SUBCHAPTER I. GENERAL PROVISIONS.

ARTICLE 1. Felonies and Misdemeanors.

Sec.

§ 14-1. Felonies and misdemeanors defined.

A felony is a crime which:

  1. Was a felony at common law;
  2. Is or may be punishable by death;
  3. Is or may be punishable by imprisonment in the State's prison; or
  4. Is denominated as a felony by statute.

Any other crime is a misdemeanor.

History

(1891, c. 205, s. 1; Rev., s. 3291; C.S., s. 4171; 1967, c. 1251, s. 1.)

Cross References. - As to statute of limitations for misdemeanors, see G.S. 15-1.

Legal Periodicals. - For article on punishment for crime in North Carolina, see 17 N.C.L. Rev. 205 (1939).

For brief comparison of criminal law sanctions in two civil rights cases, see 43 N.C.L. Rev. 667 (1965).

For case law survey as to criminal law and procedure, see 44 N.C.L. Rev. 970 (1966); 45 N.C.L. Rev. 910 (1967).

For survey of 1982 law relating to criminal law, see 61 N.C.L. Rev. 1060 (1983).

For article, "Culpability, Dangerousness, and Harm: Balancing the Factors on Which Our Criminal Law Is Predicated," see 66 N.C.L. Rev. 283 (1988).

For essay on how judges can contribute to legal professionalism, see 32 Wake Forest L. Rev. 621 (1997).

For comment, "A Fighting Chance for Outlaws: Strict Scrutiny of North Carolina's Felony Firearms Act," see 32 Campbell L. Rev. 333 (2010).

For article, "Innocence Modified," see 89 N.C. L. Rev. 1083 (2011).

For article, "Is the White Collar Offender Privileged," see 63 Duke L. J. 823 (2014).

CASE NOTES

Constitutionality. - This section was held to be constitutional in State v. Lytle, 138 N.C. 738, 51 S.E. 66 (1905).

Common-Law Provisions. - Up to the time this section was passed the somewhat arbitrary common-law rule was followed as to what crimes were felonies, and what were misdemeanors and under that, conspiracy, and even such grave crimes as perjury and forgery, were misdemeanors. State v. Mallett, 125 N.C. 718, 34 S.E. 651 (1899), aff'd, 181 U.S. 589, 21 S. Ct. 730, 45 L. Ed. 1015 (1901); State v. Holder, 153 N.C. 606, 69 S.E. 66 (1910). See State v. Hill, 91 N.C. 561 (1884).

Punishment Determines Classification of Offenses. - By this section, North Carolina adopted the rule, then almost universally prevalent, by which the nature of the punishment determined the classification of offenses; those which could be punished capitally or by imprisonment in the penitentiary were felonies (as to which there was no statute of limitations), and all others were misdemeanors, as to which prosecutions in this State were barred by two years. State v. Mallett, 125 N.C. 718, 34 S.E. 651 (1899), aff'd, 181 U.S. 589, 21 S. Ct. 730, 45 L. Ed. 1015 (1901).

The measure of punishment is the test of the nature of a crime, whether felony or misdemeanor. State v. Hyman, 164 N.C. 411, 79 S.E. 284 (1913); Jones v. Brinkley, 174 N.C. 23, 93 S.E. 372 (1917).

Offense Need Not Be Specified. - It is not necessary to prescribe that an act is a misdemeanor or felony, as the punishment affixed determines that. State v. Lewis, 142 N.C. 626, 55 S.E. 600 (1906).

Defective Indictment. - Where an indictment did not use the word "feloniously" or state the statute showing a charge was felony, it was fatally defective and the charge was vacated. State v. Blakney, 156 N.C. App. 671, 577 S.E.2d 387, cert. denied, 357 N.C. 252, 582 S.E.2d 611 (2003).

Penitentiary Unknown to Common Law. - The penitentiary, being a modern device, was unknown to the common law; therefore, punishment in the penitentiary could not be imposed by the common law. State v. McNeill, 75 N.C. 15 (1876).

The use of the word "penitentiary" in prescribing the punishment for one convicted under a criminal statute has the same legal significance as the words "State's prison," both meaning the place of punishment in which convicts sentenced to imprisonment and hard labor are confined by the authority of law. State v. Burnett, 184 N.C. 783, 115 S.E. 57 (1922).

Concurrence of General and Local Laws. - This State's general prohibition statutes, prohibiting the manufacture or sale of intoxicating liquors, expressly provided that they would not have the effect of repealing local or special statutes upon the subject, but they would continue in full force and in concurrence with the general law except where otherwise provided by law; and where the local law applicable made the offense a misdemeanor, punishable by imprisonment, in the county jail or penitentiary not exceeding two years, etc., the person convicted thereunder was guilty of a felony, by this section, and the two-year statute of limitations was not a bar to the prosecution. State v. Burnett, 184 N.C. 783, 115 S.E. 57 (1922).

Conspiracy. - A conspiracy to commit a felony is a felony and a conspiracy to commit a misdemeanor is a misdemeanor. State v. Abernethy, 220 N.C. 226, 17 S.E.2d 25 (1941), holding that a conspiracy to interfere with election officials in the discharge of their duties was a misdemeanor.

An assault with intent to commit rape is a felony. State v. Gay, 224 N.C. 141, 29 S.E.2d 458 (1944).

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).

Suicide. - At common law suicide was a felony, and attempted suicide was a misdemeanor, punishable by fine and imprisonment. State v. Willis, 255 N.C. 473, 121 S.E.2d 854 (1961).

An attempt to commit suicide is an indictable misdemeanor in North Carolina. State v. Willis, 255 N.C. 473, 121 S.E.2d 854 (1961).

Attempt to commit a felony is a misdemeanor, absent statutory provisions to the contrary. State v. Hageman, 307 N.C. 1, 296 S.E.2d 433 (1982).

Fair Sentencing Act. - Although the principal provisions of the Fair Sentencing Act are codified in Chapter 15A, Article 81A, the act resulted in revisions to other portions of the general statutes. See e.g., Chapter 14, Articles 1, 2, 2A, 33; Chapter 15A, Articles 58, 81A, 82, 83, 85, 85A, 89, 91; Chapter 148, Article 2, and Chapter 162, Article 4. State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983).

For discussion of the historical background, policies, purposes, and implementation of the new Fair Sentencing Act, see State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983).

Applied in State v. Johnson, 227 N.C. 587, 42 S.E.2d 685 (1947); State v. Miller, 237 N.C. 427, 75 S.E.2d 242 (1953); State v. Roberts, 276 N.C. 98, 171 S.E.2d 440 (1970).

Cited in State v. Gregory, 223 N.C. 415, 27 S.E.2d 140 (1943); State v. Mounce, 226 N.C. 159, 36 S.E.2d 918 (1946); State v. Massey, 273 N.C. 721, 161 S.E.2d 103 (1968); Lofton v. Lofton, 26 N.C. App. 203, 215 S.E.2d 861 (1975); State v. Glidden, 76 N.C. App. 653, 334 S.E.2d 101 (1985); State v. Reaves, 142 N.C. App. 629, 544 S.E.2d 253 (2001); State v. Riley, 253 N.C. App. 819, 802 S.E.2d 494 (2017).


§ 14-1.1: Repealed by Session Laws 1993, c. 538, s. 2.

Cross References. - As to structured sentencing of persons convicted of crimes, see G.S. 15A-1340.10 et seq.


§ 14-2: Repealed by Session Laws 1993, c. 538, s. 2.1.

Cross References. - As to structured sentencing of persons convicted of crimes, see G.S. 15A-1340.10 et seq.


§ 14-2.1: Repealed by Session Laws 1993, c. 538, s. 3.

Cross References. - As to structured sentencing of persons convicted of crimes, see G.S. 15A-1340.10 et seq.


§ 14-2.2: Repealed by Session Laws 2003-0378, s. 1, effective August 1, 2003.

Cross References. - As to persons convicted who used, displayed, or threatened to use or display a firearm during the commission of a felony, see G.S. 15A-1340.16A.


§ 14-2.3. Forfeiture of gain acquired through criminal activity.

  1. Except as is otherwise provided in Article 3 of Chapter 31A, in the case of any violation of Article 13A of Chapter 14, or a general statute constituting a felony other than a nonwillful homicide, any money or other property or interest in property acquired thereby shall be forfeited to the State of North Carolina, including any profits, gain, remuneration, or compensation directly or indirectly collected by or accruing to any offender.
  2. An action to recover such property shall be brought by either a District Attorney or the Attorney General pursuant to G.S. 1-532. The action must be brought within three years from the date of the conviction for the offense.
  3. Nothing in this section shall be construed to require forfeiture of any money or property recovered by law-enforcement officers pursuant to the investigation of an offense when the money or property is readily identifiable by the owner or guardian of the property or is traceable to him.

History

(1981, c. 840, s. 1; 2008-214, s. 1.)

Effect of Amendments. - Session Laws 2008-214, s. 1, effective December 1, 2008, and applicable to offenses committed on or after that date, substituted "criminal activity" for "felonies" in the section heading; in subsection (a), inserted "Article 13A of Chapter 14, or" and substituted "offender" for "felon" at the end; substituted "offense" for "felony" at the end of subsection (b); and substituted "an offense" for "a felony" in subsection (c).

CASE NOTES

This section describes a category of contraband which is not per se illegal to possess at all times but is only derivatively subject to seizure due to its connection with illegal acts. State v. Triplett, 70 N.C. App. 341, 318 S.E.2d 913, cert. denied, 312 N.C. 497, 322 S.E.2d 564 (1984).

For a comparison of contraband per se and derivative contraband, see State v. Triplett, 70 N.C. App. 341, 318 S.E.2d 913, cert. denied, 312 N.C. 497, 322 S.E.2d 564 (1984).

This section authorizes the forfeiture of property characterized not by its use in a particular crime but as the acquired result of a crime. State v. Triplett, 70 N.C. App. 341, 318 S.E.2d 913, cert. denied, 312 N.C. 497, 322 S.E.2d 564 (1984).

Cited in Animal Protection Soc'y of Durham, Inc. v. State, 95 N.C. App. 258, 382 S.E.2d 801 (1989).


§ 14-2.4. Punishment for conspiracy to commit a felony.

  1. Unless a different classification is expressly stated, a person who is convicted of a conspiracy to commit a felony is guilty of a felony that is one class lower than the felony he or she conspired to commit, except that a conspiracy to commit a Class A or Class B1 felony is a Class B2 felony, a conspiracy to commit a Class B2 felony is a Class C felony, and a conspiracy to commit a Class I felony is a Class 1 misdemeanor.
  2. Unless a different classification is expressly stated, a person who is convicted of a conspiracy to commit a misdemeanor is guilty of a misdemeanor that is one class lower than the misdemeanor he or she conspired to commit, except that a conspiracy to commit a Class 3 misdemeanor is a Class 3 misdemeanor.

History

(1983, c. 451, s. 1; 1993, c. 538, s. 5; 1994, Ex. Sess., c. 22, s. 12; c. 24, s. 14(b).)

CASE NOTES

A criminal conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means. State v. Massey, 76 N.C. App. 660, 334 S.E.2d 71, supersedeas allowed, 314 N.C. 672, 335 S.E.2d 325 (1985).

In order for a defendant to be found guilty of a conspiracy, it must be established by competent evidence that the defendant entered into an unlawful confederation for the criminal purposes alleged. State v. Massey, 76 N.C. App. 660, 334 S.E.2d 71, supersedeas allowed, 314 N.C. 672, 335 S.E.2d 325 (1985).

Proof of Conspiracy. - While a conspiracy may be established from circumstantial evidence, there must be evidence to prove the agreement directly or such a state of facts that an agreement may be legally inferred. State v. Massey, 76 N.C. App. 660, 334 S.E.2d 71, supersedeas allowed, 314 N.C. 672, 335 S.E.2d 325 (1985).

If a conspiracy is to be proved by inferences drawn from the evidence, such evidence must point unerringly to the existence of a conspiracy. State v. Massey, 76 N.C. App. 660, 334 S.E.2d 71, supersedeas allowed, 314 N.C. 672, 335 S.E.2d 325 (1985).

For case where proof of conspiracy to commit murder was held sufficient, see 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 State v. Carey, 288 N.C. 254, 218 S.E.2d 387 (1975).

Trial court did not err in denying defendants' motions to dismiss conspiracy charge because substantial evidence existed, in that: (1) a co-defendant testified that defendants had agreed to distribute marijuana, were engaged in distributing marijuana, and stored marijuana in the house where defendants lived and sold marijuana from an apartment; (2) defendants each had access to the marijuana found in a garage; (3) one defendant was at the apartment when a law enforcement agent made a controlled delivery of a package containing marijuana; (4) marijuana, scales, packaging materials, and weapons were found at both the apartment and in the bedrooms and public areas of the house. State v. Harrington, 171 N.C. App. 17, 614 S.E.2d 337, cert. denied, sub nom., State v. Rattis, 360 N.C. 70, 623 S.E.2d 36 (2005).

Proof of conspiracy held insufficient where the State's evidence indicated that the defendant wished her ex-husband dead, that they disagreed about custody, that she was present when her brother and husband discussed a plan for "taking care" of the victim, that someone made a long-distance phone call to the victim the night before his murder, that defendant borrowed ten dollars to take the kids camping on the day of the murder, that defendant participated in efforts to hide the victim's body and personal belongings, and initially attempted to deceive law enforcement officers regarding his disappearance. State v. Merrill, 138 N.C. App. 215, 530 S.E.2d 608 (2000).

Court reversed defendant's convictions of conspiracy to commit first-degree murder and conspiracy to commit shooting into occupied property because the cell phone call between defendant and another supported inferences about a possible agreement to resolve a money problem, but there was no mention of shooting, killing, or violence of any kind, and the evidence did not point unerringly toward conspiracies to commit murder or shoot into occupied property and was insufficient to support those charges. State v. Benardello, 164 N.C. App. 708, 596 S.E.2d 358 (2004).

The presumptive term for conspiracy is three years. State v. Arnold, 329 N.C. 128, 404 S.E.2d 822 (1991).

Conspiracy and accessory before the fact are separate crimes which do not merge, because accessory before the fact requires actual commission of the contemplated felony, while conspiracy does not, and conspiracy requires an agreement, while an accessory need not agree to anything. State v. Fie, 80 N.C. App. 577, 343 S.E.2d 248 (1986), rev'd on other grounds, 320 N.C. 626, 359 S.E.2d 774 (1987).

Acting in Concert. - In order to convict a defendant under a theory of acting in concert, it is not necessary that the defendant personally commit all the acts required to constitute the crime charged. When two or more persons act together with the common purpose to commit robbery, each is held responsible for the acts of the other done in the commission of the robbery. State v. Black, 328 N.C. 191, 400 S.E.2d 398 (1991).

Indictment Facially Defective. - Trial court was deprived of jurisdiction to adjudicate the charge of conspiracy because State's failure to allege an essential element of the crime of conspiracy, the agreement to commit an unlawful act, rendered the indictment against defendant facially defective; merely charging in general terms a breach of G.S. 14-2.4 and referring to it in the indictment is not sufficient to cure the failure to charge the essentials of the offense" in a plain, intelligible, and explicit manner. State v. Billinger, 213 N.C. App. 249, 714 S.E.2d 201 (2011).

Evidence held to show a single conspiracy to feloniously break or enter various Durham retail stores within a four month period, and not 10 separate conspiracies to break or enter on 10 separate occasions. State v. Medlin, 86 N.C. App. 114, 357 S.E.2d 174 (1987).

Convictions of both felonious conspiracy to commit felonious breaking and entering and felonious conspiracy to commit felonious larceny could not both be allowed to stand where there was evidence of only one agreement. State v. Hicks, 86 N.C. App. 36, 356 S.E.2d 595 (1987).

Evidence supported the existence of multiple separate conspiracies because gang members first abducted and robbed a woman, then the members decided to kill the woman for her car; then, later that night the members decided to abduct, rob, and kill two other women for their car. 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).

Sufficient evidence existed to allow a jury to decide whether the defendant engaged in two conspiracies instead of one where the State presented evidence about the abandonment of the first attack, the time interval between the assaults, and the different motivations for the crimes. State v. Choppy, 141 N.C. App. 32, 539 S.E.2d 44 (2000).

Conviction for Conspiracy and Substantive Offense. - It is a fundamental principle of substantive criminal law that a defendant may properly be convicted of, and punished for, both conspiracy and the substantive offense which the defendant conspired to commit. Therefore, defendant was properly convicted of, and punished for, both conspiracy to commit murder and first degree murder. State v. Morston, 336 N.C. 381, 445 S.E.2d 1 (1994).

Conspiracy to Commit Murder. - Defendant took advantage of position of trust or confidence where victim of conspiracy to commit murder was defendant's husband. State v. Arnold, 329 N.C. 128, 404 S.E.2d 822 (1991).

Defendant was properly charged and convicted of conspiracy to commit first-degree murder under the felony murder rule because the instruction that was given requiring the jury to find an agreement and specific intent to kill eliminated the possibility that an unintentional felony murder formed the basis for the specific intent underlying the conspiracy of which the jury convicted defendant. State v. Curry, 171 N.C. App. 568, 615 S.E.2d 327 (2005).

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).

Conviction for conspiracy to commit first degree murder was supported by sufficient evidence because, inter alia, defendant admitted to (1) knowing what was going to happen and to having remorse about thinking up such a thing and not stopping it, (2) conceiving of and agreeing to the plan to kill defendant's mother, and (3) assisting the shooter in making it look like a break in and cleaning up the scene. State v. Crowe, 188 N.C. App. 765, 656 S.E.2d 688 (2008), review granted as to additional issues, 362 N.C. 359, 664 S.E.2d 308 (2008).

