. 1134, 127 S. Ct. 2978, 168 L. Ed. 2d 709 (2007).

Short-Form Indictment Held Sufficient. - Premeditation and deliberation did not have to be separately alleged in defendant's short-form indictment which charged him with first-degree murder, and since the death penalty is the prescribed statutory maximum punishment for first-degree murder in North Carolina, no additional facts had to be charged in the indictment to provide defendant with notice that he was charged with first-degree murder and that the maximum penalty to which he could be subjected was death. State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000), cert. denied, 531 U.S. 1130, 121 S. Ct. 890, 148 L. Ed. 2d 797 (2001).

Murder indictments that comply with G.S. 15-144 are sufficient to charge first-degree murder on the basis of any theory set forth in G.S. 14-17, which included the charge of felony murder based on attempted rape. State v. Garcia, 358 N.C. 382, 597 S.E.2d 724 (2004), cert. denied, - U.S. - , 125 S. Ct. 1301, 161 L. Ed. 2d 122 (2005).

Defendant's conviction for first degree murder, pursuant to a theory of aiding and abetting under G.S. 14-5.2, was affirmed because: (1) the short form indictment properly apprised defendant of the charges against him under G.S. 15-144; and (2) there was no variance with the evidence as the state's evidence presented supported the indictment for first degree murder. State v. Glynn, 178 N.C. App. 689, 632 S.E.2d 551 (2006), appeal dismissed, cert. denied, 637 S.E.2d 180 (N.C. 2006).

First degree murder indictment that stated in part that defendant "unlawfully, willfully, and feloniously did. .. of malice aforethought kill and murder Rudolph Hughes. This act was in violation of North Carolina General Statute 14-17," was a valid short form indictment under G.S. 15-144. State v. Hester, 216 N.C. App. 286, 715 S.E.2d 905 (2011), dismissed and review denied, 365 N.C. 563, 724 S.E.2d 917, 2012 N.C. LEXIS 271 (2012).

Trial court did not err by refusing defendant's request to require the State of North Carolina to disclose its felony murder theory before the jury was empaneled because, although the State used a short-form indictment to charge defendant with murder, the indictment was sufficient and the State's legal theories were not factual information subject to inclusion in a bill of particulars. Moreover, defendant failed to establish that defendant could not adequately prepare a defense without knowledge of the State's legal theory. State v. Hicks, 241 N.C. App. 345, 772 S.E.2d 486 (2015).

Short-Form Indictments Did Not Have to Allege Aggravating Factors. - Where defendant pled guilty to second-degree murder, the trial court did not err in finding the fact that the victim was eight months pregnant to be an aggravating factor and in sentencing him in the aggravated range; as defendant was indicted using a short-form murder indictment, the aggravating factors were not required to be alleged. State v. Hasty, 181 N.C. App. 144, 639 S.E.2d 94 (2007).

The State is not generally required to elect between legal theories in a murder prosecution prior to trial. State v. Wingard, 317 N.C. 590, 346 S.E.2d 638 (1986).

The State is not required at any time to elect a theory upon which it will proceed against defendant on a charge of first degree murder, and it is proper for the trial court to submit the issue of defendant's guilt of that charge to the jury on each of the theories of first degree murder supported by substantial evidence presented at trial; rather than have the jury render a general verdict if it finds defendant guilty of first degree murder, the better practice is for the trial court to have the jury specify the theory or theories upon which it finds first degree murder to have been established beyond a reasonable doubt. State v. Clark, 325 N.C. 677, 386 S.E.2d 191 (1989).

Allegation of Means. - This section does not require an allegation or count to be contained in the bill of indictment as to the means used in committing the murder. The statute only classifies the crime as to degree and punishment in the manner therein set forth. State v. Smith, 223 N.C. 457, 27 S.E.2d 114 (1943).

An indictment under G.S. 15-144 will support a verdict of murder in the first degree if the jury finds beyond a reasonable doubt that an accused killed with malice and after premeditation and deliberation or in the perpetration or attempted perpetration of any arson, rape, robbery, burglary or other felony the commission of which creates any substantial foreseeable human risk and actually results in loss of life. 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).

The murder indictment which complied with G.S. 15-144 was sufficient and did not violate the defendant's due process and equal protection rights under the United States Constitution. State v. Barnett, 141 N.C. App. 378, 540 S.E.2d 423 (2000), appeal dismissed and cert. denied, 353 N.C. 527, 549 S.E.2d 552 (2001).

Short-form indictment under G.S. 15-144 is sufficient to charge murder in the first degree under a theory of lying in wait, just as it is sufficient to charge murder in the first degree on the theory of felony murder or premeditation and deliberation. 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).

Including Verdict of Felony Murder. - A felony murder may be proven by the State although the bill of indictment charges murder in the statutory language of G.S. 15-144. State v. Lee, 277 N.C. 205, 176 S.E.2d 765 (1970).

Allegation of Underlying Felony Unnecessary. - Nothing contained in the Act of 1893 required any alteration or modification of the existing form of indictment for murder. Therefore, it was not necessary that an indictment for murder committed in the attempt to perpetrate larceny should contain a specific allegation of the attempted larceny, such allegation not having been necessary in indictments prior to the said Act of 1893. State v. Covington, 117 N.C. 834, 23 S.E. 337 (1895).

An indictment must be sufficient in form to allege murder and support a conviction of murder in the first degree under G.S. 15-144. It is not required that the indictment allege that the murder was committed in the perpetration of a robbery or other felony in order that it be sufficient to support a verdict of murder in the first degree. State v. Frazier, 280 N.C. 181, 185 S.E.2d 652 (1972), death sentence vacated, 409 U.S. 1004, 93 S. Ct. 453, 34 L. Ed. 2d 295 (1973).

Separate Indictment Not Required for Underlying Felony. - When the State prosecutes a defendant for first-degree murder under the felony-murder rule, the solicitor need not secure a separate indictment for the underlying felony. State v. Williams, 305 N.C. 656, 292 S.E.2d 243 (1982), rehearing denied, 459 U.S. 1189, 103 S. Ct. 839, 74 L. Ed. 2d 1031.

The better practice where the State prosecutes a defendant for first-degree murder on the theory that the homicide was committed in the perpetration of or attempt to perpetrate a felony under this section would be that the district attorney should not secure a separate indictment for the felony. If he does, and there is a conviction of both, the defendant will be sentenced for the murder and the judgment will be arrested for the felony under the merger rule. If the separate felony indictment is treated as surplusage only and the murder charge is submitted to the jury under the felony-murder rule, then obviously the defendant cannot thereafter be tried for the felony. 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).

Specific Allegation of Underlying Felony Constitutes Election by State. - By specifically alleging that the offense was committed in the perpetration of rape the State confined itself to that allegation in order to show murder in the first degree. Without a specific allegation, the State could show murder by any of the means embraced in the statute. State v. Davis, 253 N.C. 86, 116 S.E.2d 365 (1960), cert. denied, 365 U.S. 855, 81 S. Ct. 816, 5 L. Ed. 2d 819 (1961).

Election by State of Felony Murder or Premeditation Theory. - The State is not required to elect prior to the introduction of evidence as to whether it will proceed under the felony-murder rule or on the basis of premeditation and deliberation. State v. Swift, 290 N.C. 383, 226 S.E.2d 652 (1976).

Remedy for Alternative Indictment. - After the return of a verdict of guilty of murder in the first degree, defendant moved in arrest of judgment because the indictment was alternative, indefinite, and uncertain. It was held that although the indictment was alternative, either charge constituted murder in the first degree under this section, informing defendant of the crime charged, and defendant's remedy, if he desired greater certainty, was by motion for a bill of particulars under G.S. 15-143 (now G.S. 15A-925). State v. Puckett, 211 N.C. 66, 189 S.E. 183 (1937).

Waiver by State of First-Degree Murder Charge. - The district attorney during the trial of defendant on a capital offense, and when defendant was voluntarily absent, could properly elect to waive the charge of first-degree murder and proceed with the prosecution of a noncapital offense, second-degree murder. State v. Mulwee, 27 N.C. App. 366, 219 S.E.2d 304, cert. denied, 288 N.C. 732, 220 S.E.2d 622 (1975).

Effect of Announcement That State Would Not Prosecute for First Degree Murder. - A solicitor's (district attorney's) announcement that the State would not prosecute for the capital felony of first degree murder, but for a lesser included offense, did not render incompetent any pertinent evidence bearing on the defendant's guilt. State v. Ferguson, 280 N.C. 95, 185 S.E.2d 119 (1971).

Trial on Second-Degree Charge Not Grounds for Quashing Bill. - A defendant who was tried on a bill of indictment returned by the grand jury charging him with murder in the first degree could not quash the bill on the ground that, following a preliminary hearing, he was bound over for trial on the lesser charge of second degree murder. State v. Mack, 282 N.C. 334, 193 S.E.2d 71 (1972).

Indictment held sufficient to charge conspiracy to murder. See 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).

Juvenile Delinquency Petition Properly Alleged Murder. - Petition alleging that "juvenile was delinquent as defined by former G.S. 7A-517(12) [see now G.S. 7B-101] in that in Durham County and on or about December 30, 1997, the above named juvenile unlawfully, willfully and feloniously did of malice aforethought kill and murder victim" properly alleged first degree murder under G.S. 14-17, satisfied the requirements of former G.S. 7A-560 [see now G.S. 7B-402], and made transfer of case to Superior Court mandatory under former G.S. 7A-608 [see now G.S. 7B-2200]. In re K.R.B., 134 N.C. App. 328, 517 S.E.2d 200 (1999), cert. denied, 351 N.C. 188, 541 S.E.2d 713 (1999).

A charge of murder in the first degree includes murder in the second degree and manslaughter. 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).

Charges of child abuse and child neglect were not merged into a charge of second-degree murder, as the elements of child abuse and neglect are distinct and independent of the elements constituting second-degree murder. State v. Mapp, 45 N.C. App. 574, 264 S.E.2d 348 (1980).

Presence at Murder Scene. - The evidence of defendant's actual or constructive presence at the scene of the murder was sufficiently substantial that a charge on this feature of the case was not necessary. State v. Hunt, 339 N.C. 622, 457 S.E.2d 276 (1994).

X. PLEAS OF GUILTY AND NOT GUILTY.

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Defendant's plea of not guilty puts in issue every essential element of the crime of first-degree murder, and the State must satisfy the jury from the evidence beyond a reasonable doubt that defendant unlawfully killed the deceased with malice and in execution of an actual, specific intent to kill formed after premeditation and deliberation. State v. Propst, 274 N.C. 62, 161 S.E.2d 560 (1968).