Proof Showed Conspiracy to Commit Larceny Rather Than Embezzlement. - Lawful possession or control element of the crime of embezzlement was not satisfied when defendant's wife, an administrative employee, took a corporate signature stamp without permission and wrote unauthorized corporate checks, thereby misappropriating funds from her employer; such evidence supported a finding of larceny rather than embezzlement, and thus, conspiracy to commit larceny rather than embezzlement. State v. Weaver, 359 N.C. 246, 607 S.E.2d 599 (2005).

Dismissal of Charges as to One Coconspirator. - Dismissal of charges pursuant to a plea agreement does not constitute an acquittal at law; therefore, in the absence of inconsistent verdicts for the same conspiracy (i.e., where all but one of the accused in the conspiracy has received an acquittal), the conviction of the sole remaining conspirator would not be set aside. 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).

Jury Instructions. - Finding of "an agreement to kill" is equivalent to a finding of 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).

Trial court committed plain error in failing to instruct the jury on conspiracy to commit common law robbery as the jury was properly instructed on robbery with a dangerous weapon and common law robbery, apparently based on the conflicting evidence regarding whether the gun used was real or fake; the same conflicting evidence directly pertained to defendant's charge of conspiracy to commit common law robbery as there was conflicting evidence as to whether the agreement was that the person who committed the robbery would use a real or a fake gun. State v. Carter, 177 N.C. App. 539, 629 S.E.2d 332 (2006).

Since the evidence showed that defendant and his coconspirator agreed to take as many batteries as they could and the evidence showed that the value of those taken was well in excess of $1,000, the trial court did not err in denying defendant's request for a jury instruction on the lesser-included offense of conspiracy to commit misdemeanor, rather than felony, larceny. State v. Fish, 229 N.C. App. 584, 748 S.E.2d 65 (2013), review denied 367 N.C. 292, 753 S.E.2d 784, 2014 N.C. LEXIS 85 (2014).

Sufficient Evidence to Go to Jury on Conspiracy to Commit Robbery with Dangerous Weapon. - Defendant's motion to dismiss a conspiracy to commit robbery with a dangerous weapon charge was properly denied as there was conflicting evidence as to whether a gun given to a person who committed a robbery (the actor) was real or not and there was sufficient evidence that the gun was an operable weapon where: (1) defendant and two other men told the actor to rob a store in exchange for drugs, which she agreed to do, (2) the men provided the actor with a gun and she committed the robbery, (3) the actor spoke primarily with defendant regarding the robbery, (4) the actor stated that one of the men told her that the gun was fake, but that she was uncertain whether it was fake, and (5) the actor stated that defendant and the others had a real gun and a fake gun and that she believed she had been given the fake one. State v. Carter, 177 N.C. App. 539, 629 S.E.2d 332 (2006).

Applied in In re DRH, 194 N.C. App. 166, 668 S.E.2d 919 (2008); State v. Warren, 244 N.C. App. 134, 780 S.E.2d 835 (2015), review denied, 368 N.C. 688, 781 S.E.2d 483, 2016 N.C. LEXIS 51 (2016).

Cited in State v. Clark, 324 N.C. 146, 377 S.E.2d 54 (1989); State v. Manning, 327 N.C. 608, 398 S.E.2d 319 (1990); State v. Estes, 186 N.C. App. 364, 651 S.E.2d 598 (2007), review denied, appeal dismissed, 362 N.C. 365, 661 S.E.2d 883 (2008); State v. Williams, 209 N.C. App. 441, 705 S.E.2d 409 (2011).


§ 14-2.5. Punishment for attempt to commit a felony or misdemeanor.

Unless a different classification is expressly stated, an attempt to commit a misdemeanor or a felony is punishable under the next lower classification as the offense which the offender attempted to commit. An attempt to commit a Class A or Class B1 felony is a Class B2 felony, an attempt to commit a Class B2 felony is a Class C felony, an attempt to commit a Class I felony is a Class 1 misdemeanor, and an attempt to commit a Class 3 misdemeanor is a Class 3 misdemeanor.

History

(1993, c. 538, s. 6; 1994, Ex. Sess., c. 22, s. 11; c. 24, s. 14(b).)

CASE NOTES

Sufficiency of Evidence to Deny Motion to Dismiss Attempted Felony Larceny Charge. - Evidence was sufficient to support defendant's attempted felony larceny charge because the evidence presented by the prosecution at trial tended to show that defendant cut the connections of an air-conditioning (A/C) unit, loaded the A/C unit into a trailer behind defendant's vehicle, and drove away from the mobile home of the A/C unit's owner with the A/C unit in tow. When defendant was stopped, defendant was far enough from the mobile home that it could not be seen. State v. Primus, 227 N.C. App. 428, 742 S.E.2d 310 (2013).

Sufficiency of Evidence to Deny Motion to Dismiss Attempted Murder Charge. - 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).

Sentence Aggravation. - Trial court erred in sentencing defendant as a level IV offender on his conviction of second-degree murder, as the trial court erred in finding that a prior New York conviction of N.Y. Penal Law § 120.05 was substantially similar to North Carolina's offense of simple assault set forth in G.S. 14-33(a), as the North Carolina offense required serious injury to the victim and the New York offense did not; furthermore, under G.S. 14-2.5, an attempt to commit a misdemeanor or a felony is punishable under the next lower classification as the offense the offender attempted to commit, and defendant's prior New York conviction for attempted second-degree assault should have been treated as a class 3 misdemeanor, which would have not had any point value for prior record purposes. State v. Hanton, 175 N.C. App. 250, 623 S.E.2d 600 (2006).

By also making attempted computer solicitation a felony under amended G.S. 14-202.3, the legislature merely increased the severity of the crime; it did not create the new crime of attempt. State v. Ellis, 188 N.C. App. 820, 657 S.E.2d 51 (2008), review denied, 362 N.C. 365, 664 S.E.2d 313 (2008).

Trial court erred in sentencing defendant two classes higher than what was statutorily allowed for attempted second-degree kidnapping. State v. Jacobs, 239 N.C. App. 425, 768 S.E.2d 883 (2015).

Attempted Bribery of Juror is Class G Felony. - Because North Carolina's statutes do not provide a specific classification for attempted bribery of a juror, an attempt to commit the felony of bribery of a juror is punishable under the next lower classification as the offense which the offender attempted to commit pursuant to G.S. 14-2.5. Thus, attempted bribery of a juror should be classified as a Class G felony pursuant to G.S. 14-220 (classifying bribery of a juror as a Class F felony). State v. Ross, 221 N.C. App. 185, 727 S.E.2d 370 (2012).

Applied in State v. Bennett, 132 N.C. App. 187, 510 S.E.2d 698 (1999).

Cited in State v. Clark, 137 N.C. App. 90, 527 S.E.2d 319 (2000); State v. Floyd, 369 N.C. 329, 794 S.E.2d 460 (2016).


§ 14-2.6. Punishment for solicitation to commit a felony or misdemeanor.

  1. Unless a different classification is expressly stated, a person who solicits another person to commit a felony is guilty of a felony that is two classes lower than the felony the person solicited the other person to commit, except that a solicitation to commit a Class A or Class B1 felony is a Class C felony, a solicitation to commit a Class B2 felony is a Class D felony, a solicitation to commit a Class H felony is a Class 1 misdemeanor, and a solicitation to commit a Class I felony is a Class 2 misdemeanor.
  2. Unless a different classification is expressly stated, a person who solicits another person to commit a misdemeanor is guilty of a Class 3 misdemeanor.

History

(1993, c. 538, s. 6.1; 1994, Ex. Sess., c. 22, s. 13; c. 24, s. 14(b).)

CASE NOTES

Solicitation conviction affirmed, no plain error. - It was not plain error for the trial court to admit testimony about defendant's alleged threats to kill and engage in a swap of drugs for stolen goods with a detective because given the strength of the other evidence that defendant solicited the shooting, the admission was not fundamental error, and the admission of other testimony from the detective was offered to provide background to the meeting between the detective, defendant, and defendant's friend and was not so prejudicial that it resulted in a miscarriage of justice. State v. Benardello, 164 N.C. App. 708, 596 S.E.2d 358 (2004).

Cited in R.J. Reynolds Tobacco Co. v. S K Everhart, Inc., - F. Supp. 2d - (M.D.N.C. July 31, 2003); State v. Smith, - N.C. App. - , 837 S.E.2d 166 (2019).

§ 14-3. Punishment of misdemeanors, infamous offenses, offenses committed in secrecy and malice, or with deceit and intent to defraud, or with ethnic animosity.

  1. Except as provided in subsections (b) and (c), every person who shall be convicted of any misdemeanor for which no specific classification and no specific punishment is prescribed by statute shall be punishable as a Class 1 misdemeanor. Any misdemeanor that has a specific punishment, but is not assigned a classification by the General Assembly pursuant to law is classified as follows, based on the maximum punishment allowed by law for the offense as it existed on the effective date of Article 81B of Chapter 15A of the General Statutes:
    1. If that maximum punishment is more than six months imprisonment, it is a Class 1 misdemeanor;
    2. If that maximum punishment is more than 30 days but not more than six months imprisonment, it is a Class 2 misdemeanor; and
    3. If that maximum punishment is 30 days or less imprisonment or only a fine, it is a Class 3 misdemeanor.
  2. If a misdemeanor offense as to which no specific punishment is prescribed be infamous, done in secrecy and malice, or with deceit and intent to defraud, the offender shall, except where the offense is a conspiracy to commit a misdemeanor, be guilty of a Class H felony.
  3. If any Class 2 or Class 3 misdemeanor is committed because of the victim's race, color, religion, nationality, or country of origin, the offender shall be guilty of a Class 1 misdemeanor. If any Class A1 or Class 1 misdemeanor offense is committed because of the victim's race, color, religion, nationality, or country of origin, the offender shall be guilty of a Class H felony.

Misdemeanors that have punishments for one or more counties or cities pursuant to a local act of the General Assembly that are different from the generally applicable punishment are classified pursuant to this subsection if not otherwise specifically classified.

History

(R.C., c. 34, s. 120; Code, s. 1097; Rev., s. 3293; C.S., s. 4173; 1927, c. 1; 1967, c. 1251, s. 3; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, ss. 2, 47, 48; 1981, c. 63, s. 1; c. 179, s. 14; 1991, c. 702, s. 2; 1993, c. 538, s. 7; 1994, Ex. Sess., c. 14, s. 2; c. 24, s. 14(b); 1995 (Reg. Sess., 1996), c. 742, s. 6; 2008-197, s. 4.1.)

Cross References. - As to uttering worthless checks, see G.S. 14-106 and 14-107.

As to statute of limitations for misdemeanors, see G.S. 15-1.

Effect of Amendments. - Session Laws 2008-197, s. 4.1, effective December 1, 2008, and applicable to offenses committed on or after that date, substituted "Class H" for "Class I" in subsection (c).

Legal Periodicals. - As to lack of clear test as to what constitutes infamous offense, see 28 N.C.L. Rev. 103 (1950).

For case law survey as to excessive punishment, see 45 N.C.L. Rev. 910 (1967).

For survey of 1982 law relating to criminal law, see 61 N.C.L. Rev. 1060 (1983).

For note, "North Carolina County Jail Inmates' Right of Access to Courts," see 66 N.C.L. Rev. 583 (1988).

Survey of Developments in North Carolina Law and the Fourth Circuit, 1999: Clarifying North Carolina's Ethnic Intimidation Statute and Penalty Enhancement for Bias Crimes, 78 N.C.L. Rev. 2003 (2000).

CASE NOTES

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.

.

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).

§ 14-3.1. Infraction defined; sanctions.

  1. An infraction is a noncriminal violation of law not punishable by imprisonment. Unless otherwise provided by law, the sanction for a person found responsible for an infraction is a penalty of not more than one hundred dollars ($100.00). The proceeds of penalties for infractions are payable to the county in which the infraction occurred for the use of the public schools.
  2. The procedure for disposition of infractions is as provided in Article 66 of Chapter 15A of the General Statutes.

History

(1985, c. 764, s. 1; 1985 (Reg. Sess., 1986), c. 852, s. 17.)

CASE NOTES

Applied in Glenn-Robinson v. Acker, 140 N.C. App. 606, 538 S.E.2d 601 (2000); N.C. Sch. Bds. Ass'n v. Moore, 160 N.C. App. 253, 585 S.E.2d 418 (2003); McCormick v. Hanson Aggregates Southeast, Inc., 164 N.C. App. 459, 596 S.E.2d 431 (2004); Richmond Cnty. Bd. of Educ. v. Cowell, 243 N.C. App. 116, 776 S.E.2d 244 (2015).

Cited in Cauble v. City of Asheville, 314 N.C. 598, 336 S.E.2d 59 (1985); State v. Hamrick, 110 N.C. App. 60, 428 S.E.2d 830 (1993); State v. Simmons, 205 N.C. App. 509, 698 S.E.2d 95 (2010).


§ 14-4. (See editor's note) Violation of local ordinances misdemeanor.

  1. Except as provided in subsection (b), if any person shall violate an ordinance of a county, city, town, or metropolitan sewerage district created under Article 5 of Chapter 162A, he shall be guilty of a Class 3 misdemeanor and shall be fined not more than five hundred dollars ($500.00). No fine shall exceed fifty dollars ($50.00) unless the ordinance expressly states that the maximum fine is greater than fifty dollars ($50.00).
  2. If any person shall violate an ordinance of a county, city, or town regulating the operation or parking of vehicles, he shall be responsible for an infraction and shall be required to pay a penalty of not more than fifty dollars ($50.00).

History

(1871-2, c. 195, s. 2; Code, s. 3820; Rev., s. 3702; C.S., s. 4174; 1969, c. 36, s. 2; 1985, c. 764, s. 2; 1985 (Reg. Sess., 1986), c. 852, s. 17; 1991, c. 415, s. 1; c. 446, s. 1; 1993, c. 538, s. 8; c. 539, s. 9; 1994, Ex. Sess., c. 24, ss. 14(b), 14(c); 1995, c. 509, s. 133.1.)

Local Modification. - Jacksonville: 1979, c. 511; Mecklenburg: 1983, c. 118; Onslow: 1979, c. 511, s. 2; 1991, c. 245; city of Greensboro: 1987, c. 772; town of North Topsail Beach: 1979, c. 511, s. 2; 1991, c. 245.

Editor's Note. - Session Laws 2018-69, s. 1, as amended by Session Laws 2019-198, s. 3, provides: "All State agencies, boards, and commissions that have the power to define conduct as a crime in the North Carolina Administrative Code shall create a list of all crimes defined by the agency, board, or commission that are in effect or pending implementation. Each agency, board, or commission shall submit the list to the Joint Legislative Administrative Procedure Oversight Committee no later than November 1, 2019."

Session Laws 2018-69, s. 3, as amended by Session Laws 2019-198, s. 4, provides: "Every county with a population of 20,000 or more according to the last federal decennial census, city or town with a population of 1,000 or more according to the last federal decennial census, or metropolitan sewerage district that has enacted an ordinance punishable pursuant to G.S. 14-4(a) shall create a list of applicable ordinances with a description of the conduct subject to criminal punishment in each ordinance. Each county, city, town, or metropolitan sewerage district shall submit the list to the Joint Legislative Administrative Procedure Oversight Committee November 1, 2019."

Session Laws 2019-198, s. 5, provides: "No ordinance adopted on or after January 1, 2020, and before January 1, 2022, by a county, city, or town that was required to report pursuant to Section 3 of S.L. 2018-69, as amended by Section 4 of this act, shall be subject to the criminal penalty provided by G.S. 14-4 unless that county, city, or town submitted the required report on or before November 1, 2019. Ordinances regulated by this section may still be subject to civil penalties as authorized by G.S. 153A-123 or G.S. 160A-175."

Legal Periodicals. - For a survey of 1996 developments in constitutional law, see 75 N.C.L. Rev. 2252 (1997).

CASE NOTES

In General. - While the town or city government has no right to make criminal law, the legislature has made the violation of ordinances a criminal offense. Board of Educ. v. Town of Henderson, 126 N.C. 689, 36 S.E. 158 (1900); State v. Higgs, 126 N.C. 1014, 35 S.E. 473 (1900), overruled on other grounds, Small v. Councilmen of Edenton, 146 N.C. 527, 60 S.E. 413 (1908); State v. Barrett, 243 N.C. 686, 91 S.E.2d 917 (1956).

Section makes violation of a municipal ordinance a criminal offense. Walker v. City of Charlotte, 262 N.C. 697, 138 S.E.2d 501 (1964).

The violation of a valid municipal ordinance is a misdemeanor. Frosty Ice Cream, Inc. v. Hord, 263 N.C. 43, 138 S.E.2d 816 (1964).

The legislature in enacting this section made criminal what would otherwise be civil penalties for violations of ordinances. Cauble v. City of Asheville, 301 N.C. 340, 271 S.E.2d 258 (1980).

Prior to Section Violation Not Punishable. - Prior to the passage of this section there was no way provided for the enforcement of obedience to town ordinances; a violation of such ordinances was not a misdemeanor. State v. Parker, 75 N.C. 249 (1876); School Dirs. v. City of Asheville, 137 N.C. 503, 50 S.E. 279 (1905).

Jurisdiction. - The superior court has no original jurisdiction to try indictments for violation of town ordinances. State v. White, 76 N.C. 15 (1877); State v. Threadgill, 76 N.C. 17 (1877).

Costs of Prosecutions. - The criminal offenses created by the violation of town ordinances under this section are State prosecutions, in the name of the State, or for violation of the criminal law of the State, and at the expense of the State (State v. Higgs, 126 N.C. 1014, 35 S.E. 473 (1900)), overruled on other grounds, Small v. Councilmen of Edenton, 146 N.C. 527, 60 S.E. 413 (1908), and the city cannot be charged with the costs of such prosecutions. Board of Educ. v. Town of Henderson, 126 N.C. 689, 36 S.E. 158 (1900).