Defendant's plea of not guilty puts into issue all of the elements of the charges against him and the burden remains on the State to satisfy the jury beyond a reasonable doubt of all of the elements of the offense charged, including the lesser offense of second-degree murder. 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).

And Entitles Him to Show Both Self-Defense and Accident. - The defendant's plea of not guilty entitled him to present evidence that he acted in self-defense, that the shooting was accidental, or both; election is not required. State v. Todd, 264 N.C. 524, 142 S.E.2d 154 (1965).

The fact that the law imposed the threat of the gas chamber did not render plea of guilty to second degree murder involuntary. Petitioner entered his plea to a lesser offense of murder and was not exposed to the defect which prompted the holding in United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968); Pickett v. Henry, 315 F. Supp. 1138 (E.D.N.C. 1970).

There is no rule which precludes a plea of guilty to a crime for which the maximum punishment is life imprisonment. 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).

Premeditation and Deliberation as Aggravating Factors in Sentencing Defendant Who Pleads Guilty to Second-Degree Murder. - As premeditation and deliberation are not elements of murder in the second degree, if a defendant charged with murder in the first degree pleads guilty to murder in the second degree, the sentencing judge may conclude that for purposes of sentencing premeditation and deliberation have been established by a preponderance of the evidence and therefore may be used as an aggravating factor. State v. Melton, 307 N.C. 370, 298 S.E.2d 673 (1983).

Effect of Principal's Guilty Plea to Voluntary Manslaughter on Charges Against Accessory. - Principal's guilty plea to voluntary manslaughter did not determine that the crime of second degree murder had not been committed, thus barring trial of one who aided and abetted. State v. Cassell, 24 N.C. App. 717, 212 S.E.2d 208, appeal dismissed, 287 N.C. 261, 214 S.E.2d 433 (1975).

Defendant's Consent to Plea. - Just prior to closing arguments defendant consented on the record to his attorney's decision to concede guilt to second-degree murder or voluntary manslaughter. As per se error is based on a defendant not consenting to his counsel's admission of his guilt, defendant's consent prior to the closing arguments amounted to ratification of defense counsel's earlier statement and cured any possible error. State v. Basden, 339 N.C. 288, 451 S.E.2d 238 (1994), cert. denied, 515 U.S. 1152, 115 S. Ct. 2599, 132 L. Ed. 2d 845 (1995).

Guilty Plea Voluntary. - Although the inmate claimed that his guilty pleas were not voluntary and intelligent, in violation of his Sixth and Fourteenth Amendment rights, as he did not know he was admitting guilt of premeditated and deliberate murder, the inmate voluntarily pled with full knowledge of the charges against him and the consequences of his pleas and since the State possessed overwhelming evidence that the inmate acted with premeditation and deliberation, his pleas made premeditation and deliberation an admitted fact. The inmate also argued he was unaware of the consequences of his plea, as he did not know his admission of guilt would permit the State to submit his underlying felonies as aggravating factors during his sentencing, but this argument was rejected because, even if true, it did not entitle the inmate to relief. Meyer v. Branker, 506 F.3d 358 (4th Cir. 2007), cert. denied, - U.S. - , 128 S. Ct. 2975, 171 L. Ed. 2d 899 (2008).

XI. VERDICT.

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Degree of Murder Must Be Determined. - Under this section, distinguishing murder into two degrees, the jury, on conviction, must determine in their verdict whether the crime is murder in the first or second degree. State v. Gadberry, 117 N.C. 811, 23 S.E. 477 (1895); State v. Truesdale, 125 N.C. 696, 34 S.E. 646 (1899).

Requisites of First-Degree Murder Verdict. - For a conviction of murder in the first degree under this section and G.S. 15-172, the jury must find specifically under the evidence that this degree of crime has been committed by the defendant, and the verdict must be received in open court in the presence of the presiding judge under constitutional mandate, N.C. Const., Art. I, § 13, 17, which right may not be waived. State v. Bazemore, 193 N.C. 336, 137 S.E. 172 (1927).

Sufficient Evidence to Support Jury Verdict. - Defendant's convictions for first-degree murder and conspiracy to commit first-degree murder were affirmed because no improper promises were made to defendant in order to induce an involuntary confession and the medical evidence, along with defendant's confession, were sufficient to support the jury's verdict. State v. Shelly, 181 N.C. App. 196, 638 S.E.2d 516 (2007), review denied, 361 N.C. 367, 646 S.E.2d 768 (2007).

Verdict of Second-Degree Murder in Prosecution for First-Degree Murder. - In a case of first-degree murder, committed after premeditation and deliberation, a verdict of second-degree murder is permissible if the jury should fail to find premeditation and deliberation. 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).

Manslaughter Is Necessarily Disproved on Verdict of First-Degree Murder. - In proving the elements of first-degree murder beyond any reasonable doubt in the jurors' minds, the State necessarily disproved manslaughter beyond a reasonable doubt. State v. Bush, 307 N.C. 152, 297 S.E.2d 563 (1982).

As Is Heat of Passion. - When the jury finds beyond a reasonable doubt that the defendant killed his victim with premeditation, they also necessarily find beyond a reasonable doubt that the State has shown that the defendant did not act in the heat of passion. State v. Bush, 307 N.C. 152, 297 S.E.2d 563 (1982).

Defendant was not prejudiced by the court's submission to the jury of the charge of first degree murder on the theory of premeditation and deliberation where the jury found defendant guilty of first-degree murder only on the theory of felony murder. State v. Price, 344 N.C. 583, 476 S.E.2d 317 (1996).

XII. CAPITAL PUNISHMENT.

Editor's Note. - For additional cases regarding capital punishment, see the case notes under G.S. 15A-2000.

Legislature May Constitutionally Impose Death as Punishment. - Just as the legislature acts within its constitutional power in defining first-degree murder to include felony murder, it is also within its constitutional power to determine that first-degree murder, including felony murder, may be punished by death, provided that the death penalty statute itself is constitutional. State v. Williams, 305 N.C. 656, 292 S.E.2d 243 (1982), cert. denied, 459 U.S. 1056, 103 S. Ct. 474, 74 L. Ed. 2d 622 (1983).

The imposition of the death penalty upon a conviction of murder is expressly authorized by N.C. Const., Art. XI, § 2. State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969), death sentence rev'd, 403 U.S. 948, 91 S. Ct. 2283, 29 L. Ed. 2d 859 (1971).

Judgment and sentence of death upon conviction of first-degree murder is not unconstitutional. 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. 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).

Imposition of death penalty for first-degree murder is not cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments to the United States Constitution. 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. Carter, 289 N.C. 35, 220 S.E.2d 313 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3212, 49 L. Ed. 2d 1211 (1976).

Retroactive Applicability of Invalidity of Unanimity Requirement. - The 1990 case of McKoy v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990), which invalidated the unanimity requirement of North Carolina's capital sentencing scheme, should be applied retroactively to capital cases which became final before McKoy was decided. State v. Zuniga, 336 N.C. 508, 444 S.E.2d 443 (1994).

Effect of Furman v. Georgia. - Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), holds that the Eighth and Fourteenth Amendments of the U.S. Constitution will no longer tolerate the infliction of a death sentence where either the jury or the judge is permitted to impose that sentence as a matter of discretion. State v. Rankin, 282 N.C. 572, 193 S.E.2d 740 (1973); State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (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); State v. Blackmon, 284 N.C. 1, 199 S.E.2d 431 (1973).

Where the Supreme Court of the United States in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), held that the imposition of the death penalty, under certain state statutes and in the application thereof, was unconstitutional, that decision did not affect the conviction but only the death sentence. State v. Wright, 282 N.C. 364, 192 S.E.2d 818 (1972); State v. Duncan, 282 N.C. 412, 193 S.E.2d 65 (1972).

Former Mandatory Death Penalty Provision of Section Held Unconstitutional. - North Carolina's mandatory death penalty statute for first-degree murder contained in this section as amended in 1973 and before its amendment in 1977 departed markedly from contemporary standards respecting the imposition of the punishment of death and could not be applied consistently with the Eighth and Fourteenth Amendments' requirement that the State's power to punish be exercised within the limits of civilized standards, since it provided no objective standards for the jury and failed to allow for consideration of the particular character and record of each defendant with a view toward mitigation of the offense. Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976).

Same - The Effect of Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976), was to return the construction of this statute to its post-Furman (Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972)), pre-Waddell (State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973)) status. Carey v. Garrison, 452 F. Supp. 485 (W.D.N.C. 1978), State v. Waddell having held that provisions giving the jury discretion to impose sentences of life imprisonment in capital cases were unconstitutional, but were severable, with the result that the death penalty would become mandatory in such cases.

Notice of Penalty Is Not Constitutionally Required. - The United States Constitution does not require that notice be given that the first-degree murder charge carried with it the possibility that defendant might receive the death penalty upon conviction. State v. Woods, 307 N.C. 213, 297 S.E.2d 574 (1982).

Retention, etc., of Death Penalty Is Legislative Question. - The matter of retention, modification or abolition of the death penalty is a question for the lawmaking authorities rather than the courts. State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973).

Standing to Challenge Constitutionality. - Furman v. Georgia is without significance when the jury in a murder trial returns a verdict recommending life imprisonment. In that situation the defendant has no standing to raise the constitutionality of the death penalty or of a statute because it provides for that punishment. State v. Wright, 282 N.C. 364, 192 S.E.2d 818 (1972); State v. Duncan, 282 N.C. 412, 193 S.E.2d 65 (1972); State v. Rankin, 282 N.C. 572, 193 S.E.2d 740 (1973).

A defendant may not be subject to a potential death sentence absent a showing of actual intent to commit one or more of the underlying felonies delineated or described in this statute. State v. Jones, 353 N.C. 159, 538 S.E.2d 917 (2000).

Cases in Which Defendants Received Death Sentence Remanded Pursuant to Mandate of United States Supreme Court. - Pursuant to mandates of the Supreme Court of the United States in Hill v. North Carolina, 403 U.S. 948, 91 S. Ct. 2287, 29 L. Ed. 2d 860 (1971); Atkinson v. North Carolina, 403 U.S. 948, 91 S. Ct. 2283, 29 L. Ed. 2d 859 (1971); Williams v. North Carolina, 403 U.S. 948, 91 S. Ct. 2290, 29 L. Ed. 860 (1971); Sanders v. North Carolina, 403 U.S. 948, 91 S. Ct. 2290, 29 L. Ed. 2d 860 (1971); and Roseboro v. North Carolina, 403 U.S. 948, 91 S. Ct. 2289, 29 L. Ed. 2d 860 (1971), first-degree murder cases in which the defendants received the death sentence were remanded to the superior court with direction that the defendants be sentenced to life imprisonment in the State's prison. State v. Hill, 279 N.C. 371, 183 S.E.2d 97, death sentence vacated, 403 U.S. 948, 91 S. Ct. 2287, 29 L. Ed. 2d 860 (1971); State v. Atkinson, 279 N.C. 386, 183 S.E.2d 106 (1971); State v. Williams, 279 N.C. 388, 183 S.E.2d 106 (1971); State v. Sanders, 279 N.C. 389, 183 S.E.2d 107 (1971); State v. Roseboro, 279 N.C. 391, 183 S.E.2d 108 (1971).