Ordinance Must Conform to State Law. - It is uniformly held that a town ordinance in violation of a valid State statute appertaining to the question is void. Shaw v. Kennedy, 4 N.C. 591 (1817); State v. Austin, 114 N.C. 855, 19 S.E. 919 (1894); State v. Beacham, 125 N.C. 652, 34 S.E. 447 (1899); State v. Prevo, 178 N.C. 740, 101 S.E. 370 (1919).

Violation of an Invalid Ordinance Is No Offense. - The violation of a valid ordinance is, under the provision of this section, a misdemeanor, but it is not a criminal offense to disregard one enacted without authority. State v. Hunter, 106 N.C. 796, 11 S.E. 366 (1890), overruled on other grounds, State v. Mobley, 240 N.C. 476, 83 S.E.2d 100 (1954); State v. Webber, 107 N.C. 962, 12 S.E. 598 (1890).

Acting contrary to the provisions of a municipal ordinance is made a misdemeanor by this section. Notwithstanding the all-inclusive language of the statute, guilt must rest on the violation of a valid ordinance. If the ordinance is not valid, there can be no guilt. State v. McGraw, 249 N.C. 205, 105 S.E.2d 659 (1958).

Same - Burden on State. - Where the State failed to show that the original act of incorporation authorized the enactment of an ordinance, it failed to make out the case, for the legislature never intended to make the violation of a void ordinance an indictable misdemeanor. State v. Threadgill, 76 N.C. 17 (1877).

Upon the prosecution of a criminal action for the violation of a city ordinance under this section the State must show that the ordinance in question was a valid one, as well as the violation as charged in the warrant. State v. Hunter, 106 N.C. 796, 11 S.E. 366 (1890), overruled on other grounds, State v. Mobley, 240 N.C. 476, 83 S.E.2d 100 (1954); State v. Snipes, 161 N.C. 242, 76 S.E. 243 (1912); State v. Prevo, 178 N.C. 740, 101 S.E. 370 (1919).

Failure to Prescribe Penalty. - The violation of a valid town ordinance is made a misdemeanor by this section, and the defense that the ordinance did not prescribe a penalty therefor is untenable. State v. Razook, 179 N.C. 708, 103 S.E. 67 (1920).

Where Fine Is Provided It Must Be Certain. - An ordinance which imposes a fine is invalid if it is not certain as to the amount of the fine. State v. Irvin, 126 N.C. 989, 35 S.E. 430 (1900).

Provision for Arrest Void. - When a municipal ordinance imposed a penalty for its violation, and provided that the offender should be "arrested and fined $25.00 upon conviction thereof," it was held that so much of the ordinance as provided for the arrest was void, but the other provisions were valid. State v. Earhardt, 107 N.C. 789, 12 S.E. 426 (1890).

Conviction for Fighting Held No Bar to Prosecution for Assault. - A conviction of violating a city ordinance punishing the disturbance of the good order and quiet of the town by fighting was not a bar to a prosecution by the State for an assault. State v. Taylor, 133 N.C. 755, 46 S.E. 5 (1903).

Personal Notice to Offender Sufficient. - The requirement of the charter of a city or town that its ordinances shall be printed and published, was to bring such ordinances to the attention of the public, and where personal notice was given to an offender thereunder who afterwards committed the offense prohibited, the requirement of publication, etc., was not necessary for a conviction. State v. Razook, 179 N.C. 708, 103 S.E. 67 (1920).

Defects in Warrant May Be Waived. - Ordinarily defects in the form of a warrant for violating a city ordinance may be waived, and usually it is so considered when a plea of not guilty is entered by the defendants. State v. Prevo, 178 N.C. 740, 101 S.E. 370 (1919).

Form of Indictment. - It is not necessary, in indictments for violations of city ordinances, to set out the ordinance in the warrant. It is sufficient to refer to it by such indicia, as point it out with sufficient certainty. State v. Merritt, 83 N.C. 677 (1881); State v. Cainan, 94 N.C. 880 (1886).

In an indictment under an ordinance for loud and boisterous swearing, it is not necessary to set out the words used by the defendant. State v. Cainan, 94 N.C. 880 (1886).

Fines Used to Maintain Public Schools. - All the fines collected upon prosecutions for violations of the criminal laws of the State, whether for violations of ordinances made criminal by this section, or by other criminal statutes belong to the common school fund of the county; they are thus appropriated by the North Carolina Constitution, and cannot be diverted or withheld from this fund without violating the State Constitution. Cauble v. City of Asheville, 301 N.C. 340, 271 S.E.2d 258 (1980).

Same - Parking Violations. - Moneys voluntarily paid by motorists to a city upon citations for violations of a city overtime parking ordinance constitute a penalty or fine collected for breach of a State penal law and should be used exclusively for maintaining free public schools in the county pursuant to N.C. Const., Art. IX, § 7, since violation of a city ordinance is also a violation of this section, which makes the violation of a local ordinance a misdemeanor. Cauble v. City of Asheville, 301 N.C. 340, 271 S.E.2d 258 (1980).

Applied in State v. Walker, 265 N.C. 482, 144 S.E.2d 419 (1965); Brown v. Brannon, 399 F. Supp. 133 (M.D.N.C. 1975); McCormick v. Hanson Aggregates Southeast, Inc., 164 N.C. App. 459, 596 S.E.2d 431 (2004); Shavitz v. City of High Point, 177 N.C. App. 465, 630 S.E.2d 4 (2006), review denied, appeal dismissed, 361 N.C. 430, 648 S.E.2d 845 (2007).

Cited in State v. Wilkes, 233 N.C. 645, 65 S.E.2d 129 (1951); Eastern Carolina Tastee Freez, Inc. v. City of Raleigh, 256 N.C. 208, 123 S.E.2d 632 (1962); State v. Fox, 262 N.C. 193, 136 S.E.2d 761 (1964); Walker v. North Carolina, 262 F. Supp. 102 (W.D.N.C. 1966); United Steelworkers of Am. v. Bagwell, 383 F.2d 492 (4th Cir. 1967); Bell v. Page, 271 N.C. 396, 156 S.E.2d 711 (1967); Walker v. City of Charlotte, 276 N.C. 166, 171 S.E.2d 431 (1970); Clarke v. Kerchner, 11 N.C. App. 454, 181 S.E.2d 787 (1971); State v. Clemmons, 17 N.C. App. 112, 193 S.E.2d 290 (1972); Pharo v. Pearson, 28 N.C. App. 171, 220 S.E.2d 359 (1975); Wheaton v. Hagan, 435 F. Supp. 1134 (M.D.N.C. 1977); Cauble v. City of Asheville, 45 N.C. App. 152, 263 S.E.2d 8 (1980); Cauble v. City of Asheville, 66 N.C. App. 537, 311 S.E.2d 889 (1984); Cauble v. City of Asheville, 314 N.C. 598, 336 S.E.2d 59 (1985); Glenn-Robinson v. Acker, 140 N.C. App. 606, 538 S.E.2d 601 (2000); Shavitz v. City of High Point, 270 F. Supp. 2d 702 (M.D.N.C. 2003).


§ 14-4.1. Legislative review of regulatory crimes.

  1. Any rule adopted or amended pursuant to Article 2A of Chapter 150B of the General Statutes that creates a new criminal offense or otherwise subjects a person to criminal penalties is subject to G.S. 150B-21.3(b1) regardless of whether the rule received written objections from 10 or more persons pursuant to G.S. 150B-21.3(b2).
  2. This section applies to rules adopted on or after January 1, 2020.

History

(2019-198, s. 1.)

Editor's Note. - Session Laws 2019-198, s. 8, made this section, as added by Session Laws 2019-198, s. 1, effective August 14, 2019.

ARTICLE 2. Principals and Accessories.

Sec.

§§ 14-5, 14-5.1: Repealed by Session Laws 1981, c. 686, s. 2.

Cross References. - For present provisions as to punishment of accessories before the fact, see G.S. 14-5.2.


§ 14-5.2. Accessory before fact punishable as principal felon.

All distinctions between accessories before the fact and principals to the commission of a felony are abolished. Every person who heretofore would have been guilty as an accessory before the fact to any felony shall be guilty and punishable as a principal to that felony. However, if a person who heretofore would have been guilty and punishable as an accessory before the fact is convicted of a capital felony, and the jury finds that his conviction was based solely on the uncorroborated testimony of one or more principals, coconspirators, or accessories to the crime, he shall be guilty of a Class B2 felony.

History

(1981, c. 686, s. 1; 1994, Ex. Sess., c. 22, s. 6.)

Legal Periodicals. - For note on presence as a factor in aiding and abetting, see 35 N.C.L. Rev. 284 (1957).

For survey of 1980 criminal law in general, see 59 N.C.L. Rev. 1123 (1981).

For comment clarifying the law of parties in North Carolina by punishing accessories before the fact as principals, see 17 Wake Forest L. Rev. 599 (1981).

For survey of 1981 criminal law, see 60 N.C.L. Rev. 1289 (1982).

CASE NOTES

I. GENERAL CONSIDERATION.

Editor's Note. - Most of the cases below were decided under former G.S. 14-5 and prior statutory provisions.

Legislative Intent. - The North Carolina legislature abolished all distinctions between accessories before the fact and principals in the commission of felonies by enacting this section. State v. Bond, 345 N.C. 1, 478 S.E.2d 163 (1996), reh'g denied, 345 N.C. 355, 479 S.E.2d 210, cert. denied, 521 U.S. 1124, 117 S. Ct. 2521, 138 L. Ed. 2d 1022 (1997).

Underlying Principle. - It is a well-established principle that where two agree to do an unlawful act, each is responsible for the act of the other, provided it be done in pursuance of the original understanding, or in furtherance of the common purpose. State v. Simmons, 51 N.C. 21 (1858).

What Constitutes One a Party to an Offense. - A person is a party to an offense if he either actually commits the offense or does some act which forms a part thereof, or if he assists in the actual commission of the offense or of any act which forms part thereof, or directly or indirectly counsels or procures any person to commit the offense or to do any act forming a part thereof. To constitute one a party to an offense it has been held to be essential that he be concerned in its commission in some affirmative manner, as by actual commission of the crime or by aiding and abetting in its commission and it has been regarded as a general proposition that no one can be properly convicted of a crime to the commission of which he has never expressly or impliedly given his assent. State v. Spears, 268 N.C. 303, 150 S.E.2d 499 (1966).

History of Offense at Common Law. - Accessory before the fact was a common-law offense. State v. Sauls, 29 N.C. App. 457, 224 S.E.2d 702, rev'd on other grounds, 291 N.C. 253, 230 S.E.2d 390 (1976), cert. denied, 431 U.S. 916, 97 S. Ct. 2178, 53 L. Ed. 2d 226 (1977).

At common law an accessory before the fact could only be convicted when tried at the same time with the principal, and after conviction of the principal, or after the principal had been tried, convicted and sentenced. State v. Duncan, 28 N.C. 98 (1845); State v. Jones, 101 N.C. 719, 8 S.E. 147 (1888).

At common law an accessory before the fact could only be convicted when tried at the same time as the principal, or after trial and conviction of the principal. State v. Jones, 101 N.C. 719, 8 S.E. 147 (1888).

In enacting G.S. 14-5, North Carolina recognized accessory before the fact as a substantive felony, making it no longer necessary to first convict the principal in order to convict an accessory. State v. Partlow, 272 N.C. 60, 157 S.E.2d 688 (1967); State v. Philyaw, 291 N.C. 312, 230 S.E.2d 370 (1976), decided under provisions of former G.S. 14-5.

But the rule that an accessory could not be tried and convicted before the principal had no application as between two principals in first and second degrees. State v. Jarrell, 140 N.C. 391, 53 S.E. 137 (1906).

At common law, one who encouraged or aided another in committing a crime, but who was not himself present at the commission of the crime, was classified as an accessory before the fact, a separate offense. State v. Walden, 75 N.C. App. 79, 330 S.E.2d 271 (1985).

An Accessory Is Guilty of Natural or Probable Consequences. - An accessory is guilty of any other crimes committed by the principal which are the natural or probable consequence of the common purpose. State v. Ruffin, 90 N.C. App. 705, 370 S.E.2d 275 (1988).

Accessories before the fact, who do not actually commit the crime, and may not have been present, can be convicted of first-degree murder under a theory of aiding and abetting. State v. Bond, 345 N.C. 1, 478 S.E.2d 163 (1996), reh'g denied, 345 N.C. 355, 479 S.E.2d 210, cert. denied, 521 U.S. 1124, 117 S. Ct. 2521, 138 L. Ed. 2d 1022 (1997).

Cases Under Former G.S. 14-5, 14-5.1, and 14-6 Still Applicable. - The language of this section indicates that the essential elements of the offense have not changed. The legislature merely abolished the difference in guilt and sentencing treatment between the principal to the felony and an accessory in repealing G.S. 14-5, 14-5.1 and 14-6 and replacing them with this section. Therefore, cases decided under the repealed statutes delineating the essential elements of accessory before the fact of felony are applicable to cases brought under the new statute. State v. Woods, 307 N.C. 213, 297 S.E.2d 574 (1982).

Cases decided before the enactment of this section delineating the essential elements of accessory before the fact of felony are applicable to cases brought under this section. State v. Walden, 75 N.C. App. 79, 330 S.E.2d 271 (1985).

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).

Establishing Theory of Acting in Concert. - Under the circumstances of this case, 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).

Acquittal of the named principal on charges of first-degree murder required, as a matter of law, that defendant's plea of guilty to accessory before the fact to second-degree murder be set aside; this rule prevailed whether the defendant, prior to the acquittal of the principal, has been tried and found guilty of a felony on the theory that he was an accessory before the fact, or has pled guilty to being an accessory before the fact to the felony. State v. Suites, 109 N.C. App. 373, 427 S.E.2d 318 (1993).

Fair Sentencing Act. - Although the principal provisions of the Fair Sentencing Act are codified in Chapter 15A, Article 81A, the act resulted in revisions to other portions of the General Statutes. See e.g., Chapter 14, Articles 1, 2, 2A, 33; Chapter 15A, Articles 58, 81A, 82, 83, 85, 85A, 89, 91; Chapter 148, Article 2, and Chapter 162, Article 4. State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983).

For discussion of the historical background, policies, purposes, and implementation of the new Fair Sentencing Act, see State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983).

Applied in State v. Maynard, 65 N.C. App. 612, 309 S.E.2d 581 (1983); State v. Fletcher, 66 N.C. App. 36, 310 S.E.2d 787 (1984).

Cited in State v. Overton, 60 N.C. App. 1, 298 S.E.2d 695 (1982); In re Bass, 77 N.C. App. 110, 334 S.E.2d 779 (1985); State v. Rowe, 81 N.C. App. 469, 344 S.E.2d 574 (1986); State v. Lowery, 318 N.C. 54, 347 S.E.2d 729 (1986); State v. Brown, 320 N.C. 179, 358 S.E.2d 1 (1987); State v. Tucker, 331 N.C. 12, 414 S.E.2d 548 (1992); State v. Holmes, 120 N.C. App. 54, 460 S.E.2d 915 (1995).

II. ELEMENTS OF THE OFFENSE.

Who Is Accessory Before the Fact. - An accessory before the fact is one who was absent from the scene when the crime was committed but who procured, counseled, commanded or encouraged the principal to commit it. State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1970); State v. Wiggins, 16 N.C. App. 527, 192 S.E.2d 680 (1972); 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).

An accessory before the fact is one who furnishes the means to carry on the crime, whose acts bring about the crime through the agency of or in connection with the perpetrators, who is a confederate, who instigates a crime. State v. Sauls, 29 N.C. App. 457, 224 S.E.2d 702, rev'd on other grounds, 291 N.C. 253, 230 S.E.2d 390 (1976), cert. denied, 431 U.S. 916, 97 S. Ct. 2178, 53 L. Ed. 2d 226 (1977).

For a defendant, not actually or constructively present at the scene, to be criminally responsible for the acts of others as an accessory before the fact, it must be shown that he counseled, or procured, or commanded the others to perpetrate the crime. State v. Sauls, 29 N.C. App. 457, 224 S.E.2d 702, rev'd on other grounds, 291 N.C. 253, 230 S.E.2d 390 (1976), cert. denied, 431 U.S. 916, 97 S. Ct. 2178, 53 L. Ed. 2d 226 (1977).

To render one guilty as an accessory before the fact, he must have had the requisite criminal intent; and it has been said that he must have the same intent as the principal. It is well settled, however, that he need not necessarily have intended the particular crime committed by the principal; an accessory is liable for any criminal act which in the ordinary course of things was the natural or probable consequence of the crime that he advised or commanded. State v. Hewitt, 33 N.C. App. 168, 234 S.E.2d 468 (1977).

An accessory before the fact is one who procures, counsels, commands or encourages the principal to commit a crime. 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).

In this State, 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).

Under this section a defendant not actually or constructively present at the scene is guilty and punishable as a principal if it be shown that he counseled or procured or commanded the others to perpetrate the crime. State v. Bradley, 67 N.C. App. 81, 312 S.E.2d 519 (1984).

To convict a defendant on the theory of being an accessory before the fact, the State must also show that the principal committed the crime. State v. Ruffin, 90 N.C. App. 705, 370 S.E.2d 275 (1988).

To convict a defendant on the theory of being an accessory before the fact, the State must also show that the principal committed the crime. State v. Ruffin, 90 N.C. App. 705, 370 S.E.2d 275 (1988).

An accessory before the fact is one who is absent from the scene when the crime was committed but who procured, counselled, commanded or encouraged the principal to commit it. State v. Ruffin, 90 N.C. App. 705, 370 S.E.2d 275 (1988).

In order to convict defendant for murder in the first degree as an accessory before the fact, the State must prove beyond a reasonable doubt that (1) the principal committed murder in the first degree; (2) defendant was not present when the murder occurred; and (3) defendant procured, counseled or commanded murderer to commit the crime. State v. Arnold, 329 N.C. 128, 404 S.E.2d 822 (1991).

The essential elements of accessory before the fact to murder are (i) the defendant must have counseled, procured, commanded, encouraged, or aided the principal in the commission of the murder; (ii) the principal must have committed the murder; and (iii) the defendant must not have been present when the murder was committed. State v. Westbrooks, 345 N.C. 43, 478 S.E.2d 483 (1996).

Solicitation to commit murder is a lesser included offense of murder as an accessory before the fact. State v. Westbrooks, 345 N.C. 43, 478 S.E.2d 483 (1996).

The concept of accessory before the fact has been held to presuppose some arrangement with respect to the commission of the crime in question. State v. Chavis, 24 N.C. App. 148, 210 S.E.2d 555 (1974), appeal dismissed, 287 N.C. 261, 214 S.E.2d 434 (1975), cert. denied, 423 U.S. 1080, 96 S. Ct. 868, 47 L. Ed. 2d 91 (1976).

There May Be Accessories Before the Fact 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 accessory 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).

There may, of course, be accessories before the fact in all kinds of murder with deliberation, or premeditation, or malice aforethought, including murder in the second degree, which involves malice. State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1970).

Intent May Be Inferred. - The intent to aid or the showing of a felonious purpose may be inferred from the defendant's actions and his relation to the perpetrators. There need be no express words communicating the intent to aid or indicating that defendant shared a felonious purpose. State v. Pryor, 59 N.C. App. 1, 295 S.E.2d 610 (1982).

Elements of crime of being accessory after the fact are separate and distinct from those involved in crimes of being principal or accessory before the fact. State v. Cabey, 307 N.C. 496, 299 S.E.2d 194 (1983).

Conspiracy and accessory before the fact are separate crimes which do not merge, because accessory before the fact requires actual commission of the contemplated felony, while conspiracy does not, and conspiracy requires an agreement while an accessory need not agree to anything. State v. Fie, 80 N.C. App. 577, 343 S.E.2d 248 (1986), rev'd on other grounds, 320 N.C. 626, 359 S.E.2d 774 (1987).

Conviction for Conspiracy to Commit Murder Did Not Merge into Conviction for Murder by Acting in Concert. - Defendant's conviction for conspiracy to commit murder did not merge into her conviction for murder by acting in concert as the requirement of an agreement, while necessary to sustain a conviction for conspiracy, was not a necessary element for murder by acting in concert. State v. Kemmerlin, 356 N.C. 446, 573 S.E.2d 870 (2002).

Actual or constructive presence is no longer required to prove a crime under an aiding and abetting theory. State v. Gaines, 345 N.C. 647, 483 S.E.2d 396, cert. denied, 522 U.S. 900, 118 S. Ct. 248, 139 L. Ed. 2d 177 (1997).

What Must Be Proven. - The elements necessary to be proved in order to sustain a conviction for accessory before the fact were: (1) that defendant counseled, procured or commanded the principal to commit the offense; (2) that defendant was not present when the principal committed the offense; and (3) that the principal committed the offense. State v. Hunter, 290 N.C. 556, 227 S.E.2d 535 (1976), cert. denied, 429 U.S. 1093, 97 S. Ct. 1106, 51 L. Ed. 2d 539 (1977); State v. Philyaw, 291 N.C. 312, 230 S.E.2d 370 (1976); State v. Sauls, 291 N.C. 253, 230 S.E.2d 390 (1976), cert. denied, 431 U.S. 916, 97 S. Ct. 2178, 53 L. Ed. 2d 226 (1977); State v. Saults, 294 N.C. 722, 242 S.E.2d 801 (1978); State v. Woods, 307 N.C. 213, 297 S.E.2d 574 (1982).

There were several things that must have concurred in order to justify the conviction of one as an accessory before the fact: (1) That he advised and agreed, or urged the parties or in some way aided them to commit the offense. (2) That he was not present when the offense was committed. (3) That the principal committed the crime. State v. Bass, 255 N.C. 42, 120 S.E.2d 580 (1961); State v. Benton, 275 N.C. 378, 167 S.E.2d 775 (1969); State v. Chavis, 24 N.C. App. 148, 210 S.E.2d 555 (1974), appeal dismissed, 287 N.C. 261, 214 S.E.2d 434 (1975), cert. denied, 423 U.S. 1080, 96 S. Ct. 868, 47 L. Ed. 2d 91 (1976); State v. Branch, 288 N.C. 514, 220 S.E.2d 495 (1975), cert. denied, 433 U.S. 907, 97 S. Ct. 2971, 53 L. Ed. 2d 1091 (1977).

Causation of a crime by an alleged accessory is not "inherent" in the accessory's counsel, procurement, command or aid of the principal perpetrator. State v. Davis, 319 N.C. 620, 356 S.E.2d 340 (1987), disavowing statement to the contrary in State v. Hunter, 290 N.C. 556, 227 S.E.2d 535 (1976).

The elements of accessory before the fact to murder are as follows: (1) Defendant must have counseled, procured, commanded, encouraged, or aided the principal to murder the victim; (2) the principal must have murdered the victim; and (3) defendant must not have been present when the murder was committed. State v. Davis, 319 N.C. 620, 356 S.E.2d 340 (1987).

What Constitutes Counseling, Procuring and Commanding. - At a meeting of a board of commissioners of a town, at which the mayor presided, a report of the cemetery committee was adopted recommending that unless parties, who had taken lots in the town cemetery and had not paid for them, should pay the amount due within 60 days on notice, the bodies buried in such lots should be removed to the free part of such cemetery. In reply to a question of one of the commissioners as to the legal right to remove the bodies, the mayor said: "The way is open, go ahead and remove them." It was held, therefore, that the mayor was individually guilty of counseling, procuring and commanding an act within the meaning of former G.S. 14-5, making accessory before the fact a substantive crime. State v. McLean, 121 N.C. 589, 28 S.E. 140 (1897).

The term "counsel" as used in former G.S. 14-5 describes the offense of a person who, not actually doing the felonious act, by his will contributed to it or procured it to be done. State v. Hewitt, 33 N.C. App. 168, 234 S.E.2d 468 (1977).

The meaning of the word "command," as applied to the case of principal and accessory is, where a person, having control over another, as a master over his servant, orders a thing to be done. State v. Mann, 2 N.C. 4 (1891).

What Must Be Proven - Murder. - 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).

The elements of accessory before the fact to murder are as follows: (1) Defendant must have counseled, procured, commanded, encouraged, or aided the principal to murder the victim; (2) the principal must have murdered the victim; and (3) defendant must not have been present when the murder was committed. State v. Davis, 319 N.C. 620, 356 S.E.2d 340 (1987).

When Defendant Is "Present". - In order to determine whether a defendant is present, the court must determine whether "he is near enough to render assistance if need be and to encourage the actual perpetration of the felony." State v. Glaze, 37 N.C. App. 155, 245 S.E.2d 575 (1978).

Constructive Presence. - The actual distance of a person from the place where a crime is perpetrated is not always material in determining whether the person is constructively present. A person is deemed to be constructively present if he is near enough to render assistance if need be and to encourage the actual perpetration of the felony. State v. Wiggins, 16 N.C. App. 527, 192 S.E.2d 680 (1972).

Evidence tending to show that defendant drove the automobile that carried men to a store, that to the knowledge of defendant the men entered the store, armed, that defendant stayed with the car, that later they were together when police stopped them and that defendant told police where they could find the stolen money, was sufficient to support an inference that defendant was constructively present at the time of the robbery. State v. Torain, 20 N.C. App. 69, 200 S.E.2d 665 (1973), cert. denied, 284 N.C. 622, 202 S.E.2d 278 (1974).

The actual distance of a person from the place where a crime is perpetrated is not always material in determining whether the person is constructively present. A guard who has been posted to give warning or the driver of a "get-away" car may be constructively present at the scene of a crime although stationed a convenient distance away. State v. Pryor, 59 N.C. App. 1, 295 S.E.2d 610 (1982).

Remaining in Vicinity of Offense. - A person may be guilty as an aider and abettor if that person accompanies the actual perpetrator to the vicinity of the offense and, with the knowledge of the actual perpetrator, remains in that vicinity for the purpose of aiding and abetting in the offense and sufficiently close to the scene of the offense to render aid in its commission, if needed, or to provide a means by which the actual perpetrator may get away from the scene upon the completion of the offense. State v. Pryor, 59 N.C. App. 1, 295 S.E.2d 610 (1982).

Larceny conviction was valid where the evidence showed that defendant procured the commission of the larceny, because the distinction that formerly existed between principals and accessories before the fact has been abolished. State v. Cartwright, 81 N.C. App. 144, 343 S.E.2d 557 (1986).

Where the idea of stealing from victim came from defendant who told the principals that he wanted tools, that victim's shop and mobile home were always left unlocked and that the keys were in victim's car and truck, there was sufficient evidence to find the defendant guilty of accessory before the fact to first-degree burglary, accessory to the fact to felonious entering, and accessory before the fact to felonious larceny. State v. Marr, 342 N.C. 607, 467 S.E.2d 236 (1996).

Evidence of Procuring and Participating Sufficient to Deny Motion to Dismiss. - Where defendant took the principals to a dwelling at night, armed them and told them to "rough up" the inhabitants, the trial court did not err in denying defendant's motion to dismiss or to set aside his conviction of first-degree burglary on grounds that he neither procured nor participated in breaking and entering. State v. Ruffin, 90 N.C. App. 705, 370 S.E.2d 275 (1988).

Trafficking. - Defendants may be convicted of the substantive offense of trafficking in cocaine if they were accessories before the fact. State v. Agudelo, 89 N.C. App. 640, 366 S.E.2d 921 (1988), overruled on other grounds, State v. Barnes, 324 N.C. 539, 380 S.E.2d 118 (1989).

III. PRACTICE AND PROCEDURE.

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A. IN GENERAL.

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Jurisdiction Where Accessorial Acts Occur Outside State. - This State may constitutionally assert jurisdiction over a defendant who commits the crime of accessory before the fact to a felony committed within the State when the counselling, procuring or commanding took place without the State. State v. Darroch, 305 N.C. 196, 287 S.E.2d 856, cert. denied, 457 U.S. 1138, 102 S. Ct. 2969, 73 L. Ed. 2d 1356 (1982).

Prior Conviction of Principals Unnecessary. - Under the provisions of former G.S. 14-5 it was not required that the principals be first convicted of the charge of murder to convict the accessories thereto, either before or after the fact, upon sufficient evidence. State v. Jones, 101 N.C. 719, 8 S.E. 147 (1888); State v. Walton, 186 N.C. 485, 119 S.E. 886 (1923).

It is not necessary to first convict principals in order to convict an accessory to a crime. State v. Partlow, 272 N.C. 60, 157 S.E.2d 688 (1967).

But Guilt of Principal Must Be Established Beyond Reasonable Doubt. - In order to warrant the conviction of an accessory, the guilt of the principal must be established to the same degree of certainty as if he himself were on trial, that is, beyond a reasonable doubt. State v. Benton, 275 N.C. 378, 167 S.E.2d 775 (1969).

No Conviction of Accessory Where Principal Is Acquitted. - Former G.S. 14-5 did not change the common-law rule that an acquittal of the principal was an acquittal of the accessory. State v. Jones, 101 N.C. 719, 8 S.E. 147 (1888).

Because indictment charging defendant with assaulting victim specifically named as principal the person whom the defendant aided and abetted, and the principal was acquitted of assaulting the victim at a subsequent separate trial, because the named principal was acquitted, defendant's conviction for aiding and abetting that assault had to be vacated. State v. Byrd, 122 N.C. App. 497, 470 S.E.2d 548 (1996).

Effect of Acquittal of One of Several Principals. - Where there are three charged as principals with murder, the acquittal of one of them, the others having fled the jurisdiction of the court, does not of itself acquit the prisoners on trial as accessories before or after the fact, when the evidence of their guilt of the offense charged is sufficient both as to them as accessories and the principals directly charged with the murder. State v. Walton, 186 N.C. 485, 119 S.E. 886 (1923).

Failure to Raise Acquittal of Principal on Appeal. - Where indictment charging defendant with robbery was amended at the close of evidence to allege that defendant acted as an aider and abettor, principal was acquitted of robbery at subsequent separate trial, but defendant did not argue on appeal that his conviction for robbery should be reversed on the basis that principal was acquitted of robbery, the appellate court would not address the issue and defendant's conviction for aiding and abetting robbery was not reversed. State v. Byrd, 122 N.C. App. 497, 470 S.E.2d 548 (1996).

New Trial Where Conviction of Principal Is Vacated. - Where the conviction of the principal has been vacated by an order for a new trial, a new trial as to the alleged abettor defendant must also be ordered. State v. Spencer, 18 N.C. App. 499, 197 S.E.2d 232 (1973).

Sentences Imposed Need Not Be Equal. - There is no rule of law that sentences imposed upon defendants for a crime jointly committed by them must be equal. State v. Barrow, 292 N.C. 227, 232 S.E.2d 693 (1977).

Sentences for Capital Felonies. - Although it was error for the trial court to fail to submit the special question to the jury regarding the basis of its verdict on the capital murder charge, since under the law in effect prior to October 1, 1994, both a Class A felony and a Class B felony required mandatory life sentences, the defendant was not prejudiced by the trial court's error. State v. Larrimore, 340 N.C. 119, 456 S.E.2d 789 (1995).

B. INDICTMENT.

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What Indictment Must Aver. - It is not necessary to allege maliciousness in the indictment. State v. Saults, 294 N.C. 722, 242 S.E.2d 801 (1978).

Allegation of Underlying Felony. - In order to state a violation of former G.S. 14-5, the indictment had to allege an underlying felony. State v. Hanson, 57 N.C. App. 595, 291 S.E.2d 912 (1982).

Indictment Charging Principal Felony Is Sufficient. - In cases controlled by this section, an indictment charging the principal felony will support trial and conviction as an accessory before the fact. State v. Gallagher, 313 N.C. 132, 326 S.E.2d 873 (1985).

C. EVIDENCE.

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The record of the conviction of a principal felon is admissible on the trial of the accessory, and is conclusive evidence of the conviction of the principal, and prima facie evidence of his guilt. State v. Chittem, 13 N.C. 49 (1828).

But not until judgment has been rendered on the verdict. State v. Duncan, 28 N.C. 98 (1845).

Sufficiency of Evidence. - Testimony that the accused had asked the person convicted of the murder of her husband to kill him, and that he accomplished the act the morning afterwards at the place she designated, was sufficient for a conviction of murder as an accessory before the fact. State v. Jones, 176 N.C. 702, 97 S.E. 32 (1918).

Evidence was insufficient to convict defendant of conspiracy to embezzle and embezzlement based on the actions of defendant's spouse in obtaining blank checks from the family business and using defendant's parent's signature stamp to forge nearly one-half million dollars worth of checks, all without permission, because the spouse had not received the blank checks that were forged in the course of employment or by the terms of employment and it followed that because the State had failed to prove that the spouse was guilty of embezzlement, defendant could not be convicted of aiding and abetting embezzlement without proof that an embezzlement occurred. State v. Weaver, 160 N.C. App. 613, 586 S.E.2d 841 (2003), aff'd, - N.C. - , 607 S.E.2d 599 (2005).

D. INSTRUCTIONS.

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Accessory Before the Fact. - Trial court did not commit plain error by instructing the jury on the theory of accessory before the fact as G.S. 14-5.2 did not abolish the theory of accessory before the fact, but merely abolished the distinction between an accessory before the fact and a principal; defendant was not convicted of a separate offense of accessory before the fact. The jury merely had the opportunity to find defendant guilty of burglary using the theory of accessory before the fact. State v. Surrett, 217 N.C. App. 89, 719 S.E.2d 120 (2011).

Defendant was prejudiced under G.S. 15A-1443 of the trial court's failure to instruct the jury on accessory before the fact to first degree murder pursuant to G.S. 14-5.2 because the proper instruction to the jury would have been accompanied by the special question to the jury regarding the basis of its verdict, which in turn would have determined whether she should have been sentenced to a class A or class B felony. State v. Grainger, 224 N.C. App. 623, 741 S.E.2d 364 (2012).

Defendant was not entitled to a new trial where the trial court failed to instruct the jury on accessory before the fact because she was convicted of first-degree murder under theories of both premeditation and deliberation and the felony murder rule, and her conviction of felony murder was supported by ample evidence. Defendant admitted that she asked to the two men to "freak out" her father, and sending them to attack her father, knowing they were armed, created a substantial foreseeable risk to human life. State v. Grainger, 367 N.C. 696, 766 S.E.2d 280 (2014).

Corroborating Testimony Of Principal. - Record included ample evidence corroborating the testimony of a principal because other witnesses and evidence, such as surveillance cameras, corroborated various significant aspects of the principal's testimony; yet it could not be determined that the jury did or did not base defendant's conviction" solely on the uncorroborated testimony of the principal. State v. Grainger, 224 N.C. App. 623, 741 S.E.2d 364 (2012).

Trial court erred in failing to instruct the jury on accessory before the fact to first degree murder pursuant to G.S. 14-5.2 because the State offered no evidence indicating that defendant was actually or constructively present during the commission of the crime; defendant's possible criminal actions occurred before the commission of the murder and after the principals had committed the murder and had already safely left the crime scene. State v. Grainger, 224 N.C. App. 623, 741 S.E.2d 364 (2012).