Resentencing Convicted Murderer Not Ex Post Facto Application of Law. - Where an individual was convicted of murder and sentenced to death, which sentence was later invalidated, resentencing the convicted murderer to life imprisonment did not violate the due process clause as an ex post facto application of the law, especially since before the time of the convicted murderer's June 19, 1973, offense, North Carolina had given notice in the 1969 version of this section that it intended to exact the maximum possible penalty for first-degree murder. Carey v. Garrison, 452 F. Supp. 485 (W.D.N.C. 1978).

When Murder Considered Committed for Purposes of Ex Post Facto Punishment Prohibition. - For purposes of the prohibition against ex post facto legislation, a murder was committed when the murderous acts were performed, and not when death resulted. Therefore, where defendant administered poison to her husband on three occasions, all before June 1, 1977, at a time when the maximum punishment for first-degree murder was life imprisonment, imposition of the death sentence under G.S. 15A-2002 would violate the prohibition against imposition of an ex post facto punishment. State v. Detter, 298 N.C. 604, 260 S.E.2d 567 (1979).

Prosecutor's Argument. - Where the prosecuting attorney, while making a vigorous plea for the imposition of the death penalty, did not depart from or distort the record, and there was nothing in his argument which would tend to mislead the jury or deprive the defendant of a fair trial, the argument was proper. 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).

Where the prosecuting attorney, in his argument, traveled outside the record, used language offensive in its nature, and in support of his plea for the death penalty, injected into his argument his own account of his record as a solicitor in other cases, for the purpose of persuading the jury that he did not ask the death penalty where it was not deserved, his argument was improper. State v. Smith, 279 N.C. 163, 181 S.E.2d 458 (1971).

Argument not improper where the prosecutor argued the only way the jury could prevent defendant from killing again was to give him the death penalty. State v. Basden, 339 N.C. 288, 451 S.E.2d 238 (1994), cert. denied, 515 U.S. 1152, 115 S. Ct. 2599, 132 L. Ed. 2d 845 (1995).

The prosecutor's argument that the death penalty would prevent the defendant from killing again was a proper argument and his argument that there had never been a more appropriate case for the death penalty and that the defendant had worked for and earned a sentence of death, were reasonable arguments in light of the evidence of the defendant's pattern of violent and deadly behavior. State v. Jones, 339 N.C. 114, 451 S.E.2d 826 (1994), cert. denied, 515 U.S. 1169, 115 S. Ct. 2634, 132 L. Ed. 2d 873, reh'g denied, 515 U.S. 1183, 116 S. Ct. 32, 132 L. Ed. 2d 913 (1995).

Although the State Supreme Court cautioned counsel against using Biblical arguments when arguing to the jury that a defendant deserved the death penalty, the court held that the prosecutor's use of Biblical references during an argument to the jury in defendant's case were not so grossly improper that the trial court erred by failing to intervene ex mero motu, and the court upheld defendant's convictions for first-degree murder and robbery with a firearm based on evidence which showed that defendant shot a victim twice in the face with a shotgun and took the victim's car and other personal property. State v. Haselden, 357 N.C. 1, 577 S.E.2d 594 (2003).

Sentence Not Disproportionate. - Where defendant was convicted of three first-degree murders and the record established a cold-blooded, calculated course of conduct on the part of defendant which amounted to a wanton disregard for the value of human life, the two death sentences were not excessive or disproportionate. State v. Robinson, 339 N.C. 263, 451 S.E.2d 196 (1994), cert. denied, 515 U.S. 1135, 115 S. Ct. 2565, 132 L. Ed. 2d 818 (1995).

Trial court's judgment sentencing defendant to death was justified by evidence which showed that defendant and an accomplice forced their way into the victim's house, and that the victim died after her throat was cut, she was stabbed multiple times, and she was shot twice in the head. State v. Watts, 357 N.C. 366, 584 S.E.2d 740 (2003), cert. denied, 541 U.S. 944, 124 S. Ct. 1673, 158 L. Ed. 2d 370 (2004).

Capital sentence for a death resulting from the attempted sale of crack cocaine was affirmed because the sentence was not disproportionate. 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).

Several factors supported the determination that imposition of the death penalty was neither excessive nor disproportionate where the evidence indicated that defendant began planning to kill the victim as soon as their telephone conversation ended the day before the murder; that defendant urged the victim to walk into the field for the ostensible purpose of setting up targets, then shot him without provocation; that the victim asked defendant not to shoot him again; that defendant fired three spaced shots into the victim; that the third shot was fired into the victim's head as the victim lay helpless watching defendant; that defendant took the victim's keys from his body after shooting him; and that defendant felt no remorse. State v. Hurst, 360 N.C. 181, 624 S.E.2d 309 (2006), cert denied 364 N.C. 244 (2010).

The State was entitled to present witnesses in the capital sentencing proceeding to prove the circumstances of prior convictions. State v. Harden, 344 N.C. 542, 476 S.E.2d 658 (1996).

Demonstration of Murder for Personal Gain Not Required. - In defendant's trial on two counts of first-degree murder, the trial court erred by instructing jurors that they had to find defendant committed murder for personal gain, as an aggravating factor for purposes of determining if defendant should be sentenced to death, if they found that he was committing robbery with a dangerous weapon at the time a person who lived in the house and one of defendant's accomplices were shot. State v. Jones, 357 N.C. 409, 584 S.E.2d 751 (2003).

Use of Prior Murder for Sentencing Aggravator Not Double Jeopardy. - Trial court's denial of defendant's pretrial motion to dismiss two murder charges against him in violation of G.S. 14-17, based on double jeopardy pursuant to G.S. 15A-954, was proper because the fact that in a prior murder case against defendant, the State had introduced evidence of the two murders in support of the aggravating circumstance described in G.S. 15A-2000(e)(11) was not tantamount to the State putting defendant on trial for those crimes; the jury's consideration of defendant's "other crimes of violence" in making its penalty recommendation on one murder was not logically equivalent to defendant receiving multiple punishment for the same crime. State v. Carter, 357 N.C. 345, 584 S.E.2d 792 (2003), cert. denied, 541 U.S. 943, 124 S. Ct. 1670, 158 L. Ed. 2d 368 (2004).

XIII. APPEAL.

.

Failure to Assign Error Precludes Review of Instructions. - Where the defendant in a murder prosecution did not assign as error on direct appeal the failure of the trial judge in his instructions to place the burden of proving the absence of heat of passion or the absence of self-defense on the State, he waived his right to complain about such errors in post-conviction review. State v. Watson, 37 N.C. App. 399, 246 S.E.2d 25, appeal dismissed, 295 N.C. 652, 257 S.E.2d 434 (1978).

Where the defendant in a prosecution for second-degree murder failed to raise at trial, on direct appeal or in a subsequent petition for post-conviction relief, the questions of the trial judge's alleged error in instructing the jury that the burden was on the defendant to disprove malice to reduce the killing to voluntary manslaughter and to prove that he killed in self-defense, the defendant could not seek collateral review of the alleged error. State v. Locklear, 39 N.C. App. 671, 251 S.E.2d 638, cert. denied, 296 N.C. 739, 254 S.E.2d 180 (1979).

Failure to Preserve Evidence for Review. - The trial court erred by not allowing the defendant to make an offer of proof and depriving her from preserving the proposed witness testimony in the record for the purpose of appellate review. State v. Brown, 116 N.C. App. 445, 448 S.E.2d 131 (1994).

Error in Allowing New Trial. - In a prosecution for murder the trial court erred in allowing the defendant a new trial on the basis that the retroactivity of the Mullaney rule, see Hankerson v. North Carolina, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 306 (1977), was applicable in his case, where the defendant appellant did not object or assign as error on appeal the instructions of the trial court to the jury requiring the defendant to prove the absence of malice or that he acted in self-defense in order to reduce the alleged crime of murder in the second degree to voluntary manslaughter. State v. Watson, 37 N.C. App. 399, 246 S.E.2d 25, appeal dismissed, 295 N.C. 652, 257 S.E.2d 434 (1978).

Finding as to Mental Capacity Held Conclusive on Appeal. - Where the jury, by its verdict, established that the defendant, at the time of the alleged offenses, had the mental capacity to know right from wrong with reference to these acts, that finding, supported as it was by ample evidence, was conclusive on appeal. State v. Shepherd, 288 N.C. 346, 218 S.E.2d 176 (1975).

Review of State's Argument in Capital Case. - Despite trial counsel's laxity, the State's argument in capital cases is subject to limited appellate review for the existence of gross improprieties which make it plain that the trial court abused its discretion in failing to correct the prejudicial matters ex mero motu. 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).

Ineffective Assistance of Counsel Claims - Where a State prisoner, who was convicted of first-degree murder, in violation of G.S. 14-17, argued that his attorneys were ineffective because they failed to assert a diminished capacity defense, the prisoner was not entitled to federal habeas corpus relief because (1) the prisoner directed the attorneys to pursue the theory that another individual committed the murder; (2) the attorneys' strategic decision to argue that the prisoner did not commit the murder was objectively reasonable; (3) the fact that the attorneys met with the prisoner only five times before trial did not establish their ineffectiveness; and (4) the State court reasonably held that asserting a diminished capacity defense would not have led to a different outcome. Campbell v. Polk, 447 F.3d 270 (4th Cir. 2006).

Defendant's first degree murder conviction for stabbing his wife to death was affirmed because defendant failed to show ineffective assistance of counsel as he did not meet his burden of showing a reasonable probability that, but for defense counsel's failure to raise an issue at trial, the result of his proceedings would have been different. 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).

Where a prosecutor, during cross-examination in a second-degree murder trial, questioned defendant on the reason for omitting certain important facts from a voluntary discussion with a deputy, counsel's failure to object did not constitute ineffective assistance. State v. Ezzell, 182 N.C. App. 417, 642 S.E.2d 274, cert. denied, appeal dismissed, 361 N.C. 432, 649 S.E.2d 390 (2007).

I. GENERAL CONSIDERATION.

Burden of Proof. - When the State undertakes a prosecution for unlawful homicide, it assumes the burden of producing evidence sufficient to prove that the deceased died as the result of a criminal act committed by the defendant. State v. Jones, 15 N.C. App. 537, 190 S.E.2d 278 (1972).