Instruction on Elements of Offense. - The State offered substantial evidence of each and every element of, and the judge properly instructed the jury on, accessory before the fact of felony, i.e., that: (1) the defendant counseled, procured or commanded the principal(s) to commit the offense; (2) the defendant was not present when the principal(s) committed the offense; and (3) the principals committed the offense. State v. Walden, 75 N.C. App. 79, 330 S.E.2d 271 (1985).

Instruction on Conspiracy. - Evidence sufficient to show defendant's involvement in a criminal conspiracy does not itself establish defendant's liability as a party to the substantive felony committed as a result of the conspiracy; it is reversible error for the court to so instruct the jury. State v. Small, 301 N.C. 407, 272 S.E.2d 128 (1980).

Instructions on Heinous, Atrocious or Cruel Aggravating Circumstance Applied to Accessory. - Court rejected defendant's contention that the submission of the especially heinous, atrocious, or cruel aggravating circumstance violated his rights under the North Carolina and United States Constitutions because it impermissibly allowed the jury to find the existence of an aggravating circumstance based solely upon his codefendants' actions; although defendant was not present when his grandmother who adopted him and his nephew were stabbed and burned to death, defendant admitted to planning the murders and enlisting his codefendants to perform them. State v. Brewington, 352 N.C. 489, 532 S.E.2d 496 (2000), cert denied, 531 U.S. 1165, 121 S. Ct. 1126, 148 L. Ed. 2d 992 (2001).

Instruction on Second Degree Murder Held Error. - Where the State sought to prove murder by use of the "accessory before the fact" theory, the trial court erred in submitting second degree murder as a possible jury verdict since on the evidence presented the jury rationally could have only either convicted or acquitted her of first degree murder. State v. Arnold, 98 N.C. App. 518, 392 S.E.2d 140 (1990), aff'd, 329 N.C. 128, 404 S.E.2d 822 (1991).

Where 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).

No Error in Declining to Submit Accessory Before the Fact as Lesser Included Offense. - Defendant was at least constructively present when the killing occurred; therefore, it was not error to decline to submit to the jury as a possible verdict accessory before the fact of murder as a lesser included offense. State v. Willis, 332 N.C. 151, 420 S.E.2d 158 (1992).

The defendant was not entitled to an instruction on accessory before the fact, since he was constructively present at the crime scene, where he dropped the perpetrator off at the scene of the robbery-murder knowing that a crime of some type was to take place, and he stayed to help the perpetrator flee the scene. State v. White, 131 N.C. App. 734, 509 S.E.2d 462 (1998).

Disjunctive Instruction Proper. - Trial court did not err in giving a disjunctive instruction because the evidence was sufficient to find defendant guilty of first-degree sexual offense under the theory that he employed a dangerous or deadly weapon in the commission of the sexual act as well as under the theory that he was aided and abetted by one or more persons in the perpetration of the crime; by joining defendant in unclothing and immobilizing the victim, others were deemed to have contributed to the commission of the crime. State v. Dick, 370 N.C. 305, 807 S.E.2d 545 (2017).


§ 14-6: Repealed by Session Laws 1981, c. 686, s. 2.

Cross References. - For present provisions as to punishment of accessories before the fact, see G.S. 14-5.2.


§ 14-7. Accessories after the fact; trial and punishment.

If any person shall become an accessory after the fact to any felony, whether the same be a felony at common law or by virtue of any statute made, or to be made, such person shall be guilty of a crime, and may be indicted and convicted together with the principal felon, or after the conviction of the principal felon, or may be indicted and convicted for such crime whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice. Unless a different classification is expressly stated, that person shall be punished for an offense that is two classes lower than the felony the principal felon committed, except that an accessory after the fact to a Class A or Class B1 felony is a Class C felony, an accessory after the fact to a Class B2 felony is a Class D felony, an accessory after the fact to a Class H felony is a Class 1 misdemeanor, and an accessory after the fact to a Class I felony is a Class 2 misdemeanor. The offense of such person may be inquired of, tried, determined and punished by any court which shall have jurisdiction of the principal felon, in the same manner as if the act, by reason whereof such person shall have become an accessory, had been committed at the same place as the principal felony, although such act may have been committed without the limits of the State; and in case the principal felony shall have been committed within the body of any county, and the act by reason whereof any person shall have become accessory shall have been committed within the body of any other county, the offense of such person guilty of a felony as aforesaid may be inquired of, tried, determined, and punished in either of said counties: Provided, that no person who shall be once duly tried for such felony shall be again indicted or tried for the same offense.

History

(1797, c. 485, s. 1, P.R.; 1852, c. 58; R.C., c. 34, s. 54; Code, s. 978; Rev., s. 3289; C.S., s. 4177; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1997-443, s. 19.25(p).)

Cross References. - For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

In General. - An accessory after the fact is one who, after a felony has been committed, with knowledge that the felony has been committed, renders personal assistance to the felon in any manner to aid him to escape arrest or punishment knowing, at the time, the person so aided has committed a felony. State v. Potter, 221 N.C. 153, 19 S.E.2d 257 (1942); State v. Williams, 17 N.C. App. 39, 193 S.E.2d 452 (1972), cert. denied, 282 N.C. 675, 194 S.E.2d 155 (1973).

An accessory after the fact under this section is one who, knowing that a felony has been committed by another, receives, relieves, comforts or assists such other, the felon, or in any manner aids him to escape arrest or punishment. 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).

Subject Matter Jurisdiction. - Variance in indictment charging defendant with accessory after the fact to first degree murder did not deprive the trial court of subject matter jurisdiction to try defendant for accessory after the fact to second degree murder, as the indictment provided defendant with adequate notice to prepare his defense and to protect him from double jeopardy; defendant was clearly apprised of the conduct that was the subject of the accusation: that he rendered aid to the perpetrator after the perpetrator killed the victim. State v. Cole, 209 N.C. App. 84, 703 S.E.2d 842 (2011), dismissed and review denied 365 N.C. 197, 709 S.E.2d 922, 2011 N.C. LEXIS 539 (N.C. 2011).

"Accessory After the Fact" Is a Substantive Crime. - Accessory after the fact is a substantive crime. State v. McIntosh, 260 N.C. 749, 133 S.E.2d 652 (1963), cert. denied, 377 U.S. 939, 84 S. Ct. 1345, 12 L. Ed. 2d 302 (1964).

Armed robbery under G.S. 14-87 differs in fact and in law from accessory after the fact under this section. State v. McIntosh, 260 N.C. 749, 133 S.E.2d 652 (1963), cert. denied, 377 U.S. 939, 84 S. Ct. 1345, 12 L. Ed. 2d 302 (1964).

The offense of being an accessory after the fact to manslaughter is a substantive felony offense. State v. Martin, 30 N.C. App. 166, 226 S.E.2d 682 (1976).

And Not a Lesser Degree of the Principal Crime. - See State v. McIntosh, 260 N.C. 749, 133 S.E.2d 652 (1963), cert. denied, 377 U.S. 939, 84 S. Ct. 1345, 12 L. Ed. 2d 302 (1964).

Hence, Participant in Felony Cannot Be Accessory. - A participant in a felony may no more be an accessory after the fact than one who commits larceny may be guilty of receiving the goods which he himself had stolen. State v. McIntosh, 260 N.C. 749, 133 S.E.2d 652 (1963), cert. denied, 377 U.S. 939, 84 S. Ct. 1345, 12 L. Ed. 2d 302 (1964).

Nor Can Acquittal as Accessory Bar Prosecution for Principal Crime. - An acquittal of a charge of accessory after the fact of armed robbery will not support a plea of former jeopardy in a subsequent prosecution of the same defendant for armed robbery. State v. McIntosh, 260 N.C. 749, 133 S.E.2d 652 (1963), cert. denied, 377 U.S. 939, 84 S. Ct. 1345, 12 L. Ed. 2d 302 (1964).

Effect of Principal's Acquittal on an Accessory After the Fact. - This section does not permit the conviction of an accessory after the fact to a felony committed by a named principal if that named principal is acquitted. State v. Robey, 91 N.C. App. 198, 371 S.E.2d 711, cert. denied, 323 N.C. 479, 373 S.E.2d 874 (1988).

Accessory Before and After the Fact Distinguished. - The elements of the crime of being an accessory after the fact are separate and distinct from those involved in the crimes of being a principal or an accessory before the fact. State v. Cabey, 307 N.C. 496, 299 S.E.2d 194 (1983).

Elements of Offense. - In order to convict a defendant of being an accessory after the fact under this section, the State must prove the following: (1) the felony has been committed by the principal; (2) the alleged accessory gave personal assistance to that principal to aid in his escaping detection, arrest, or punishment; and (3) the alleged accessory knew the principal committed the felony. State v. Duvall, 50 N.C. App. 684, 275 S.E.2d 842, rev'd on other grounds, 304 N.C. 557, 284 S.E.2d 495 (1981).

Under this section, the State had to prove three things in its prosecution of defendant as an accessory after the fact: (1) the principal committed a felony; (2) the alleged accomplice personally aided the principal in his attempts to avoid criminal liability by any means calculated to assist him in doing so; and (3) the accomplice gave such help with knowledge that the principal had committed a felony. State v. Fearing, 304 N.C. 499, 284 S.E.2d 479 (1981).

In order to prove a person was an accessory after the fact three essential elements must be shown: (1) a felony was committed; (2) the accused knew that the person he received, relieved or assisted was the person who committed the felony; and (3) the accused rendered assistance to the felon personally. State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982).

In a prosecution for accessory after the fact under this section, the State need only show that the defendant knew: (1) That a felony had been committed; (2) that the principal had committed it; and (3) that the defendant rendered assistance to the principal personally. State v. Upright, 72 N.C. App. 94, 323 S.E.2d 479 (1984), cert. denied, 313 N.C. 513, 329 S.E.2d 400; 313 N.C. 610, 332 S.E.2d 82 (1985).

Same - Robbery. - On a charge of accessory after the fact to robbery the State must show: (1) robbery, (2) the accused knew of it and (3) possessing that knowledge, he assisted the robber in escaping detection, arrest and punishment. State v. McIntosh, 260 N.C. 749, 133 S.E.2d 652 (1963), cert. denied, 377 U.S. 939, 84 S. Ct. 1345, 12 L. Ed. 2d 302 (1964); State v. Cox, 37 N.C. App. 356, 246 S.E.2d 152, appeal dismissed, 295 N.C. 649, 248 S.E.2d 253 (1978), cert. denied, 440 U.S. 930, 99 S. Ct. 1268, 59 L. Ed. 2d 487 (1979).

Same - Rape. - To convict parents of the accused as accessories to the crime of rape, the State had the burden of proving beyond a reasonable doubt these essentials of the offense charged, namely: (1) That the son had actually committed the alleged crime of rape; (2) that the parents knew that the son had committed the alleged crime of rape; and (3) that the parents assisted the son in his efforts to avoid detection, arrest and punishment. State v. Overman, 284 N.C. 335, 200 S.E.2d 604 (1973).

Same - Manslaughter. - To constitute a person an accessory after the fact to manslaughter, these essentials must appear: (1) manslaughter must have been committed; (2) the accused must know that manslaughter has been committed by the person received, relieved or assisted; (3) the accessory must render assistance to the felon personally. State v. Martin, 30 N.C. App. 166, 226 S.E.2d 682 (1976).

One cannot become an accessory after the fact until the offense has become an accomplished fact. - Thus, a person cannot be convicted as an accessory after the fact to a murder because he aided the murderer to escape, when the aid was rendered after the mortal wound was given but before death ensued, as a murder is not complete until the death results. State v. Williams, 229 N.C. 348, 49 S.E.2d 617 (1948).

The crime of accessory after the fact has its beginning after the principal offense has been committed. State v. McIntosh, 260 N.C. 749, 133 S.E.2d 652 (1963), cert. denied, 377 U.S. 939, 84 S. Ct. 1345, 12 L. Ed. 2d 302 (1964).

Joinable Offenses. - Being an accessory after the fact and aiding and abetting are joinable offenses. State v. Jewell, 104 N.C. App. 350, 409 S.E.2d 757 (1991), aff'd, 331 N.C. 379, 416 S.E.2d 3 (1992).

The offenses of accessory after the fact of a felony and being an aider and abettor to that felony are joinable offenses for purposes of indictment and trial, even though a defendant cannot be convicted of both. State v. Jewell, 104 N.C. App. 350, 409 S.E.2d 757 (1991), aff'd, 331 N.C. 379, 416 S.E.2d 3 (1992).

Aiding and Abetting as Aggravating Factor. - When a defendant pleads guilty to being an accessory after the fact of a crime, should the trial court find by a preponderance of the evidence that the defendant aided and abetted in the commission of that crime, it may use this factor in aggravation of defendant's sentence on the accessory charge. State v. Jewell, 104 N.C. App. 350, 409 S.E.2d 757 (1991), aff'd, 331 N.C. 379, 416 S.E.2d 3 (1992).

It is not necessary that the aid given by the accessory after the fact be effective to enable the felon to escape all or a part of his punishment. State v. Martin, 30 N.C. App. 166, 226 S.E.2d 682 (1976).

Effect of Directed Verdict to Principal Offense. - Since the crime of accessory after the fact has its beginning after the principal offense has been committed, a directed verdict of not guilty of armed robbery does not decide the issue of whether the defendant joined the criminal scheme after the robbery was complete. State v. Cox, 37 N.C. App. 356, 246 S.E.2d 152, appeal dismissed, 295 N.C. 649, 248 S.E.2d 253 (1978), cert. denied, 440 U.S. 930, 99 S. Ct. 1268, 59 L. Ed. 2d 487 (1979).

A directed verdict of not guilty of armed robbery only removes the issues of whether defendant participated as a principal robber or whether he aided and abetted in the commission of the robbery. The possibility remains that after the robbery was committed, the defendant assisted the felons by transporting them in his car from the scene of the crime. State v. Cox, 37 N.C. App. 356, 246 S.E.2d 152, appeal dismissed, 295 N.C. 649, 248 S.E.2d 253 (1978), cert. denied, 440 U.S. 930, 99 S. Ct. 1268, 59 L. Ed. 2d 487 (1979).

A directed verdict of not guilty of armed robbery foreclosed the State from subsequent prosecutions of defendant for armed robbery or for any lesser included offenses of armed robbery. But accessory after the fact of armed robbery is not a lesser included offense of armed robbery. Therefore, general double jeopardy motions would not bar the trial of defendant on charges of accessory after the fact to armed robbery. State v. Cox, 37 N.C. App. 356, 246 S.E.2d 152, appeal dismissed, 295 N.C. 649, 248 S.E.2d 253 (1978), cert. denied, 440 U.S. 930, 99 S. Ct. 1268, 59 L. Ed. 2d 487 (1979).

A receiver of stolen goods is not an accessory after the fact. State v. Tyler, 85 N.C. 569 (1881).

Accepting part of the proceeds of a crime does not make one an accessory after the fact; rather, it constitutes the crime of receiving stolen goods. State v. Lewis, 58 N.C. App. 348, 293 S.E.2d 638 (1982), cert. denied, 311 N.C. 766, 321 S.E.2d 152 (1983).

Evidence Prejudicial to Both Charged Felon and Accessory After the Fact. - Where the court found prejudicial error in the proof that an alleged murderer committed the charged felony, and therefore awarded her a new trial, and the State had used the same evidence to also prove defendant was an accessory-after-the-fact, defendant was also entitled to a new trial. State v. Robey, 91 N.C. App. 198, 371 S.E.2d 711, cert. denied, 323 N.C. 479, 373 S.E.2d 874 (1988).

Fact that the perpetrator of an offense pleaded guilty to a lesser-included offense did not exculpate defendant on a charge of accessory after the fact. State v. McGee, 197 N.C. App. 366, 676 S.E.2d 662 (2009).

Denial of motion to dismiss charge of accessory after the fact to voluntary manslaughter was proper where the principal and a witness testified that defendant suggested evading punishment by falsely claiming that the victim had attempted to rape defendant. State v. Jordan, 162 N.C. App. 308, 590 S.E.2d 424 (2004).

Evidence Held Sufficient. - The State presented sufficient evidence of the elements of accessory after the fact to withstand a motion to dismiss. State v. Barnes, 116 N.C. App. 311, 447 S.E.2d 478 (1994).

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).

Defendant was properly convicted of accessory after the fact to second degree murder in violation of G.S. 14-7 because the knowledge element of the offense was shown despite defendant not having seen the victim die; victim was shot at close range, which gave rise to inference that defendant knew what had happened to the victim. State v. Cole, 209 N.C. App. 84, 703 S.E.2d 842 (2011), dismissed and review denied 365 N.C. 197, 709 S.E.2d 922, 2011 N.C. LEXIS 539 (N.C. 2011).

Evidence, including testimony that defendant was told that the gun placed in his trunk was used in the murder, gave rise to an inference that defendant knew what had taken place and support the denial of his motion to dismiss; it did not matter that defendant was not successful in helping the other person escape punishment. 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).

Trial court properly denied defendant's motion to dismiss the charge of accessory after the fact, as the jury could have concluded that defendant's false statements were made in an effort to shield the identity of the actual shooter. State v. Cousin, 233 N.C. App. 523, 757 S.E.2d 332 (2014).

Evidence Held Insufficient. - Evidence that defendant removed his truck from the scene of the crimes after the truck had been used to facilitate the crimes was insufficient to support verdict of accessory after the fact of breaking or entering and larceny. State v. Fie, 80 N.C. App. 577, 343 S.E.2d 248 (1986), rev'd on other grounds, 320 N.C. 626, 359 S.E.2d 774 (1987).

Defendant's mere failure to report a crime did not render her an accessory after the fact and therefore, the State failed to prove any actus reus and the motion to dismiss that count should have been granted. State v. Ditenhafer, 258 N.C. App. 537, 812 S.E.2d 896 (2018).

Evidence that witness was accessory after the fact did not subject her testimony to rules relating to accomplice testimony. State v. Cabey, 307 N.C. 496, 299 S.E.2d 194 (1983).

Instruction Not Warranted. - The trial court did not err in failing to instruct as to one defendant on the offenses of accessory before and accessory after the fact to the crimes of armed robbery and murder where the evidence showed that both defendants were present at the scene and were acting together in the commission of the armed robbery, and that the murders occurred in furtherance of their common purpose to commit this crime or as a natural consequence thereof. State v. Oliver, 302 N.C. 28, 274 S.E.2d 183 (1981).

Instruction Warranted. - 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).

Applied in State v. Poole, 25 N.C. App. 715, 214 S.E.2d 774 (1975); 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); State v. Patterson, 249 N.C. App. 659, 791 S.E.2d 517 (2016), review denied, 794 S.E.2d 328, 2016 N.C. LEXIS 1053 (2016).

Cited in State v. Carrington, 35 N.C. App. 53, 240 S.E.2d 475 (1978); State v. Duvall, 304 N.C. 557, 284 S.E.2d 495 (1981); State v. Thomas, 325 N.C. 583, 386 S.E.2d 555 (1989); State v. Suites, 109 N.C. App. 373, 427 S.E.2d 318 (1993); State v. Brown, 335 N.C. 477, 439 S.E.2d 589 (1994); State v. Mann, 355 N.C. 294, 560 S.E.2d 776 (2002).


ARTICLE 2A. Habitual Felons.

Sec.

§ 14-7.1. Persons defined as habitual felons.

  1. Any person who has been convicted of or pled guilty to three felony offenses in any federal court or state court in the United States or combination thereof is declared to be an habitual felon and may be charged as a status offender pursuant to this Article.
  2. For the purpose of this Article, a felony offense is defined to include all of the following:
    1. An offense that is a felony under the laws of this State.
    2. An offense that is a felony under the laws of another state or sovereign that is substantially similar to an offense that is a felony in North Carolina, and to which a plea of guilty was entered, or a conviction was returned regardless of the sentence actually imposed.
    3. An offense that is a crime under the laws of another state or sovereign that does not classify any crimes as felonies if all of the following apply:
      1. The offense is substantially similar to an offense that is a felony in North Carolina.
      2. The offense may be punishable by imprisonment for more than a year in state prison.
      3. A plea of guilty was entered or a conviction was returned regardless of the sentence actually imposed.
    4. An offense that is a felony under federal law. Provided, however, that federal offenses relating to the manufacture, possession, sale and kindred offenses involving intoxicating liquors shall not be considered felonies for the purposes of this Article.
  3. For the purposes of this Article, felonies committed before a person attains the age of 18 years shall not constitute more than one felony. The commission of a second felony shall not fall within the purview of this Article unless it is committed after the conviction of or plea of guilty to the first felony. The commission of a third felony shall not fall within the purview of this Article unless it is committed after the conviction of or plea of guilty to the second felony. Pleas of guilty to or convictions of felony offenses prior to July 6, 1967, shall not be felony offenses within the meaning of this Article. Any felony offense to which a pardon has been extended shall not for the purpose of this Article constitute a felony. The burden of proving such pardon shall rest with the defendant and the State shall not be required to disprove a pardon.

History

(1967, c. 1241, s. 1; 1971, c. 1231, s. 1; 1979, c. 760, s. 4; 1981, c. 179, s. 10; 2011-192, s. 3(b); 2017-176, s. 2(a).)

Editor's Note. - Session Laws 2011-192, s. 3(e), provides: "This section becomes effective December 1, 2011, and applies to any offense that occurs on or after that date and that is the principal felony offense for a charge of either the status offenses of habitual breaking and entering or habitual felon. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions."

Session Laws 2011-192, s. 9, provides: "This act shall be known as 'The Justice Reinvestment Act of 2011'."

Session Laws 2017-176, s. 2(c), made the rewriting of subsection (b) of this section by Session Laws 2017-176, s. 2(a), effective December 1, 2017, and applicable to any offense committed on or after that date and that is the principal felony offense for a charge of a status offense of habitual felon. Additionally, prosecutions for offenses committed before the effective date of this section are not abated or affected by this section, and the statutes that would be applicable but for this section remain applicable to those prosecutions.

Effect of Amendments. - Session Laws 2011-192, s. 3(b), effective December 1, 2011, added "and may be charged as a status offender pursuant to this Article" in the first sentence. For applicability, see Editor's note.

Session Laws 2017-176, s. 2(a), added the subsection and subdivision designations; rewrote subsection (b), which read: "For the purpose of this Article, a felony offense is defined as an offense which is a felony under the laws of the State or other sovereign wherein a plea of guilty was entered or a conviction was returned regardless of the sentence actually imposed. Provided, however, that federal offenses relating to the manufacture, possession, sale and kindred offenses involving intoxicating liquors shall not be considered felonies for the purposes of this Article." For effective date and applicability, see editor's note.

Legal Periodicals. - For survey of 1977 criminal law, see 56 N.C.L. Rev. 965 (1978).

For note, "The Treatment of Foreign Country Convictions As Predicates for Sentence Enhancement Under Recidivist Statutes," see 44 Duke L.J. 134.

For article, "Once, Twice, Four Times a Felon: North Carolina's Unconstitutional Recidivist Statutes," see 24 Campbell L. Rev. 115 (2001).

For note, "United States v. Bryant, Federal Habitual Offender Laws, and the Rights of Defendants in Tribal Courts: A Better Solution to Domestic Violence Exists," see 39 Campbell L. Rev. 205 (2017).

CASE NOTES

Enhanced Punishment Is Constitutional. - The Legislature is not constitutionally prohibited from enhancing punishment for habitual offenders. State v. Todd, 313 N.C. 110, 326 S.E.2d 249 (1985).

The Legislature has acted within constitutionally permissible bounds in enacting legislation designed to identify habitual criminals and to authorize enhanced punishment. State v. Todd, 313 N.C. 110, 326 S.E.2d 249 (1985).

The habitual felon provisions of G.S. 14-7.1 et seq. (the Habitual Felon Act) do not violate N.C. Const., Art. I, § 6. State v. Wilson, 139 N.C. App. 544, 533 S.E.2d 865, cert. denied, 353 N.C. 279, 546 S.E.2d 395 (2000); State v. Skipper, 146 N.C. App. 532, 553 S.E.2d 690 (2001).

Defendant's constitutional challenges to his sentence as an habitual felon failed because (1) the North Carolina Habitual Felon Act was not violative of the Separation of Powers Clause; (2) there was no double jeopardy infirmity inherent in the Habitual Felon Act as applied in conjunction with the North Carolina Structured Sentencing Act; and (3) the state appellate court and the state supreme court have rejected constitutional challenges to the Habitual Felon Act based on allegations of cruel and unusual punishment. State v. McIlwaine, 169 N.C. App. 397, 610 S.E.2d 399 (2005).

Procedures Are Constitutional. - The procedures set forth in G.S. 14-7.1 through 14-7.6 comport with the defendant's federal and State constitutional guarantees. State v. Todd, 313 N.C. 110, 326 S.E.2d 249 (1985).

Purpose. - The primary purpose of a recidivist statute is to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that person's most recent offense, but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. State v. Aldridge, 76 N.C. App. 638, 334 S.E.2d 107 (1985).

The only reason for establishing that an accused is an habitual felon is to enhance the punishment which would otherwise be appropriate for the substantive felony which he has allegedly committed while in such a status. State v. Thomas, 82 N.C. App. 682, 347 S.E.2d 494 (1986), cert. denied, 320 N.C. 637, 360 S.E.2d 102 (1987); State v. Penland, 89 N.C. App. 350, 365 S.E.2d 721 (1988).

Persons Intended to Be Affected. - The manifest intent of the General Assembly in enacting the Habitual Felon Act was to insure lengthier sentences for those persons who repeatedly violate the criminal laws of this State. Nowhere in the Act is there any indication that the Act was intended to apply only to those persons who repeatedly violate the same criminal law, and the court declined to write any such requirement into the law. State v. Hodge, 112 N.C. App. 462, 436 S.E.2d 251 (1993).

Determination of Whether Prior Conviction Constitutes a Felony a Question of North Carolina Law, Not Federal Law. - Determination of whether a prior conviction constitutes a felony under the possession of a firearm by a felon offense and the habitual felon statute is a question of North Carolina state law, not federal law. State v. Northington, 230 N.C. App. 575, 749 S.E.2d 925 (2013), appeal dismissed, 755 S.E.2d 622, 2014 N.C. LEXIS 225 (2014).

Being an habitual felon is not a crime but is a status, the attaining of which subjects a person thereafter convicted of a crime to an increased punishment for that crime. The status itself, standing alone, will not support a criminal sentence. State v. Allen, 292 N.C. 431, 233 S.E.2d 585 (1977).

Being an habitual felon is not a substantive crime. State v. Thomas, 82 N.C. App. 682, 347 S.E.2d 494 (1986), cert. denied, 320 N.C. 637, 360 S.E.2d 102 (1987).

Being an habitual felon is not a crime but is a status. The status itself, standing alone, will not support a criminal sentence, and a court may not treat the violation of the Habitual Felon Act as a substantive offense. State v. Penland, 89 N.C. App. 350, 365 S.E.2d 721 (1988).

Because this section simply defines certain persons to be habitual felons, who, as such, are subject to greater punishment for criminal offenses, being an habitual felon is not a crime and cannot support, standing alone, a criminal sentence; rather, being an habitual felon is a status justifying an increased punishment for the principal felony. State v. Priddy, 115 N.C. App. 547, 445 S.E.2d 610, cert. denied, 337 N.C. 805, 449 S.E.2d 751 (1994).

Being an habitual felon is not a crime but is a status, which subjects the individual subsequently convicted of a crime to increased punishment for that crime. State v. Patton, 119 N.C. App. 229, 458 S.E.2d 230 (1995), rev'd on other grounds, 342 N.C. 633, 466 S.E.2d 708 (1996).

Trial court erred in imposing a habitual felon sentence in a separate judgment from principal felony convictions, and directing that the latter run at the expiration of the habitual felon sentence; on remand, the court should calculate defendant's prior record level pursuant to G.S. 15A-1340.14 and impose sentences upon the "underlying felonies as . . . Class C felonies." State v. Wilson, 139 N.C. App. 544, 533 S.E.2d 865, cert. denied, 353 N.C. 279, 546 S.E.2d 395 (2000).

Failure to Include Status in Indictment. - Trial court had jurisdiction to try the defendant as habitual felon even though indictments for the underlying felonies did not charge the defendant with being a habitual felon; the principal felony indictment did not need to refer to the defendant's alleged status as a habitual offender and defendant received adequate notice by separate indictment of the State's intent to prosecute her as a habitual felon. State v. Sanders, 95 N.C. App. 494, 383 S.E.2d 409, cert. denied, 325 N.C. 712, 388 S.E.2d 470 (1989).

Sufficiency of Indictment. - Where defendant did not dispute that his habitual felony indictment included each element specified in G.S. 14-7.3, the indictment was facially valid; defendant's claim that there was a variance between the indictment and the proof offered in support of the indictment should have been raised by a motion to dismiss and was waived by his guilty plea. State v. McGee, 175 N.C. App. 586, 623 S.E.2d 782 (2006), review denied, appeal dismissed, 360 N.C. 542, 634 S.E.2d 891 (2006).

State presented substantial evidence that defendant had attained the status of habitual felon as each of the three judgments introduced by the State listed the name of defendant as the same name by which defendant was charged in the latest indictment and defendant introduced no evidence to rebut that prima facie showing by the State. State v. Tyson, 189 N.C. App. 408, 658 S.E.2d 285 (2008).

Indictment Held Sufficient. - Defendant contended that because the specific name of the controlled substance was not alleged in the indictment, the indictment was not sufficient to charge habitual felon; however, the habitual felon indictment alleging a prior conviction for felony possession with intent to manufacture, sell, or deliver a Schedule I controlled substance, in addition to two other felony convictions, was sufficient notice under North Carolina and case law. Additionally, because there was no defect in the indictment, the trial court had jurisdiction to sentence defendant as an habitual felon under G.S. 14-7.1 and G.S. 14-7.3. State v. McIlwaine, 169 N.C. App. 397, 610 S.E.2d 399 (2005).

Although defendant's habitual felon indictment predated defendant's indictment for possessing stolen property, habitual felon indictment was ancillary to the possessing stolen property charges and complied with G.S. 14-7.1. State v. Murray, 154 N.C. App. 631, 572 S.E.2d 845 (2002), cert. denied, 357 N.C. 467, 586 S.E.2d 778 (2003).

Conviction on Predicate Felonies. - Defendant's argument, that he was not convicted for purposes of G.S. 14-7.1 until he was sentenced for the first predicate felony, and, therefore, he committed the second felony before he was "convicted" of the first felony, did not challenge the sufficiency of the indictment on its face, and thus defendant's guilty plea waived this argument; in any event, "conviction" referred to the jury's or factfinder's guilty verdict. State v. McGee, 175 N.C. App. 586, 623 S.E.2d 782 (2006), review denied, appeal dismissed, 360 N.C. 542, 634 S.E.2d 891 (2006).

Because possession of marijuana with intent to sell and deliver is a felony under North Carolina state law, the trial court properly relied on that conviction as one of defendant's three prior convictions that qualified him for habitual felony status and satisfied the predicate felony element in prosecuting the possession of firearm by a felon, and the trial court had jurisdiction to sentence defendant as a habitual felon. State v. Northington, 230 N.C. App. 575, 749 S.E.2d 925 (2013), appeal dismissed, 755 S.E.2d 622, 2014 N.C. LEXIS 225 (2014).

Separate Hearing to Determine Status Not Required. - The Habitual Felons Act does not authorize an independent proceeding to determine defendant's status as a habitual felon separate from the prosecution of a predicate substantive felony; the habitual felon indictment is necessarily ancillary to the indictment for the substantive felony. State v. Cheek, 339 N.C. 725, 453 S.E.2d 862 (1995).

A separate habitual felon indictment is not required for each substantive felony indictment. State v. Patton, 342 N.C. 633, 466 S.E.2d 708 (1996).

Printouts from the Automated Criminal/Infraction System (ACIS) database were admissible evidence to prove a prior felony under the Habitual Felon Act and thus, were not barred by the best evidence rule because the clerk of court, who maintained the physical court records, testified that the printout was a certified true copy of the information in ACIS; the best evidence rule does not bar the admission of the printout merely because the original judgment was unaccounted for at trial. State v. Waycaster, 260 N.C. App. 684, 818 S.E.2d 189 (2018).

This Article does not authorize an independent proceeding to establish a defendant's status as an habitual felon. One must be charged as an habitual felon prior to the entry of a plea or a conviction on the substantive offense. Hyman v. Garrison, 567 F. Supp. 588 (E.D.N.C. 1983).

Properly construed, this article clearly contemplates that when one who has already attained the status of an habitual felon is indicted for the commission of another felony, that person may then be also indicted in a separate bill as being an habitual felon. It is likewise clear that the proceeding by which the State seeks to establish that a defendant is an habitual felon is necessarily ancillary to a pending prosecution for the "principal," or substantive, felony. Hyman v. Garrison, 567 F. Supp. 588 (E.D.N.C. 1983).

Admission of Habitual Felon Status. - Where admission of evidence showing that defendant previously had been adjudicated an habitual felon could not have affected the outcome of defendant's habitual felon proceeding, such evidence was not improperly admitted. State v. Bishop, 343 N.C. 518, 472 S.E.2d 842 (1996), cert. denied, 519 U.S. 1097, 117 S. Ct. 779, 136 L. Ed. 2d 723 (1997).

The prosecution may not use the conviction of the substantive felony to satisfy the requirements of this article. Simply stated, a person may not be indicted as an habitual felon until he is indicted for his fourth felony offense. Hyman v. Garrison, 567 F. Supp. 588 (E.D.N.C. 1983).

1973 Plea of Nolo Contendere. - Sentence entered in 1973 (before the enactment of G.S. 15A-1022), pursuant to plea of nolo contendere was not conviction for purposes of this section. State v. Petty, 100 N.C. App. 465, 397 S.E.2d 337 (1990).

Guilty Plea Valid. - Failure of the trial court to inform defendant of the maximum of minimum sentence did not invalidate defendant's guilty plea to being an habitual offender. State v. Szucs, 207 N.C. App. 694, 701 S.E.2d 362 (2010).

A no contest plea is a "conviction" within the meaning of this section. State v. Jackson, 128 N.C. App. 626, 495 S.E.2d 916 (1998), review dismissed, 349 N.C. 287, 507 S.E.2d 37 (1998).

"Conviction", in the context of this section, includes final judgments entered upon the entry of a no contest plea, provided the no contest plea was entered after July 1, 1975. State v. Jackson, 128 N.C. App. 626, 495 S.E.2d 916 (1998), review dismissed, 349 N.C. 287, 507 S.E.2d 37 (1998).

Failure to be Present. - In light of the fact that defendant had waived his right to be at his trial on drug charges due to his unexplained absence from the court, there was no error on the part of the trial court with continuing with the habitual offender portion of defendant's trial since he was informed of the previous convictions the State intended to use and was given a fair opportunity to either admit or deny them or remain silent. State v. Davis, 186 N.C. App. 242, 650 S.E.2d 612, review denied, 362 N.C. 89, 656 S.E.2d 280 (2007).