In a prosecution for manslaughter, the State must produce evidence sufficient to establish beyond a reasonable doubt that the death proximately resulted from defendants' unlawful acts. State v. Cummings, 46 N.C. App. 680, 265 S.E.2d 923, aff'd, 301 N.C. 374, 271 S.E.2d 277 (1980); State v. Brown, 80 N.C. App. 307, 342 S.E.2d 42 (1986).

The act of the accused need not be the immediate cause of death; he is legally accountable if the direct cause is the natural result of the criminal act. State v. Cummings, 301 N.C. 374, 271 S.E.2d 277 (1980).

Nor the sole proximate cause of the death, nor the last act in sequence of time. There may be more than one proximate cause of the death in question. It is enough if defendants' unlawful acts join and concur with other causes in producing the result. State v. Cummings, 46 N.C. App. 680, 265 S.E.2d 923, aff'd, 301 N.C. 374, 271 S.E.2d 277 (1980); State v. Brown, 80 N.C. App. 307, 342 S.E.2d 42 (1986).

Use of Pistol as Aggravating Factor. - Where defendant was convicted of involuntary manslaughter based on evidence that he had shot and killed victim outside nightclub, defendant's possession and use of a pistol could not be used as a factor in aggravation of the crime of voluntary manslaughter. However, the trial court could properly have found as a nonstatutory aggravating factor that defendant returned to the nightclub carrying a loaded pistol after an earlier encounter with the owner. State v. McKinney, 88 N.C. App. 659, 364 S.E.2d 743 (1988).

Use As Prior Conviction For Violent Habitual Felon Charge - There was substantial evidence that defendant had two prior felony convictions because, even though one of the judgments listed the convicted person's race as black while defendant was white, G.S. 14-7.10 created the requirements for a statutory prima facie case, and since the prosecution met that standard, any discrepancies in the details contained in the judgments were for the jury to consider in weighing the evidence; the trial court also declined to dismiss the charge on grounds that one of the convictions did not qualify for use as an underlying felony, as voluntary manslaughter was a superseded offense pursuant to G.S. 14-7.7(b)(2) where the offense had been upgraded by the General Assembly to a class D felony. 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), appeal dismissed, review denied, 357 N.C. 255, 583 S.E.2d 289 (2003), 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).

Reversal for Improper Argument. - Conviction was reversed and the defendant was granted a new trial where the prosecutor improperly argued that "there's a lot of public sentiment at this point against driving and drinking, causing accidents on the highway." The argument went outside the record and appealed to the jury to convict the defendant because impaired drivers had caused other accidents; such statements could only be construed as telling the jury that the citizens of the community sought and demanded conviction and punishment of the defendant. State v. Scott, 314 N.C. 309, 333 S.E.2d 296 (1985).

Trial court erred in failing to submit aggravating factors to the jury before imposing an aggravated sentences on defendant for his two manslaughter convictions; as defendant was entitled to a jury trial on the charge, any aggravating factor had to be submitted to the jury before an aggravated sentence could be imposed. State v. Speight, 359 N.C. 602, 614 S.E.2d 262 (2005), vacated, remanded, North Carolina v. Speight, 126 S. Ct. 2977 (U.S. 2006) (as to Blakely error being subject to harmless review).

Applied in 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); State v. Howard, 272 N.C. 144, 157 S.E.2d 665 (1967); State v. Meadows, 272 N.C. 327, 158 S.E.2d 638 (1968); State v. Brown, 282 N.C. 117, 191 S.E.2d 659 (1972); State v. Wallace, 16 N.C. App. 647, 192 S.E.2d 642 (1972); State v. Harrington, 286 N.C. 327, 210 S.E.2d 424 (1974); State v. Honeycutt, 21 N.C. App. 342, 204 S.E.2d 238 (1974); State v. Chappell, 24 N.C. App. 656, 211 S.E.2d 828 (1975); State v. Allmond, 27 N.C. App. 29, 217 S.E.2d 734 (1975); State v. Rivers, 64 N.C. App. 554, 307 S.E.2d 588 (1983).

Cited in Lofton v. Lofton, 26 N.C. App. 203, 215 S.E.2d 861 (1975); State v. Davis, 290 N.C. 511, 227 S.E.2d 97 (1976); State v. Walters, 33 N.C. App. 521, 235 S.E.2d 906 (1977); Carey v. Garrison, 452 F. Supp. 485 (W.D.N.C. 1978); Reeves v. Reed, 596 F.2d 628 (4th Cir. 1979); State v. Daniels, 300 N.C. 105, 265 S.E.2d 217 (1980); State v. Milam, 65 N.C. App. 788, 310 S.E.2d 141 (1984); State v. Mitchell, 67 N.C. App. 549, 313 S.E.2d 201 (1984); State v. Scott, 71 N.C. App. 570, 322 S.E.2d 613 (1984); State v. Green, 77 N.C. App. 429, 335 S.E.2d 176 (1985); State v. Edgerton, 86 N.C. App. 329, 357 S.E.2d 399 (1987); State v. Brown, 87 N.C. App. 13, 359 S.E.2d 265 (1987); State v. Jones, 358 N.C. 473, 598 S.E.2d 125 (2004); In re K.T.L., 177 N.C. App. 365, 629 S.E.2d 152 (2006), review denied, 362 N.C. 472 642 S.E.2d 442 (2007).

II. MANSLAUGHTER.

A. IN GENERAL.

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Definitions. - Manslaughter is the unlawful killing of a human being without malice, without premeditation and deliberation, and without the intention to kill or to inflict serious bodily injury. State v. Kea, 256 N.C. 492, 124 S.E.2d 174 (1962); State v. Benge, 272 N.C. 261, 158 S.E.2d 70 (1967); 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); State v. Richardson, 14 N.C. App. 86, 187 S.E.2d 435 (1972), cert. denied, 284 N.C. 258, 200 S.E.2d 658 (1973); State v. Bunn, 283 N.C. 444, 196 S.E.2d 777 (1973); State v. Spencer, 27 N.C. App. 301, 219 S.E.2d 231 (1975); State v. Cousins, 289 N.C. 540, 223 S.E.2d 338 (1976); State v. Jones, 291 N.C. 681, 231 S.E.2d 252 (1977); State v. Stewart, 292 N.C. 219, 232 S.E.2d 443 (1977); State v. Alston, 295 N.C. 629, 247 S.E.2d 898 (1978); State v. Marshall, 304 N.C. 167, 282 S.E.2d 422 (1981); State v. Best, 59 N.C. App. 96, 295 S.E.2d 774 (1982).

Intentional or Unintentional Killing. - Voluntary manslaughter is the intentional killing of a person without malice, while involuntary manslaughter is the unintentional killing of a person without malice. Stout v. Grain Dealers Mut. Ins. Co., 307 F.2d 521 (4th Cir. 1962); State v. Fox, 18 N.C. App. 523, 197 S.E.2d 265, cert. denied, 283 N.C. 755, 198 S.E.2d 725 (1973).

Adequate Provocation. - A killing is without malice if the defendant acts in the heat of passion upon adequate provocation so that the defendant's state of mind overcomes his ability to reason and to control his actions. The act of provocation must be such, however, that it would naturally and reasonably arouse the passions of an ordinary man beyond his power of control. State v. Mathis, 105 N.C. App. 402, 413 S.E.2d 301, cert. denied, 331 N.C. 289, 417 S.E.2d 259 (1992).

Killing Must Be Unintentional. - Where defendant was convicted of involuntary manslaughter as a lesser included offense of second degree murder, and the evidence showed without contradiction that defendant intentionally killed at close range, the judgment would be vacated and defendant discharged, since conviction of involuntary manslaughter required that the killing not be intentional. State v. Benge, 87 N.C. App. 282, 360 S.E.2d 701 (1987).

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); State v. Owens, 65 N.C. App. 107, 308 S.E.2d 494 (1983).

Distinguished by Presence or Absence of Malice. - 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).

It is the absence of malice, premeditation, deliberation, intent to kill, and intent to inflict serious bodily injury that separates involuntary manslaughter from murder and voluntary manslaughter. State v. Greene, 314 N.C. 649, 336 S.E.2d 87 (1985).

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 specific intent to kill is not. - 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).

Involuntary homicide is also "manslaughter." United Servs. Auto. Ass'n v. Wharton, 237 F. Supp. 255 (W.D.N.C. 1965).

When a death is caused by one who was driving under the influence of alcohol, only two elements must exist for the successful prosecution of manslaughter: A willful violation of G.S. 20-138 (now G.S. 20-138.1) and the causal link between that violation and the death. If these elements are present, the State need not demonstrate that defendant violated any other rule of the road, nor that his conduct was in any other way wrongful. State v. McGill, 314 N.C. 633, 336 S.E.2d 90 (1985).

B. VOLUNTARY.

.

Definitions. - Voluntary manslaughter is the unlawful killing of a human being without malice, premeditation or deliberation. State v. Rummage, 280 N.C. 51, 185 S.E.2d 221 (1971); State v. Davis, 15 N.C. App. 395, 190 S.E.2d 434 (1972); 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, cert. denied, 283 N.C. 755, 198 S.E.2d 725 (1973); State v. Christopher, 29 N.C. App. 231, 223 S.E.2d 835 (1976); State v. Foust, 32 N.C. App. 301, 232 S.E.2d 276 (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. Holcomb, 295 N.C. 608, 247 S.E.2d 888 (1978); Gardner v. Forister, 468 F. Supp. 761 (W.D.N.C. 1979); State v. Brown, 300 N.C. 731, 268 S.E.2d 201 (1980); 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); State v. Norris, 303 N.C. 526, 279 S.E.2d 570 (1981); State v. Rinck, 303 N.C. 551, 280 S.E.2d 912 (1981); State v. Robbins, 309 N.C. 771, 309 S.E.2d 188 (1983); State v. Rathbone, 78 N.C. App. 58, 336 S.E.2d 702 (1985); State v. Brown, 80 N.C. App. 307, 342 S.E.2d 42 (1986).

Generally voluntary manslaughter occurs when one kills intentionally but does so in the heat of passion suddenly aroused by adequate provocation or in the exercise of self-defense where excessive force under the circumstances is employed or where the defendant is the aggressor bringing on the affray. Although a killing under these circumstances is both unlawful and intentional, the circumstances themselves are said to displace malice and to reduce the offense from murder to manslaughter. State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978); State v. Ferrell, 300 N.C. 157, 265 S.E.2d 210 (1980); State v. Lindsay, 45 N.C. App. 514, 263 S.E.2d 364 (1980).