Fair Sentencing Act. - Although the principal provisions of the Fair Sentencing Act are codified in Chapter 15A, Article 81A, the act resulted in revisions to other portions of the general statutes. See e.g., Chapter 14, Articles 1, 2, 2A, 33; Chapter 15A, Articles 58, 81A, 82, 83, 85, 85A, 89, 91; Chapter 148, Article 2, and Chapter 162, Article 4. State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983).

For discussion of the historical background, policies, purposes, and implementation of the new Fair Sentencing Act, see State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983).

Structured Sentencing Act. - The Habitual Felon Act, G.S. 14-7.1 to 14-7.6 is different than the Structured Sentencing Act, G.S. 15A-1340.10 to 15A-1340.23, but does not conflict with that act; the Habitual Offender Act elevates a convicted person's status within structured sentencing so that the person is eligible for a longer minimum and maximum sentence. State v. Parks, 146 N.C. App. 568, 553 S.E.2d 695 (2001), cert. denied, appeal dismissed, 355 N.C. 220, 560 S.E.2d 355 (2002), cert. denied, 537 U.S. 832, 123 S. Ct. 140, 154 L. Ed. 2d 49 (2002).

The Structured Sentencing Act, G.S. 15A-1340.10 to 15A-1340.23 may be applied together with the Habitual Felon Act, G.S. 14-7.1 to 14-7.6, as long as different convictions justify the application of each. State v. Parks, 146 N.C. App. 568, 553 S.E.2d 695 (2001), cert. denied, appeal dismissed, 355 N.C. 220, 560 S.E.2d 355 (2002), cert. denied, 537 U.S. 832, 123 S. Ct. 140, 154 L. Ed. 2d 49 (2002).

Combined use of the Habitual Felon Act, G.S. 14-7.1 et seq., and the Structured Sentencing Act, G.S. 15A-1340.10 et seq., when imposing a sentence on an habitual felon, was not a violation of double jeopardy. State v. Cates, 154 N.C. App. 737, 573 S.E.2d 208 (2002), cert. denied, 356 N.C. 682, 577 S.E.2d 897 (2003), cert. denied, 540 U.S. 846, 124 S. Ct. 121, 157 L. Ed. 2d 84 (2003).

Basis of Sentencing Habitual Felon. - In sentencing a habitual felon, the duration of the sentence is based not only on the defendant's most recent offense, but on his past criminal conduct as well. State v. Aldridge, 76 N.C. App. 638, 334 S.E.2d 107 (1985).

Consideration of Aggravating Factors. - The sentencing court can rely on certain prior criminal convictions to aggravate a current sentence; however, the court cannot consider as separate aggravating factors both the status of being an habitual felon and the felonies underlying the habitual felon adjudication. State v. Kirkpatrick, 345 N.C. 451, 480 S.E.2d 400 (1997).

Gross disproportionality principle applied to habitual felon sentencing; however, a prison sentence of 168 to 211 months for obtaining property by false pretenses was not grossly disproportionate where the predicate felonies were serious, included at least one violent offense, and the current charges arose out of defendant's use of a counterfeit check and false account scheme to obtain vehicles valued at $42,998 and $13,582. State v. Clifton, 158 N.C. App. 88, 580 S.E.2d 40 (2003), cert. denied, 357 N.C. 463, 586 S.E.2d 266 (2003).

Habitual Felon and Habitual Misdemeanor Assault. - Fact that the offense of felony assault inflicting serious bodily injury was used as a predicate offense to charge both habitual misdemeanor assault and habitual felon did not render an indictment defective; however, that same offense could not be used to determine defendant's prior record level at sentencing. State v. Sydnor, 246 N.C. App. 353, 782 S.E.2d 910 (2016).

Sentence on Conviction as Habitual Felon. - Upon a conviction as an habitual felon, the court must sentence the defendant for the underlying felony as a Class C felon. State v. Penland, 89 N.C. App. 350, 365 S.E.2d 721 (1988).

Sentence Enhancement. - The State did not present substantial evidence that third conviction relied upon to enhance sentence as a habitual felon was a felony, where State presented it's evidence regarding the questioned offense through a court clerk who read the contents of an out-of-state indictment and judgment for the offense, the indictment did not charge defendant with felonious possession of stolen property, and did not recite that defendant pled guilty to a felony or was sentenced as a felon, and there was no certification from any official that the offense to which defendant pled was a felony in that state at the time. State v. Lindsey, 118 N.C. App. 549, 455 S.E.2d 909 (1995).

State's use of defendant's prior misdemeanor convictions to enhance a sentence already enhanced under the Habitual Felon Act, G.S. 14-7.1 et seq., did not constitute cruel and unusual punishment. State v. Hall, 174 N.C. App. 353, 620 S.E.2d 723 (2005).

Evidence Insufficient to Establish Habitual Offender Status. - Defendant's sentencing as a habitual offender required reversal based on the order reversing defendant's conviction for felony assault with a deadly weapon on a government official because defendant then lacked the criminal history to support the habitual offender enhancement. State v. Smith, 186 N.C. App. 57, 650 S.E.2d 29 (2007).

Use of Prior Convictions. - Defendant's prior convictions will either serve to establish his status as an habitual felon pursuant to G.S. 15-7.1 or to increase his prior record level pursuant to G.S. 15A-1340.14(b)(1-5); the existence of prior convictions may not be used to increase a defendant's sentence pursuant to both provisions at the same time. State v. Bethea, 122 N.C. App. 623, 471 S.E.2d 430 (1996).

Section 14-7.6 does not prohibit the use of convictions used to establish the defendant's status as an habitual offender to assign points pursuant to G.S. 15A-1340(b)(6) and (b)(7), because these provisions address the gravity and circumstances of the offense, rather than the mere existence of a prior offense. State v. Bethea, 122 N.C. App. 623, 471 S.E.2d 430 (1996).

Where defendant's prior convictions for possession of cocaine were defined by G.S. 90-95(d)(2) as misdemeanors punishable as felonies, they could not support the charges of possession of a firearm by a felon and being a habitual felon under G.S. 14-415.1 and G.S. 14-7.1. State v. Sneed, 161 N.C. App. 331, 588 S.E.2d 74 (2003).

Habitual offender charge was supported by a judgment, signed by the presiding judge on the uniform citation form and included in the record on appeal and two other charges which had been consolidated for judgment but which were two separate offenses under G.S. 20-138.5. State v. Allen, 164 N.C. App. 665, 596 S.E.2d 261 (2004).

Defendant's prior conviction for possession of cocaine under G.S. 90-95(d)(2) was a felony and was properly used as a basis for his conviction upon his plea of guilty to being a habitual felon under G.S. 14-7.1. State v. Jones, 358 N.C. 473, 598 S.E.2d 125 (2004).

Defendant was properly sentenced as a habitual offender where the record showed that defendant had been convicted of three previous felony offenses, including possession of cocaine. State v. Nettles, 170 N.C. App. 100, 612 S.E.2d 172 (2005).

Defendant was erroneously sentenced as a habitual offender because one of the prior convictions relied upon was a conviction from New Jersey for an offense that was not a felony in New Jersey. State v. Moncree, 188 N.C. App. 221, 655 S.E.2d 464 (2008).

Attempted Assault With Deadly Weapon. - Defendant's prior conviction for attempted assault with a deadly weapon inflicting serious injury could support later charges for possession of a firearm by a convicted felon and attaining habitual felon status where the offense of attempted assault with a deadly weapon inflicting serious injury was recognized in North Carolina under the show-of-violence rule. State v. Floyd, 369 N.C. 329, 794 S.E.2d 460 (2016).

Defendant Has Burden of Proving Prior Felony Was Set Aside. - Though defendant may have had a valid defense to a habitual felony proceeding if he could establish that a juvenile felony conviction was unconditionally discharged under the provisions of 18 U.S.C.S. § 5021(a), defendant did not submit any evidence of such a discharge and thereby failed to carry his burden of proof under G.S. 14-7.1 to show that a prior felony was set aside. State v. Brewington, 170 N.C. App. 264, 612 S.E.2d 648 (2005), cert. denied, 360 N.C. 67, 621 S.E.2d 881 (2005).

This section did not prohibit defendant's felony sentence from being enhanced on the grounds that he was an habitual felon when elements necessary to prove that he was an habitual felon were the same as those elements which were used to support the underlying felony. State v. Misenheimer, 123 N.C. App. 156, 472 S.E.2d 191 (1996).

Where the indictment referenced a principal felony which was subsequently dismissed; the principal felony was not an essential element of being an habitual felon and was, therefore, treated as surplusage and ignored. State v. Bowens, 140 N.C. App. 217, 535 S.E.2d 870 (2000).

Imposition of a 30-year sentence for a habitual felon who under the facts could have received a maximum sentence of life imprisonment under G.S. 14-1.1 was within constitutional limits and did not constitute cruel and unusual punishment. State v. Aldridge, 76 N.C. App. 638, 334 S.E.2d 107 (1985).

Issuance of a habitual felon indictment prior to the substantive felony indictment did not by itself void the habitual felon indictment where the notice and procedural requirements of the Habitual Felons Act, G.S. 14-7.1 to 14-7.6, were satisfied. State v. Blakney, 156 N.C. App. 671, 577 S.E.2d 387, cert. denied, 357 N.C. 252, 582 S.E.2d 611 (2003).

Change of Date on Indictment. - It was the fact that another felony was committed, not its specific date, which was the essential question in the habitual felon indictment; therefore, because the date alleged in the indictment was neither an essential nor a substantial fact as to the charge of habitual felon, the trial court properly allowed the State to change a date in the habitual felon indictment. State v. Locklear, 117 N.C. App. 255, 450 S.E.2d 516 (1994).

Separate Judgment and Commitment Held Error. - In prosecution for assault with a deadly weapon upon a law enforcement officer and being an habitual felon, the trial court erred in sentencing defendant in a separate judgment and commitment as an habitual felon. State v. Penland, 89 N.C. App. 350, 365 S.E.2d 721 (1988).

Notice to Defendant of Habitual Offender Allegation Required Before Plea. - Defendant must have notice of the allegation of habitual felon status at the time of his plea to the underlying substantive felony charge. State v. Oakes, 113 N.C. App. 332, 438 S.E.2d 477, cert. denied, 336 N.C. 76, 445 S.E.2d 43 (1994).

Trial court did not err in considering defendant's prior adjudication as an habitual felon as a nonstatutory aggravating factor when sentencing defendant for uttering an instrument bearing a forged endorsement. State v. Kirkpatrick, 123 N.C. App. 86, 472 S.E.2d 371 (1996), aff'd, 346 N.C. 451, 480 S.E.2d 400 (1997).

Length of Time Since Past Conviction. - Under G.S. 14-7.1, a nineteen-year-old conviction could be a predicate for habitual felon status. State v. Hensley, 156 N.C. App. 634, 577 S.E.2d 417 (2003), cert. denied, 357 N.C. 167, 581 S.E.2d 64 (2003).

No Double Jeopardy Violation. - That a cocaine possession offense was used to support both an underlying substantive felony (the "felon" portion of the offense of "felon in possession of a firearm") and a habitual felon indictment did not subject defendant to double jeopardy. State v. Glasco, 160 N.C. App. 150, 585 S.E.2d 257 (2003).

Selective Prosecution Not Shown. - Without substantial evidence of intentional discrimination, and absent a showing that the prosecutorial system was motivated by discriminatory purpose and had discriminatory effect, a District Attorney did not abuse his prosecutorial discretion in deciding to seek indictments against all individuals eligible for prosecution as habitual felons; defendant's claim that he was subject to selective prosecution was without merit. State v. Blyther, 175 N.C. App. 226, 623 S.E.2d 43 (2005).

Motion to Dismiss Properly Denied. - Defendant's motion to dismiss a habitual felon charge was properly denied because, during defendant's trial for failing to register as sex offender, the State introduced evidence of defendant's conviction in 1987 for first-degree sexual offense and during habitual felon phase, the State introduced evidence of defendant's convictions for two other felonies; in a habitual felon proceeding, there was no need to reintroduce evidence from hearing for principal offense, and the introduction of the three felonies was enough for jury to decide that defendant had attained the status of habitual felon. State v. Hoskins, 225 N.C. App. 177, 736 S.E.2d 631 (2013).

Applied in State v. Moore, 102 N.C. App. 434, 402 S.E.2d 435 (1991); State v. Gentry, 135 N.C. App. 107, 519 S.E.2d 68 (1999); State v. Brown, 146 N.C. App. 299, 552 S.E.2d 234 (2001), cert. denied and appeal dismissed, 354 N.C. 576, 559 S.E.2d 186 (2001), cert. denied, 535 U.S. 1102, 122 S. Ct. 2305, 152 L. Ed. 2d 1061 (2002); State v. Lee, 150 N.C. App. 701, 564 S.E.2d 597 (2002), cert. denied, 356 N.C. 171, 568 S.E.2d 856 (2002); 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); State v. Scott, 167 N.C. App. 783, 607 S.E.2d 10 (2005); State v. Taylor, 203 N.C. App. 448, 691 S.E.2d 755 (2010), cert. dismissed 366 N.C. 408, 736 S.E.2d 180, 2012 N.C. LEXIS 1170 (2012); State v. Langley, 254 N.C. App. 186, 803 S.E.2d 166 (2017).

Cited in State v. Williams, 295 N.C. 655, 249 S.E.2d 709 (1978); State v. Winstead, 78 N.C. App. 180, 336 S.E.2d 721 (1985); State v. Rogers, 109 N.C. App. 491, 428 S.E.2d 220 (1993); State v. Harris, 115 N.C. App. 42, 444 S.E.2d 226 (1994); State v. Baldwin, 117 N.C. App. 713, 453 S.E.2d 193 (1995); State v. Brunson, 120 N.C. App. 571, 463 S.E.2d 417 (1995); State v. Little, 126 N.C. App. 262, 484 S.E.2d 835 (1997); State v. Vaughn, 130 N.C. App. 456, 503 S.E.2d 110 (1998), aff'd, 350 N.C. 88, 511 S.E.2d 638 (1999); State v. Davis, 130 N.C. App. 675, 505 S.E.2d 138 (1998); State v. Briggs, 137 N.C. App. 125, 526 S.E.2d 678 (2000); State v. Smith, 139 N.C. App. 209, 533 S.E.2d 518 (2000); State v. Hairston, 137 N.C. App. 352, 528 S.E.2d 29 (2000); State v. Briggs, 140 N.C. App. 484, 536 S.E.2d 858 (2000); State v. Gilmore, 142 N.C. App. 465, 542 S.E.2d 694 (2001); State v. Fulp, 144 N.C. App. 428, 548 S.E.2d 785 (2001), cert. granted, 354 N.C. 71, 553 S.E.2d 205 (2001); State v. Vardiman, 146 N.C. App. 381, 552 S.E.2d 697 (2001), appeal dismissed, 355 N.C. 222, 559 S.E.2d 794 (2002), cert. denied, 537 U.S. 833, 123 S. Ct. 142, 154 L. Ed. 2d 51 (2002); State v. Norman, 149 N.C. App. 588, 562 S.E.2d 453 (2002); State v. Dunn, 154 N.C. App. 1, 571 S.E.2d 650 (2002); State v. May, 159 N.C. App. 159, 583 S.E.2d 302 (2003); State v. Forrest, 168 N.C. App. 614, 609 S.E.2d 241 (2005); State v. McBride, 173 N.C. App. 101, 618 S.E.2d 754 (2005); State v. Johnson, 186 N.C. App. 673, 651 S.E.2d 907 (2007); Lineberger v. N.C. Dep't of Corr., 189 N.C. App. 1, 657 S.E.2d 673 (2008), aff'd, in part, review improvidently allowed, in part, 362 N.C. 675, 669 S.E.2d 320 (2008); State v. Smith, 192 N.C. App. 690, 666 S.E.2d 191 (2008), cert. denied 130 S. Ct. 3325, 2010 U.S. LEXIS 4297, 176 L. Ed. 2d 1221 (U.S. 2010); State v. Webb, 192 N.C. App. 719, 666 S.E.2d 212 (2008); State v. Tanner, 193 N.C. App. 150, 666 S.E.2d 845 (2008); State v. Miller, 363 N.C. 96, 678 S.E.2d 592 (2009); State v. Haymond, 203 N.C. App. 151, 691 S.E.2d 108 (2010); State v. Lackey, 204 N.C. App. 153, 693 S.E.2d 218 (2010); State v. Ross, 207 N.C. App. 379, 700 S.E.2d 412 (2010), review denied 717 S.E.2d 377, 2011 N.C. LEXIS 666 (N.C. 2011); State v. Blackmon, 208 N.C. App. 397, 702 S.E.2d 833 (2010); State v. Womack, 211 N.C. App. 309, 712 S.E.2d 193 (2011); State v. Claxton, 225 N.C. App. 150, 736 S.E.2d 603 (2013); State v. Threadgill, 227 N.C. App. 175, 741 S.E.2d 677 (2013), review dismissed, 747 S.E.2d 539, 2013 N.C. LEXIS 821 (2013), review denied, 747 S.E.2d 538, 2013 N.C. LEXIS 824 (2013), cert. denied, 2014 U.S. LEXIS 471, 187 L. Ed. 2d 821 (U.S. 2014); State v. Blakney, 233 N.C. App. 516, 756 S.E.2d 844 (2014); State v. Rorie, 242 N.C. App. 655, 776 S.E.2d 338 (2015); State v. Jefferies, 243 N.C. App. 455, 776 S.E.2d 872 (2015);.


§ 14-7.2. Punishment.

When any person is charged by indictment with the commission of a felony under the laws of the State of North Carolina and is also charged with being an habitual felon as defined in G.S. 14-7.1, he must, upon conviction, be sentenced and punished as an habitual felon, as in this Chapter provided, except in those cases where the death penalty or a life sentence is imposed.