One who kills a human being under the influence of sudden passion, produced by adequate provocation sufficient to negate malice, is guilty of manslaughter. State v. Robbins, 309 N.C. 771, 309 S.E.2d 188 (1983); State v. Rathbone, 78 N.C. App. 58, 336 S.E.2d 702 (1985), cert. denied, 316 N.C. 200, 341 S.E.2d 582 (1986).

Malice is not a necessary element of voluntary manslaughter. Reeves v. Reed, 452 F. Supp. 783 (W.D.N.C. 1978), rev'd on other grounds, 596 F.2d 628 (4th Cir. 1979).

Theory of voluntary manslaughter is supported where the victim used words and threatening behavior toward defendant, thereby causing him to feel anger, rage, or furious resentment which rendered his mind incapable of cool reflection. State v. Mathis, 105 N.C. App. 402, 413 S.E.2d 301, cert. denied, 331 N.C. 289, 417 S.E.2d 259 (1992).

Adequate Provocation to Negate Malice. - 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).

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).

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); State v. Long, 87 N.C. App. 137, 360 S.E.2d 121 (1987).

Issue of Proximate Cause Properly Submitted to Jury. - In prosecution for voluntary manslaughter, issue of proximate cause of victim's death was properly submitted to the jury, where pathologist testified that victim died as a result of complications from the bullet wound to his chest and abdomen inflicted by defendant, even though victim's death was precipitated by his decision against medical advice to undergo colostomy reversal surgery. State v. Gilreath, 118 N.C. App. 200, 454 S.E.2d 871 (1995).

Lesser Included Offense of Second Degree Murder Premised on Acting in Concert. - Voluntary manslaughter can be a lesser included offense of second degree murder when premised on the doctrine of acting in concert. State v. McCoy, 122 N.C. App. 482, 470 S.E.2d 542 (1996).

Defendant's convictions on both assault with a deadly weapon inflicting serious injury and attempted voluntary manslaughter for shooting a person were mutually exclusive offenses and the trial court's consolidation of the offenses into a single judgment was error that mandated a new trial; for the jury to convict on both offenses, it had to find either that defendant did not have the intent to kill, which would support the assault offense, or that he had the intent to kill, but that such intent was negated by sudden provocation, which would support the attempted manslaughter charge. State v. Hames, 170 N.C. App. 312, 612 S.E.2d 408 (2005), cert. denied, stay denied, 360 N.C. 70, 622 S.E.2d 496 (2005).

Extraordinary Mitigating Circumstances Not Found. - When defendant pled guilty to voluntary manslaughter after acceding to defendant's wife's request to help the wife end the wife's life, a trial court accurately understood the law by declining to find extraordinary mitigating circumstances sparing defendant from an otherwise mandatory active sentence, as the court correctly described an extraordinary factor as one "greater than in a normal case" and correctly stated the quality of factors, not the quantity, was the court's prime consideration, accurately conveying the law that the victim's consent and participation or the support of defendant's family were only extraordinary mitigating factors if their quality and nature were substantially greater than the normal case. State v. Leonard, 258 N.C. App. 129, 811 S.E.2d 658 (2018).

C. INVOLUNTARY.

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Definitions. - Involuntary manslaughter is the unlawful killing of a human being, unintentionally and without malice, proximately resulting from the commission of an unlawful act not amounting to a felony, or resulting from some act done in an unlawful or culpably negligent manner, when fatal consequences were not improbable under all the facts existent at the time, or resulting from the culpably negligent omission to perform a legal duty. State v. Lawson, 6 N.C. App. 1, 169 S.E.2d 265 (1969); State v. Stimpson, 279 N.C. 716, 185 S.E.2d 168 (1971); State v. Rummage, 280 N.C. 51, 185 S.E.2d 221 (1971); State v. Holshouser, 15 N.C. App. 469, 190 S.E.2d 420 (1972); State v. Robinson, 15 N.C. App. 542, 190 S.E.2d 427 (1972); State v. Ward, 286 N.C. 304, 210 S.E.2d 407 (1974), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3206, 49 L. Ed. 2d 1207 (1976); State v. Redfern, 291 N.C. 319, 230 S.E.2d 152 (1976); State v. Everhart, 291 N.C. 700, 231 S.E.2d 604 (1977); State v. Waite, 32 N.C. App. 279, 232 S.E.2d 278 (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. Lindsay, 45 N.C. App. 514, 263 S.E.2d 364 (1980); State v. Oxendine, 300 N.C. 720, 268 S.E.2d 212 (1980); State v. McAdams, 51 N.C. App. 140, 275 S.E.2d 500 (1981); State v. Martin, 52 N.C. App. 373, 278 S.E.2d 305, cert. denied, 303 N.C. 549, 281 S.E.2d 399 (1981); State v. Norris, 303 N.C. 526, 279 S.E.2d 570 (1981); State v. Flaherty, 55 N.C. App. 14, 284 S.E.2d 565 (1981); State v. Atkins, 58 N.C. App. 146, 292 S.E.2d 744, cert. denied and appeal dismissed, 306 N.C. 744, 295 S.E.2d 480 (1982); State v. Matthis, 59 N.C. App. 233, 296 S.E.2d 20 (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. Hamilton, 77 N.C. App. 506, 335 S.E.2d 506 (1985); State v. Greene, 314 N.C. 649, 336 S.E.2d 87 (1985); State v. McGill, 314 N.C. 633, 336 S.E.2d 90 (1985); State v. Bullard, 79 N.C. App. 440, 339 S.E.2d 664 (1986); State v. Fisher, 318 N.C. 512, 350 S.E.2d 334 (1986); State v. Daniels, 87 N.C. App. 287, 360 S.E.2d 470, cert. denied, 321 N.C. 122, 361 S.E.2d 91 (1987).

Involuntary manslaughter is the unlawful killing of a human being without malice, without premeditation and deliberation, and without intention to kill or inflict serious bodily injury. State v. Davis, 15 N.C. App. 395, 190 S.E.2d 434 (1972); State v. Cannady, 16 N.C. App. 569, 192 S.E.2d 677 (1972); State v. Stewart, 292 N.C. 219, 232 S.E.2d 443 (1977); State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978); State v. Haith, 48 N.C. App. 319, 269 S.E.2d 205, appeal dismissed, 301 N.C. 403, 273 S.E.2d 449 (1980); State v. Norris, 303 N.C. 526, 279 S.E.2d 570 (1981); State v. Best, 59 N.C. App. 96, 295 S.E.2d 774 (1982); State v. Daniels, 87 N.C. App. 287, 360 S.E.2d 470, cert. denied, 321 N.C. 122, 361 S.E.2d 91 (1987).

Involuntary manslaughter is the unintentional killing of a human being without malice, proximately caused by (1) an unlawful act not amounting to a felony nor naturally dangerous to human life, or (2) a culpably negligent act or omission. State v. Wingard, 317 N.C. 590, 346 S.E.2d 638 (1986); 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).

Involuntary Manslaughter of Children By Starvation or Malnutrition. - In cases of starvation or malnutrition of children by their parents or guardians, three elements must exist: (1) the defendant must have a duty to adequately feed and nourish the child; (2) the defendant must refuse to feed and nourish the child, either willfully or by his/her culpable negligence; and (3) the defendant's actions, or inactions, must proximately result in the child's death. State v. Fritsch, 132 N.C. App. 262, 511 S.E.2d 325 (1999), cert. granted, 350 N.C. 841, 538 S.E.2d 576 (1999), aff'd in part and rev'd in part, 351 N.C. 373, 526 S.E.2d 451 (2000).

Homicide Must Have Been Unintentional and Without Malice. - To constitute involuntary manslaughter, the homicide must have been without intention to kill or inflict serious bodily injury, and without either express or implied malice. State v. Foust, 258 N.C. 453, 128 S.E.2d 889 (1963).

Unintentional Killing by Intentional Act. - While involuntary manslaughter imports an unintentional killing, i.e., the absence of a specific intent to kill, it is accomplished by means of some intentional act. State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978).

Although involuntary manslaughter does not concern intent to kill, it does connote an intentional act, like the defendant voluntarily drawing his gun. State v. Boyd, 61 N.C. App. 238, 300 S.E.2d 578, cert. denied, 308 N.C. 545, 304 S.E.2d 238 (1983).

A death that occurs as a result of constituting involuntary manslaughter, driving while impaired, although perhaps unintentional, is not an accident, because this result is reasonably foreseeable. Baker v. Provident Life & Accident Ins. Co., 171 F.3d 939 (4th Cir. 1999).

An intentional violation of some statute designed for the protection of people which proximately though unintentionally causes death can support a conviction of involuntary manslaughter. State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978).

Violation of "Safety" Statute or Ordinance. - The intentional, willful, or wanton violation of any "safety" statute or ordinance, which proximately results in death, can support a conviction of involuntary manslaughter. State v. Powell, 109 N.C. App. 1, 426 S.E.2d 91 (1993).

Same - Illustrative Case. - Where evidence was presented, including physical evidence, that defendant's dogs, running loose, attacked and killed the victim, and that the dogs weighing one hundred pounds and eighty pounds, respectively, were trained by defendant to be aggressive and to scare people, there was substantial evidence that defendant intentionally violated a safety ordinance, and that such violation was the proximate cause of the victim's death; therefore, the trial court properly submitted the charge of involuntary manslaughter to the jury. State v. Powell, 109 N.C. App. 1, 426 S.E.2d 91 (1993).

Instruction on involuntary manslaughter is not required, regardless of whether the actual killing was intentional or unintentional, when the intentional act leading to death was naturally dangerous to human life. State v. Lawrance, 94 N.C. App. 380, 380 S.E.2d 156, cert. denied, 325 N.C. 548, 385 S.E.2d 506 (1989).

Evidence Held Not to Support Involuntary Manslaughter Instruction. - Where defendant was convicted of suffocating his seven-month-old son, trial court correctly determined that the evidence presented at trial did not support an involuntary manslaughter instruction; although defendant might not have intended to actually kill his son, the evidence certainly tended to show that he intended to press the child's face into the mattress. State v. Lawrance, 94 N.C. App. 380, 380 S.E.2d 156, cert. denied, 325 N.C. 548, 385 S.E.2d 506 (1989).

Defendant was not entitled to a jury instruction on involuntary manslaughter where the State's evidence showed that the defendant had knowledge of and experience with farm pesticides; that he went to a farm to obtain the deadly pesticide used in the murder; that he concocted a story as to why he needed the poison; that he showed the poison to two people; that he put it in his children's Kool-Aid; that he failed to say anything at the hospital as to the real reason his children were sick; and where no evidence except the defendant's denial negated the State's evidence. 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).

A mere assault which proximately results in death, but which does not indicate a total disregard for human life and is committed with no intent to kill or to inflict serious bodily injury, will support, at most, a verdict of involuntary manslaughter. State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978).

Punishment for involuntary manslaughter may be by fine or imprisonment or both in the discretion of the court. The imprisonment, however, may not exceed ten years. State v. Swinney, 271 N.C. 130, 155 S.E.2d 545 (1967).

Defendant's contention that involuntary manslaughter was a misdemeanor for which punishment could not exceed two years was not sustained in State v. Swinney, 271 N.C. 130, 155 S.E.2d 545 (1967); State v. Efird, 271 N.C. 730, 157 S.E.2d 538 (1967).

Involuntary manslaughter is a lesser included offense of murder and of voluntary manslaughter. State v. Greene, 314 N.C. 649, 336 S.E.2d 87 (1985); State v. Mecado, 314 N.C. 659, 336 S.E.2d 87 (1985).

Conviction for Involuntary Manslaughter Upheld. - Defendant's conviction of involuntary manslaughter under G.S. 14-18, was affirmed; the trial court properly refused to admit a synopsis of defendant's statement given to police officer, as the synopsis did not did not fall within the recorded recollection hearsay exception under G.S. 8C-1, N.C. R. Evid. 803(5), because there was no showing that defendant had an insufficient recollection of events, and the trial court properly denied defendant's motion to dismiss pursuant to G.S. 15A-954, because the State adequately proved the elements of the crime of voluntary manslaughter. State v. Alston, 161 N.C. App. 367, 588 S.E.2d 530 (2003), aff'd, 359 N.C. 61, 602 S.E.2d 674 (2004).

Blakely Errors Were Harmless. - Blakely errors committed by the trial court in sentencing defendant for involuntary manslaughter were harmless as defendant knowingly created a great risk of death to more than one person by means of a weapon or device that would normally be hazardous to more than one person since: (1) defendant operated defendant's vehicle in a reckless manner by speeding, driving while intoxicated and with THC and morphine in defendant's blood, and weaving in and out of traffic; (2) a reasonable person would have known that a great risk of death had been created; (3) defendant's blood alcohol concentration was 0.10 two hours after the collision; (4) defendant acknowledged that the two involuntary manslaughter convictions showed that in the course of conduct as to each offense defendant killed another; and (5) since there were two involuntary manslaughter convictions, the evidence used to prove an element of one offense could be used to support an aggravating factor of a separate joined offense. State v. Speight, 186 N.C. App. 93, 650 S.E.2d 452 (2007).

For discussion of involuntary manslaughter, see State v. Crisp, 64 N.C. App. 493, 307 S.E.2d 776 (1983); State v. Allen, 77 N.C. App. 142, 334 S.E.2d 410 (1985).

III. HEAT OF PASSION.

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Heat of Passion Defined. - 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); State v. Long, 87 N.C. App. 137, 360 S.E.2d 121 (1987).

Heat of passion is defined as rage, anger, hatred or furious resentment rendering the mind incapable of cool reflection. 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).

A killing is without malice if the one who kills acted while under the influence of passion or in the heat of blood produced by adequate provocation. 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).

When one spouse kills the other in a heat of passion engendered by the discovery of the deceased and a paramour in the very act of intercourse, or under circumstances clearly indicating that the act had just been completed, or was "severely proximate," and the killing follows immediately, it is manslaughter. State v. Ward, 286 N.C. 304, 210 S.E.2d 407 (1974), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3206, 49 L. Ed. 2d 1207 (1976); State v. Long, 87 N.C. App. 137, 360 S.E.2d 121 (1987).

A mere suspicion, belief or knowledge of past adultery will not change the character of a homicide from murder to manslaughter. State v. Long, 87 N.C. App. 137, 360 S.E.2d 121 (1987).

IV. RECKLESS USE OF FIREARMS.

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Deaths Caused by Wanton or Reckless Use of Firearms. - With few exceptions, it may be said that every unintentional killing of a human being proximately caused by a wanton or reckless use of firearms, in the absence of intent to discharge the weapon or in the belief that it is not loaded, and under circumstances not evidencing a heart devoid of a sense of social duty is involuntary manslaughter. State v. Foust, 258 N.C. 453, 128 S.E.2d 889 (1963); State v. Davis, 15 N.C. App. 395, 190 S.E.2d 434 (1972); State v. Adcock, 24 N.C. App. 102, 210 S.E.2d 127 (1974), cert. denied, 286 N.C. 416, 211 S.E.2d 796 (1975); State v. Redfern, 291 N.C. 319, 230 S.E.2d 152 (1976); State v. Best, 59 N.C. App. 96, 295 S.E.2d 774 (1982); State v. Robbins, 309 N.C. 771, 309 S.E.2d 188 (1983).

One who handles a firearm in a reckless or wanton manner and thereby unintentionally causes the death of another is guilty of involuntary manslaughter. State v. Moore, 275 N.C. 198, 166 S.E.2d 652 (1969); State v. Putnam, 24 N.C. App. 570, 211 S.E.2d 493 (1975); State v. Boyd, 61 N.C. App. 238, 300 S.E.2d 578, cert. denied, 308 N.C. 545, 304 S.E.2d 238 (1983).

Ordinarily an unintentional homicide resulting from the reckless use of firearms "in the absence of intent to discharge the weapon, or in the belief that it is not loaded, and under the circumstances not evidencing a heart devoid of a sense of social duty, is involuntary manslaughter." When the circumstances do show a heart devoid of a sense of social duty, the homicide cannot be involuntary manslaughter. State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978); State v. Oxendine, 300 N.C. 720, 268 S.E.2d 212 (1980).

An unintentional killing with a firearm resulting from culpable negligence is ordinarily involuntary manslaughter, unless the defendant acts with a heart devoid of a sense of social duty, or with a depravity of mind and disregard for human life. State v. Lytton, 319 N.C. 422, 355 S.E.2d 485 (1987).

At common law and under this section one who points a loaded gun at another, though without intention of discharging it, if the gun goes off accidentally and kills, commits manslaughter. State v. Stimpson, 279 N.C. 716, 185 S.E.2d 168 (1971).

Facts Supporting Charge Concerning Negligent Handling of Gun. - The showing that defendant was seated at a table, deceased was standing near him, defendant pulled the gun from his pocket after which it fired with the bullet striking deceased in the forehead, would certainly be some evidence that defendant intentionally pointed the gun at the deceased even though it may have fired accidentally. There were sufficient facts presented to support the charge concerning whether defendant handled the gun in a criminally negligent manner. State v. Jones, 15 N.C. App. 537, 190 S.E.2d 278 (1972).

V. CULPABLE NEGLIGENCE.

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Definitions. - Culpable negligence in the law of involuntary manslaughter is something more than actionable negligence in the law of torts, and is such recklessness or carelessness, proximately resulting in injury or death, as is incompatible with a proper regard for the safety or rights of others. State v. Gainey, 29 N.C. App. 653, 225 S.E.2d 843 (1976), rev'd on other grounds, 292 N.C. 627, 234 S.E.2d 610 (1977).

Culpable negligence in the criminal law requires more than the negligence necessary to sustain a recovery in tort. Rather, for negligence to constitute the basis for the imposition of criminal sanctions, it must be such reckless or careless behavior that the act imports a thoughtless disregard of the consequences of the act or the act shows a heedless indifference to the rights and safety of others. There must be negligence of a gross and flagrant character, evincing reckless disregard of human life. State v. Newcomb, 26 N.C. App. 595, 216 S.E.2d 730, cert. denied, 288 N.C. 249, 217 S.E.2d 680 (1975); State v. Everhart, 291 N.C. 700, 231 S.E.2d 604 (1977); State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978); State v. Flaherty, 55 N.C. App. 14, 284 S.E.2d 565 (1981).

Violation of Safety Statute or Ordinance. - In a prosecution for involuntary manslaughter, the violation of a safety statute regulating the use of highways does not constitute culpable negligence unless such violation is intentional, willful or wanton, or unless the violation, though unintentional, is accompanied by recklessness or is under circumstances from which death or injury to others might have been reasonably anticipated. State v. Gainey, 29 N.C. App. 653, 225 S.E.2d 843 (1976), rev'd on other grounds, 292 N.C. 627, 234 S.E.2d 610 (1977).

An intentional, willful or wanton violation of a statute or ordinance, designed for the protection of human life or limb, which proximately results in injury or death, is culpable negligence. State v. Stewardson, 32 N.C. App. 344, 232 S.E.2d 308, cert. denied, 292 N.C. 643, 235 S.E.2d 64 (1977); State v. Jones, 32 N.C. App. 408, 232 S.E.2d 475, cert. denied, 292 N.C. 643, 235 S.E.2d 63 (1977); State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978); State v. Atkins, 58 N.C. App. 146, 292 S.E.2d 744, cert. denied and appeal dismissed, 306 N.C. 744, 295 S.E.2d 480 (1982).

Where defendant's dog attacked and killed jogger, the State presented substantial evidence of each element of the offense of involuntary manslaughter based on culpable negligence where a city safety ordinance was involved. State v. Powell, 336 N.C. 762, 446 S.E.2d 26 (1994).

Deaths Resulting from Culpable Negligence. - 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).

A death which is proximately caused by culpable negligence is involuntary manslaughter. State v. Lane, 77 N.C. App. 741, 336 S.E.2d 410 (1985).

Culpable Negligence Not Sufficient to Support Murder Charge. - 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).

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).

Intentional Shooting Can Be Culpable Negligence. - It is not true that in order to entitle defendant to an instruction on involuntary manslaughter, the discharge of a weapon must necessarily be unintentional. An intentional shooting at an object can amount to culpable negligence, which is one of the states of mind required for an instruction on involuntary manslaughter. State v. Brewer, 325 N.C. 550, 386 S.E.2d 569 (1989), cert. denied, 495 U.S. 951, 110 S. Ct. 2215, 109 L. Ed. 2d 541 (1990).

Involuntary Manslaughter While Operating Motor Vehicle. - A defendant may be convicted of involuntary manslaughter in connection with the operation of a motor vehicle upon proof by the State that defendant (1) violated a safety statute, (2) in a culpably negligent manner, and (3) that such violation was a proximate cause of the victim's death. State v. Bailey, 76 N.C. App. 610, 334 S.E.2d 266 (1985), overruled on other grounds, State v. Drdak, 330 N.C. 587, 411 S.E.2d 604 (1992).

Trial court did not err in denying defendant's motion to dismiss the charges because, although defendant's actions while driving were not impaired by alcohol, they were still sufficient to establish the culpable negligence needed to support both involuntary manslaughter and assault with a deadly weapon inflicting serious injury. A witness noticed inappropriate driving by both defendant and the decedent prior to their vehicles approaching a sharp curve, as they approached the curve, defendant attempted to pass the decedent and the witness despite having no visibility around the curve, and defendant's attempt to pass the vehicles at that particular time was in blatant disregard of safety concerns associated with that portion of the highway and a violation of G.S. 20-150. State v. Wade, 161 N.C. App. 686, 589 S.E.2d 379 (2003), cert. denied, 358 N.C. 241, 594 S.E.2d 33 (2004).

Death by Vehicle as Lesser Included Offense. - Death by vehicle under G.S. 20-141.4(a), repealed and revised as G.S. 20-141.4(a2), is a lesser included offense of the common law felony of involuntary manslaughter, made punishable by G.S. 14-18. The distinction is that the lesser offense does not depend upon the presence of culpable or criminal negligence, it being enough to convict if death proximately results from the violation of a traffic statute or ordinance. State v. Lackey, 71 N.C. App. 581, 323 S.E.2d 32 (1984).

Evidence tending to show that the deceased said, "Don't shoot me," standing alone, was not sufficient to raise an inference that the defendant intentionally pointed the weapon at her, or that he handled it in such a careless and reckless manner as to amount to culpable negligence. State v. Holshouser, 15 N.C. App. 469, 190 S.E.2d 420 (1972).

Evidence that death was caused by defendant inadvertently stabbing victim in the chest while not attempting or intending to do so clearly met the requirement that the act be done in a culpable or criminally negligent way. State v. Daniels, 87 N.C. App. 287, 360 S.E.2d 470, cert. denied, 321 N.C. 122, 361 S.E.2d 91 (1987).

VI. SELF-DEFENSE.

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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).

Killing in Self-Defense May Be Voluntary Manslaughter. - Under given circumstances a person may be justified in intentionally killing when he acts in self-defense, yet such person may be guilty of voluntary manslaughter when an intentional killing results from excessive use of force while he is acting in self-defense. State v. Rummage, 280 N.C. 51, 185 S.E.2d 221 (1971); State v. Locklear, 25 N.C. App. 74, 212 S.E.2d 404 (1975); 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).

A killing in the exercise of self-defense, but which fails to meet the standard of perfect self-defense, is voluntary manslaughter. State v. Rathbone, 78 N.C. App. 58, 336 S.E.2d 702 (1985).

Voluntary Manslaughter Based on Imperfect Self-Defense. - A defendant is entitled to an instruction on voluntary manslaughter based on imperfect self-defense only if evidence is introduced from which the following may be found: (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; and (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. 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).

Reduction of Second-Degree Murder to Voluntary Manslaughter. - Second degree murder may be reduced to voluntary manslaughter if a 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).

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).

Right Not Absolute. - The right to kill in defense of one's self or a family member is not absolute. When one uses excessive force in the exercise of his right of self-defense, he loses the benefit of perfect self-defense and is guilty at least of voluntary manslaughter. State v. Rathbone, 78 N.C. App. 58, 336 S.E.2d 702 (1985).

Battered Spouse. - For case declining to expand the law of self-defense so as to entitle a battered spouse who killed her intoxicated husband while he slept to jury instructions on either perfect or imperfect self-defense, see State v. Norman, 324 N.C. 253, 378 S.E.2d 8 (1989).

Defense Unavailable for Involuntary Manslaughter. - In a prosecution for second-degree murder in which all the evidence showed that the defendant intentionally shot deceased and thereby caused his death, and the defendant relied on the defense of self-defense which is unavailable for a charge of involuntary manslaughter, the trial court committed prejudicial error in submitting involuntary manslaughter to the jury, and where the jury found the defendant guilty of involuntary manslaughter and acquitted the defendant of all other degrees of homicide, the defendant was entitled to be discharged. State v. Cason, 51 N.C. App. 144, 275 S.E.2d 221 (1981).

Neither permanency of residence nor a leasehold interest in the premises is required before a person is legally justified in standing her ground, rather than retreating, before using deadly force in self-defense. One must show only that she is a member of a household, however temporarily, and that she possesses an intent to reside in that particular place at the time of the attack. State v. Stevenson, 81 N.C. App. 409, 344 S.E.2d 334 (1986).

Charge of Self-Defense Not Erroneous. - See State v. Pearson, 24 N.C. App. 410, 210 S.E.2d 887, aff'd, 288 N.C. 34, 215 S.E.2d 598 (1975).

Trial court's charge that a person may not ordinarily claim self-defense when he has used deadly force to quell an assault, standing alone, unduly restricted defendant's plea of self-defense. However, any error committed was completely removed by the subsequent instruction detailing what defendant had to show to excuse his act on the ground of self-defense. State v. Pearson, 24 N.C. App. 410, 210 S.E.2d 887, aff'd, 288 N.C. 34, 215 S.E.2d 598 (1975).

Evidence that defendant believed it necessary to kill victim before victim killed him is not sufficient to justify an instruction as to voluntary manslaughter based on imperfect self-defense. 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 of Previous Assaults Properly Excluded. - Exclusion of evidence of previous assaults by the deceased on the defendant was proper, where there was no evidence that the defendant acted in self-defense. State v. Matthis, 59 N.C. App. 233, 296 S.E.2d 20 (1982).

Punishment Following Plea of Nolo Contendere. - Notwithstanding evidence that defendant shot in self-defense, a plea of nolo contendere permitted the court to impose a sentence of not more than ten years for involuntary manslaughter. State v. Swinney, 271 N.C. 130, 155 S.E.2d 545 (1967).

VII. INSTRUCTIONS TO JURY.

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Charge as to Lesser Degrees of Same Crime. - While under the provisions of G.S. 15-170 the trial judge was required to charge upon evidence on the lesser degrees of the same crime for which the prisoner was being tried, it was not required that he charge upon the principles of an assault with a deadly weapon, where the prisoner was charged with murder, and the killing of the deceased by him had been admitted, and the judge had correctly charged upon the crime of manslaughter, the lowest degree of an unlawful killing of human being. State v. Lutterloh, 188 N.C. 412, 124 S.E. 752 (1924).

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).

When Supported by the Evidence. - A proper charge on the issue of voluntary manslaughter is required when the evidence would support a finding either (a) that the defendant acted properly in self-defense except for the use of excessive force in repelling the assailant, or (b) that the defendant killed while in the heat of passion brought on by adequate provocation, amounting to an assault or threatened assault, not originating with the defendant. Gardner v. Forister, 468 F. Supp. 761 (W.D.N.C. 1979).

Because involuntary manslaughter is a lesser included offense of the indicted crime of murder, an instruction on its elements is proper only if there is evidence to support it. State v. Boyd, 61 N.C. App. 238, 300 S.E.2d 578, cert. denied, 308 N.C. 545, 304 S.E.2d 238 (1983).

The submission to the jury of a possible verdict of involuntary manslaughter when defendant has been charged with murder is necessary only when there is evidence from which jury could find that such an included crime was committed. State v. Bullard, 79 N.C. App. 440, 339 S.E.2d 664 (1986).

In a murder trial, the sole factor determining the judge's obligation to give an instruction on voluntary manslaughter is whether there is any evidence in the record which might support a conviction for the less grievous offense. State v. Sullivan, 86 N.C. App. 316, 357 S.E.2d 414, cert. denied, 321 N.C. 123, 361 S.E.2d 602 (1987).

Evidence Sufficient to Go to Jury. - Where there was no real evidence of malice, but the jury could reasonably find from the evidence that deceased's death had to be ascribed to the defendant's unlawful and culpably negligent conduct, which it could reasonably have been foreseen was likely to result in serious injury, the evidence was sufficient to go to the jury on a charge of involuntary manslaughter. State v. Trueblood, 39 N.C. App. 459, 250 S.E.2d 666 (1979).

Evidence Requiring Instruction on Proximate Cause. - In a prosecution of a motorist for manslaughter in the deaths of two small boys who were struck by defendant's car as defendant was attempting to pass another vehicle traveling in the same direction, evidence that the children were walking on the hard surface when they were struck and that the preceding car speeded up as defendant attempted to pass it, required the court to instruct the jury upon the conduct of the children in walking on the hard surface and the conduct of the other driver in increasing his speed, as bearing upon the question of whether defendant's negligence was a proximate cause of the deaths. State v. Harrington, 260 N.C. 663, 133 S.E.2d 452 (1963).

Evidence of Heat of Passion Required for Instruction on Voluntary Manslaughter. - Voluntary manslaughter is defined as unlawful killing of a human being without malice, in the heat of passion as a result of legally sufficient provocation. Therefore, to warrant an instruction on voluntary manslaughter, there must be evidence that the killing occurred while the defendant was in heat of passion caused by legally sufficient provocation. State v. Upright, 72 N.C. App. 94, 323 S.E.2d 479 (1984), cert. denied, 313 N.C. 513, 313 N.C. 610, 329 S.E.2d 400, 332 S.E.2d 82 (1985).

Absent any evidence to show heat of passion on sudden provocation, the trial court did not err by failing to submit possible verdicts of voluntary manslaughter. State v. Weeks, 322 N.C. 152, 367 S.E.2d 895 (1988).

If there is any evidence of heat of passion on sudden provocation, either in the state's evidence or offered by the defendant, the trial court must submit the possible verdict of voluntary manslaughter to the jury. State v. Weeks, 322 N.C. 152, 367 S.E.2d 895 (1988).

To have been properly entitled to a jury instruction on voluntary manslaughter, defendant was required either to offer his own evidence or to rely upon the State's evidence to show (1) that he stabbed his wife in the heat of passion, (2) that his passion was provoked by acts of his wife which the law regards as adequate provocation, and (3) that the stabbing occurred immediately after the provocation. State v. Tidwell, 323 N.C. 668, 374 S.E.2d 577 (1989).

Failure to Instruct as to Causal Connection Between Defendant's Act and Death. - Trial judge's failure to instruct jury that a verdict of a guilty of manslaughter required proof beyond a reasonable doubt that defendant's act proximately caused the death charged was error, despite plenary evidence upon which the jury could find death was the proximate result of defendant's act. 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).

Failure to Instruct on Involuntary Manslaughter. - In a prosecution for first-degree murder in which the defendant was found guilty of voluntary manslaughter, the trial judge erred in failing to instruct the jury on involuntary manslaughter where the defendant's testimony was, in its entirety, an account of an unintentional killing. State v. Graham, 38 N.C. App. 86, 247 S.E.2d 300 (1978).

Failure to Instruct Defendant Had No Duty to Retreat. - Where the evidence showed that the victim of a fatal shooting was using deadly force, defendant was permitted to stand his ground and kill the victim if defendant believed it necessary and had a reasonable ground for such belief; therefore, as the trial court erred in failing to instruct that defendant had no duty to retreat defendant was entitled a new trial. State v. Nixon, 117 N.C. App. 141, 450 S.E.2d 562 (1994).

Instruction on Excessive Force. - It is difficult to imagine a homicide case in which the evidence supports an instruction on self-defense but not an instruction on voluntary manslaughter based upon an excessive force theory. 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).

Failure to Instruct on Involuntary Manslaughter Upheld. - Assuming error in court's failure to give a charge on involuntary manslaughter, it was harmless in view of the verdict of first-degree murder on the theory of premeditation and deliberation. State v. Hardison, 326 N.C. 646, 392 S.E.2d 364 (1990).

Proof of Self-Defense. - Instruction sufficient to apprise jury that defendant did not have the burden of proving self-defense. State v. Sprinkle, 30 N.C. App. 383, 226 S.E.2d 827 (1976).

Question for the Jury. - Where the evidence is conflicting with respect to the issue of whether the force used by a defendant was excessive under the circumstances, the question is properly submitted to the jury. State v. Rathbone, 78 N.C. App. 58, 336 S.E.2d 702 (1985).

Trial judge properly refused to submit voluntary manslaughter as an alternative verdict, where the State's evidence tended to show a cold, calculated premeditated shooting by defendant, and defendant's evidence, on the other hand, tended to show that he did not shoot victim intentionally and never intended to harm him, and that his gun accidentally discharged as he struggled with victim over the gun, which defendant had picked up to convince victim to stop choking him. State v. Blake, 317 N.C. 632, 346 S.E.2d 399 (1986).

Where the jury did not find defendant was in the grip of sufficient passion to reduce a charge of murder from first-degree to second-degree, then ipso facto it would not have found sufficient passion to find the defendant guilty only of voluntary manslaughter; therefore, the trial court did not err in failing to give the jury an instruction on voluntary manslaughter. State v. Tidwell, 323 N.C. 668, 374 S.E.2d 577 (1989).

Where defendant's stabbing of his wife occurred more than eight hours after the alleged incident of provocation, the trial court was not required to charge the jury on a lesser included offense of voluntary manslaughter. State v. Tidwell, 323 N.C. 668, 374 S.E.2d 577 (1989).

Mental Illness and Alcoholism Held Insufficient to Entitle Defendant to Voluntary Manslaughter Instruction. - 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 an instruction on the lesser-included offense of voluntary manslaughter. State v. Adams, 85 N.C. App. 200, 354 S.E.2d 338 (1987).

In order for an instruction on voluntary manslaughter based on imperfect self-defense to be required, the first two elements of perfect self defense must be shown to exist. State v. Gappins, 320 N.C. 64, 357 S.E.2d 654 (1987).

Correction of Prosecutor's Improper Statement of Law. - Where during closing argument, prosecutor said, "Kind of like, I didn't mean to do it, but, if I did, I'm sorry I did it. That's what voluntary manslaughter is," the prosecutor's explanation of voluntary manslaughter was inadequate but not so grossly improper as to require the trial court to intervene ex mero motu; the trial court's subsequent correct charge on the law of voluntary manslaughter provided adequate correction to any possible confusion created by the prosecutor's language. 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. Hefner, 199 N.C. 778, 155 S.E. 879 (1930).

Instruction on Manslaughter Held Proper. - Where the trial court instructed that defendant would be guilty of manslaughter if "he intentionally and unlawfully stabbed and killed" the victim, any possibility of prejudice in the defective charge was removed where prior to giving the above instruction, the court properly defined manslaughter as "the unlawful killing of a human being without malice, express or implied, and without deliberation or premeditation," and when the jury later requested repeated instructions on the offenses charged, the court again gave a proper definition of manslaughter. State v. Edwards, 24 N.C. App. 303, 210 S.E.2d 273 (1974).

There was no error in submitting to the jury an issue as to defendant's guilt of manslaughter where the evidence would support a finding that defendant unlawfully killed, but without express or implied malice, or that he acted in self-defense but used excessive force, because either finding would warrant a verdict of manslaughter. 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).

Definitions of second-degree murder and voluntary manslaughter in the instructions to the jury in a prosecution for second-degree murder were not prejudicially deficient in that they did not require that the killings be intentional since 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. Alston, 295 N.C. 629, 247 S.E.2d 898 (1978).

Since involuntary manslaughter is a lesser-included offense of voluntary manslaughter and the record contained evidence from which a jury could find that defendant committed involuntary manslaughter, it is proper to submit involuntary manslaughter as a possible verdict charge in defendant's trial for voluntary manslaughter, even though defendant argued self defense and used a knife. The evidence was sufficient for the jury to find defendant acted without any intent to kill or inflict serious injury where it could have concluded defendant either panicked or reacted instinctively upon discovering a man in his bathroom after he was told no one else was in the house. State v. Drew, 162 N.C. App. 682, 592 S.E.2d 27 (2004).

Instruction on Voluntary Manslaughter Held Improper. - Voluntary manslaughter is the intentional unlawful killing of a human being, and therefore an instruction incorporating culpable negligence as an alternative finding is improper, since it does not require intent as a necessary element. St. Paul Fire & Marine Ins. Co. v. Lack, 476 F.2d 583 (4th Cir. 1973).

In a prosecution for second-degree murder involving the death of a child from the so-called "battered child" syndrome, where there was a great disparity in age and size between the victim and her slayer, and particularly where the slayer stood in loco parentis with the child, as a matter of law adequate provocation could not be found to exist so as to justify submission of voluntary manslaughter where the evidence showed that the defendant beat and abused a child unto its death. State v. Vega, 40 N.C. App. 326, 253 S.E.2d 94, appeal dismissed and cert. denied, 297 N.C. 457, 256 S.E.2d 809, cert. denied, 444 U.S. 968, 100 S. Ct. 459, 62 L. Ed. 2d 382 (1979).

Evidence held insufficient to support an instruction on voluntary manslaughter. State v. Sullivan, 86 N.C. App. 316, 357 S.E.2d 414, cert. denied, 321 N.C. 123, 361 S.E.2d 602 (1987).

Instruction on Involuntary Manslaughter Held Proper. - The trial judge, in a prosecution for second-degree murder, properly instructed the jury as to involuntary manslaughter where, in stating that if defendant while caring for his child "intentionally inflicted injury upon that child . . . under the age of sixteen years, and if his death directly resulted . . . defendant . . . would be guilty of involuntary manslaughter," he was referring to an intentional violation of G.S. 14-318.2. State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978).

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).

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).

Failure to Instruct on Involuntary Manslaughter Upheld. - Under the evidence, the trial judge in murder trial did not err in failing to instruct on involuntary manslaughter. State v. Wingard, 317 N.C. 590, 346 S.E.2d 638 (1986).

Where the evidence showed that defendant either premeditated and deliberated and then murdered her husband, or accidentally shot her husband as she contended throughout her trial, the trial court properly refused to submit the lesser included offenses of second degree murder and involuntary manslaughter to the jury. State v. Hickey, 317 N.C. 457, 346 S.E.2d 646 (1986).

Where the defendant admitted that he knowingly slashed and stabbed the deceased with a hunting knife, the defendant's use of such knife indicated a clear intent to inflict great bodily harm or death on the deceased; thus, the defendant's actions would not fit within the definition of involuntary manslaughter, and therefore, the defendant would not qualify for such an instruction. State v. Fisher, 318 N.C. 512, 350 S.E.2d 334 (1986).

Defendant was not entitled to a jury instruction on manslaughter where the evidence for the State tended to show defendant and the victim dated periodically during the year preceding the victim's death, defendant was jealous of other men and did not want the victim to see them, defendant stated he loved the victim but had threatened to kill both the victim and her ex-husband if he caught them together, defendant later followed the victim home from a motel and after the victim told defendant she did not want to see him again, defendant led the victim to a flower bed a few feet away, grabbed her arm, and as she turned her back to defendant, defendant shot the victim in the back of the head killing her. State v. Woodard, 324 N.C. 227, 376 S.E.2d 753 (1989).

In felony murder trial for murder committed during the act of discharging a firearm into an occupied building, a felony under G.S. 14-34.1, where defendant's sole and unequivocal defense was that he was nowhere near the area on the night in question, an instruction on the offense of involuntary manslaughter was not warranted by the evidence. State v. Brewer, 325 N.C. 550, 386 S.E.2d 569 (1989), cert. denied, 495 U.S. 951, 110 S. Ct. 2215, 109 L. Ed. 2d 541 (1990).

Failure to Instruct on Involuntary Manslaughter Held Harmless Error. - Trial court's failure to instruct the jury to consider a possible verdict for the lesser included offense of involuntary manslaughter was harmless error because the trial court gave correct instructions as to possible verdicts on murder in the first and second degrees and the jury found the defendant guilty of the greater crime of murder in the first degree upon a theory of premeditation and deliberation. State v. Young, 324 N.C. 489, 380 S.E.2d 94 (1989).

Failure to Instruct on Involuntary Manslaughter Held Not Plain Error. - The court did not commit "plain error" in failing to charge the jury on involuntary manslaughter, where the only possible evidentiary support for an involuntary manslaughter verdict was defendant's statement to the police to the effect that he did not stab the victim and that she twice ran onto his knife, because defendant did not rely upon the statement in the trial court, but repudiated it as a lie. State v. Pulley, 90 N.C. App. 673, 369 S.E.2d 634 (1988).

Charge of Involuntary Manslaughter Held Error. - If there is evidence of self-defense and no evidence of involuntary manslaughter, it is prejudicial error to submit a charge of involuntary manslaughter in a trial for second-degree murder. State v. Brooks, 46 N.C. App. 833, 266 S.E.2d 3 (1980).

Where the record in a first-degree murder prosecution contained no evidence which tended to show that the victim died as the result of an unlawful act not amounting to a felony or as the result of an unlawful act that was not naturally dangerous to human life, it was error to permit the jury to consider the issue of involuntary manslaughter, and since it appeared that there was a reasonable possibility that the defendant would have been acquitted if the involuntary manslaughter issue had not been submitted, the error had to be held prejudicial. State v. Ataei-Kachuei, 68 N.C. App. 209, 314 S.E.2d 751, cert. denied, 311 N.C. 763, 321 S.E.2d 146 (1984).

The appellate courts of this State have consistently held that it would be error to instruct on involuntary manslaughter when the only evidence of accident has been oral assertions by the defendant, especially where the defense has relied on self-defense. State v. Hamilton, 77 N.C. App. 506, 335 S.E.2d 506 (1985).