History

(1967, c. 1241, s. 2; 1981, c. 179, s. 11.)

CASE NOTES

Being an habitual felon is not a crime, but is a status the attaining of which subjects a person thereafter convicted of a crime to an increased punishment for that crime. The status itself, standing alone, will not support a criminal sentence. State v. Allen, 292 N.C. 431, 233 S.E.2d 585 (1977).

The only reason for establishing that an accused is an habitual felon is to enhance the punishment which would otherwise be appropriate for the substantive felony which he has allegedly committed while in such a status. The effect of such a proceeding is to enhance the punishment of those found guilty of crime who are also shown to have been convicted of other crimes in the past. State v. Allen, 292 N.C. 431, 233 S.E.2d 585 (1977).

The district attorney has the authority and discretion to withdraw a habitual felon indictment as to some or all of the underlying felony charges pending against a defendant, up until the time that the jury returns a verdict of guilty that defendant had attained the status of a habitual felon. Once such a verdict has been returned, then the court must sentence defendant as a habitual felon pursuant to G.S. 14-7.2; however, G.S.14-7.2 is not applicable until defendant has been convicted of both the underlying felony and habitual felon status. State v. Murphy, 193 N.C. App. 236, 666 S.E.2d 880 (2008).

Because a prosecutor had the discretion whether to prosecute defendant as a habitual felon or not and had the authority to dismiss charges against defendant at any stage of the proceedings under G.S. 15A-931(a), the prosecutor could only seek habitual felon status under G.S. 14-7.2 and G.S. 14-7.6 as to a possession of a firearm charge and not as to attempted robbery and robbery charges. State v. Murphy, 193 N.C. App. 236, 666 S.E.2d 880 (2008).

Habitual Felon and Habitual Misdemeanor Assault. - Fact that the offense of felony assault inflicting serious bodily injury was used as a predicate offense to charge both habitual misdemeanor assault and habitual felon did not render an indictment defective; however, that same offense could not be used to determine defendant's prior record level at sentencing. State v. Sydnor, 246 N.C. App. 353, 782 S.E.2d 910 (2016).

Use of Prior Convictions. - Court of appeals erred in reversing defendant's sentence because the trial court properly elevated defendant's possession of marijuana offense to a Class I felony on the basis of his prior conviction under the North Carolina Controlled Substances Act and correctly punished that substantive Class I felony as a Class E felony due to defendant's habitual felon status. State v. Howell, 370 N.C. 647, 811 S.E.2d 570 (2018).

Cited in State v. Keyes, 56 N.C. App. 75, 286 S.E.2d 861 (1982); State v. Denning, 316 N.C. 523, 342 S.E.2d 855 (1986); State v. Bowens, 140 N.C. App. 217, 535 S.E.2d 870 (2000).


§ 14-7.3. Charge of habitual felon.

The district attorney, in his or her discretion, may charge a person as an habitual felon pursuant to this Article. An indictment which charges a person who is an habitual felon within the meaning of G.S. 14-7.1 with the commission of any felony under the laws of the State of North Carolina must, in order to sustain a conviction of habitual felon, also charge that said person is an habitual felon. The indictment charging the defendant as an habitual felon shall be separate from the indictment charging him with the principal felony. An indictment which charges a person with being an habitual felon must set forth the date that prior felony offenses were committed, the name of the state or other sovereign against whom said felony offenses were committed, the dates that pleas of guilty were entered to or convictions returned in said felony offenses, and the identity of the court wherein said pleas or convictions took place. No defendant charged with being an habitual felon in a bill of indictment shall be required to go to trial on said charge within 20 days of the finding of a true bill by the grand jury; provided, the defendant may waive this 20-day period.

History

(1967, c. 1241, s. 3; 2011-192, s. 3(c).)

Editor's Note. - Session Laws 2011-192, s. 3(e), provides: "This section becomes effective December 1, 2011, and applies to any offense that occurs on or after that date and that is the principal felony offense for a charge of either the status offenses of habitual breaking and entering or habitual felon. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions."

Session Laws 2011-192, s. 9, provides: "This act shall be known as 'The Justice Reinvestment Act of 2011'."

Effect of Amendments. - Session Laws 2011-192, s. 3(c), effective December 1, 2011, added the first sentence. For applicability, see Editor's note.

Legal Periodicals. - For note, "United States v. Bryant, Federal Habitual Offender Laws, and the Rights of Defendants in Tribal Courts: A Better Solution to Domestic Violence Exists," see 39 Campbell L. Rev. 205 (2017).

CASE NOTES

One basic purpose behind this Chapter is to provide notice to defendant that he is being prosecuted for some substantive felony as a recidivist. Failure to provide such notice where the State accepts a guilty plea on the substantive felony charge may well vitiate the plea itself as not being knowingly entered with full understanding of the consequences. State v. Allen, 292 N.C. 431, 233 S.E.2d 585 (1977); State v. Winstead, 78 N.C. App. 180, 336 S.E.2d 721 (1985).

Applicability of G.S. 14-7.4 to this Section. - G.S. 14-7.4 by its own terms specifically applies to conviction of habitual felons under this section. State v. Petty, 100 N.C. App. 465, 397 S.E.2d 337 (1990).

"Habitual felon" is a status, and once attained, such status is never lost. State v. Creason, 123 N.C. App. 495, 473 S.E.2d 771 (1996), aff'd, 346 N.C. 165, 484 S.E.2d 525 (1997).

Habitual Felon Indictment Ancillary to Indictment for Substantive Felony. - The Habitual Felons Act does not authorize an independent proceeding to determine defendant's status as a habitual felon separate from the prosecution of a predicate substantive felony; the habitual felon indictment is necessarily ancillary to the indictment for the substantive felony. State v. Cheek, 339 N.C. 725, 453 S.E.2d 862 (1995).

An habitual felon indictment must be supported by a valid indictment on a substantive charge. State v. Winstead, 78 N.C. App. 180, 336 S.E.2d 721 (1985).

The habitual felon indictment must be filed prior to the defendant's pleading in the substantive felony case. State v. Little, 126 N.C. App. 262, 484 S.E.2d 835 (1997).

Age or Date of Birth Not Required in Indictment. - Habitual offender indictment was not required to allege defendant's age or date or birth. State v. Sinclair, 191 N.C. App. 485, 663 S.E.2d 866 (2008).

Specific Reference to Predicate Felony Not Required. - Nothing in the plain wording of this section requires a specific reference to the predicate substantive felony in the habitual felon indictment. State v. Cheek, 339 N.C. 725, 453 S.E.2d 862 (1995).

Nothing in the plain wording of G.S. 14-7.3 requires a specific reference to the predicate substantive felony in an habitual felon indictment. The statute requires that the State give a defendant notice of the felonies on which it is relying to support the habitual felon charge; nowhere in the statute does it mention the predicate substantive felony or require it to be included in the indictment. State v. Smith, 160 N.C. App. 107, 584 S.E.2d 830 (2003).

Separate Indictment Charging Defendant as Habitual Felon Contemplated. - Properly construed, this Chapter clearly contemplates that when one who has already attained the status of an habitual felon is indicted for the commission of another felony, that person may then be also indicted in a separate bill as being an habitual felon. State v. Allen, 292 N.C. 431, 233 S.E.2d 585 (1977).

New Indictment Required. - State did not satisfy the requirements of G.S. 14-7.3, and the trial court lacked the authority to sentence defendant as an habitual felon for a later offense, where the State had not obtained a new habitual felon indictment, and defendant did not agree to waive the same and admit his status pursuant to a bill of information; while the State previously charged defendant with being an habitual felon, defendant was already convicted of the substantive felonies associated with those bills of information, and a new indictment was required. State v. Bradley, 175 N.C. App. 234, 623 S.E.2d 85 (2005), cert. denied, - N.C. - , 630 S.E.2d 189 (2006).

Valid Indictment Procured After Continuance. - Trial court did not lack subject matter jurisdiction to sentence defendant as a habitual felon based on the original habitual felon indictment being marked "not a true bill" by the grand jury foreman because the trial court retained jurisdiction at the moment it discovered the State's habitual felon indictment error; the State sought to rectify its mistake by requesting a continuance and procuring a valid indictment; and the trial court's grant of a continuance did not so offended the public sense of fair play that it constituted an abuse of discretion. State v. Hodge, - N.C. App. - , 840 S.E.2d 285 (2020).

Defendant Received Sufficient Notice That He Was Being Prosecuted as Habitual Felon. - Where a superseding habitual felon indictment was filed three months before defendant's trial, defendant received sufficient notice under G.S. 14-7.3 that he was being prosecuted as an habitual felon. State v. Cogdell, - N.C. App. - , - S.E.2d - (May 4, 2004).

Separate Indictments Valid. - This section does not require that the indictment charging defendant with the underlying felony must also charge that defendant is an habitual felon; where defendant was charged in one bill of indictment with felonious possession of cocaine, and in a separate bill of indictment with being an habitual felon, the indictments were not invalid. State v. Hodge, 112 N.C. App. 462, 436 S.E.2d 251 (1993).

A separate habitual felon indictment is not required for each substantive felony indictment. State v. Patton, 342 N.C. 633, 466 S.E.2d 708 (1996).

Defendant failed in his argument that the indictment for the principal felony could not support defendant's sentencing as a habitual felon because a separate indictment charged defendant with habitual felony status; the indictments were sufficient, as G.S. 14-7.3 did not require the indictment charging defendant with the underlying felony to also charge defendant as a habitual felon. State v. Peoples, 167 N.C. App. 63, 604 S.E.2d 321 (2004).

Defective Indictment. - Since it is clear from the indictment that prior to its return all the substantive felony proceedings upon which it is based had been prosecuted to completion and there was no pending felony prosecution to which the habitual felon proceeding could attach as an ancillary proceeding, the indictment on motion of the defendant should have been dismissed for failure of the bill to charge a cognizable offense. State v. Allen, 292 N.C. 431, 233 S.E.2d 585 (1977).

Where the habitual felon indictment did not refer to any underlying felony with which defendant was charged, defendant's indictment as an habitual offender was fatally flawed and the trial court erred in enhancing defendant's sentence on that basis. State v. Farrior, 117 N.C. App. 429, 451 S.E.2d 332 (1994), cert. granted, 340 N.C. 116, 455 S.E.2d 663 (1995).

State of North Carolina did not meet the requirements of the habitual felon indictment because the State did not provide an offense date for the crime the State convicted defendant for committing. Therefore, defendant's habitual felon indictment, defective on its face, had to be vacated, and the case remanded for a new sentencing hearing. State v. Langley, 254 N.C. App. 186, 803 S.E.2d 166 (2017).

Defendant's habitual felon indictment was fatally defective where the indictment did not allege an offense date for the crime of which defendant was convicted, i.e., common law robbery. State v. Forte, 260 N.C. App. 245, 817 S.E.2d 764 (2018), review denied, 371 N.C. 787, 820 S.E.2d 806, 2018 N.C. LEXIS 1052 (2018).

Trivial Amendment to Sufficient Indictment Irrelevant. - The amending of three indictments to include the words "in North Carolina" was irrelevant where the original indictment itself was not flawed and thus any attempt to correct a perceived flaw was harmless for the amendment could not have in any way prejudiced defendant. State v. Montford, 137 N.C. App. 495, 529 S.E.2d 247 (2000).

Trial court did not err in allowing, pursuant to G.S. 15A-923(e), the State of North Carolina to amend a habitual felon indictment under G.S. 14-7.3, by expanding the date of the commission of a prior felony offense because the discrepancy between the indictment and the proof at trial as to the date of defendant's prior offense was not a fatal variance. State v. Taylor, 203 N.C. App. 448, 691 S.E.2d 755 (2010), cert. dismissed 366 N.C. 408, 736 S.E.2d 180, 2012 N.C. LEXIS 1170 (2012).

New Indictment. - Where there had been no entry of judgment or sentence as to the substantive underlying felony, until judgment was entered upon defendant's conviction of that substantive underlying felony, there remained a pending, uncompleted felony prosecution to which a new habitual felon indictment could attach. State v. Oakes, 113 N.C. App. 332, 438 S.E.2d 477, cert. denied, 336 N.C. 76, 445 S.E.2d 43 (1994).

Charges in Separate Counts of Same Indictment. - Although defendant was charged with the underlying felony, common law robbery, and with being an habitual felon, in separate counts of the same bill of indictment rather than in separate bills of indictment this procedure did not violate this section. State v. Young, 120 N.C. App. 456, 462 S.E.2d 683 (1995).

The statute does not require that the indictment charging a defendant with habitual felon status be contained in a separate bill of indictment. State v. Young, 120 N.C. App. 456, 462 S.E.2d 683 (1995).

Denial of Motion to Quash Indictment. - Where defendant had previously stipulated to a prior conviction and did not argue a lack of notice of the hearing at trial, the state's requested corrections to the indictment as to the date and county of the prior conviction did not constitute an amendment; thus, the trial court did not err in denying defendant's motion to quash. State v. Lewis, 162 N.C. App. 277, 590 S.E.2d 318 (2004).

Indictment Held Sufficient. - Indictment charging defendant with being an habitual felon which expressly set forth each of the underlying felonies of which defendant was charged and convicted as being in violation of an enumerated "North Carolina General Statute," contained a sufficient statement of the name of the state or sovereign against whom the felonies were committed to comport with the requirements of this section. State v. Williams, 99 N.C. App. 333, 393 S.E.2d 156 (1990).

A habitual felon indictment citing the defendant's conviction for "the felony of breaking and entering buildings in violation of N.C.G.S. [G.S.] 14-54" was sufficient because the indictment clearly stated defendant had been convicted of felony breaking and entering, contained the date the felony was committed, the court in which he was convicted, the number assigned to the case, and the date of the conviction and, therefore, provided him with adequate notice of the underlying felony. State v. Briggs, 137 N.C. App. 125, 526 S.E.2d 678 (2000).

Habitual felon indictment complied with this section. State v. Smith, 112 N.C. App. 512, 436 S.E.2d 160 (1993).

Defendant's convictions of robbery with a firearm, G.S. 14-87(a), and having attained the status of habitual felon, G.S. 14-7.3, were affirmed; the State was only required to prove that defendant claimed that he possessed a firearm during his robberies of two stores. State v. Jarrett, 167 N.C. App. 336, 607 S.E.2d 661 (2004), cert. denied, 359 N.C. 324, 611 S.E.2d 840 (2005).

Defendant contended that because the specific name of the controlled substance was not alleged in the indictment, the indictment was not sufficient to charge habitual felon; however, the habitual felon indictment alleging a prior conviction for felony possession with intent to manufacture, sell, or deliver a Schedule I controlled substance, in addition to two other felony convictions, was sufficient notice under North Carolina and case law. Additionally, because there was no defect in the indictment, the trial court had jurisdiction to sentence defendant as an habitual felon under G.S. 14-7.1 and G.S. 14-7.3. State v. McIlwaine, 169 N.C. App. 397, 610 S.E.2d 399 (2005).

Where defendant did not dispute that his habitual felony indictment included each element specified in G.S. 14-7.3, the indictment was facially valid; defendant's claim that there was a variance between the indictment and the proof offered in support of the indictment should have been raised by a motion to dismiss and was waived by his guilty plea. State v. McGee, 175 N.C. App. 586, 623 S.E.2d 782 (2006), review denied, appeal dismissed, 360 N.C. 542, 634 S.E.2d 891 (2006).

Although there was a discrepancy as to the date of defendant's prior felony offense in the indictment and the judgment which was entered into evidence, defendant's possession of a firearm by a felon and habitual felon indictments were sufficient under G.S. 14-415.1(c) and G.S. 14-7.3 because the discrepancy was not material and did not affect a substantial right. Furthermore, the discrepancy in the indictments and the proof at trial was not a fatal variance because the date on which defendant committed the prior felony was not an essential element of either offense. State v. Taylor, 203 N.C. App. 448, 691 S.E.2d 755 (2010), cert. dismissed 366 N.C. 408, 736 S.E.2d 180, 2012 N.C. LEXIS 1170 (2012).

Habitual offender indictment returned against defendant contained all of the information required by this section and provided defendant with adequate notice of the bases for the State's contention that defendant attained habitual felon status, alleging that the three prior felony offenses upon which the State relied were committed on three specified dates, they were committed against the State of North Carolina, and defendant was convicted of those offenses in the Superior Court, Pitt County. State v. Langley, 371 N.C. 389, 817 S.E.2d 191 (2018).

Running of 20-Day Period. - Under this section, the 20-day period runs from the time the grand jury returns an indictment on the habitual felon charge. State v. Winstead, 78 N.C. App. 180, 336 S.E.2d 721 (1985).

Use of Prior Convictions. - Defendant was erroneously sentenced as a habitual offender because one of the prior convictions relied upon was a conviction from New Jersey for an offense that was not a felony in New Jersey. State v. Moncree, 188 N.C. App. 221, 655 S.E.2d 464 (2008).

Reference to Predicate Felony Not Made. - Trial court erred in instructing the jury that it could find defendant was a habitual offender based on his prior conviction for selling cocaine where the indictment did not allege that conviction as a predicate offense. State v. Jefferies, 243 N.C. App. 455, 776 S.E.2d 872 (2015).

Collateral Attack. - Defendant cannot collaterally attack a prior conviction which is the basis of a habitual felon charge. State v. Creason, 123 N.C. App. 495, 473 S.E.2d 771 (1996), aff'd, 346 N.C. 165, 484 S.E.2d 525 (1997).

Defendant's collateral attack questioning the validity of his original conviction for the habitual felon sentence was impermissible under G.S. 14-7.3. State v. Flemming, 171 N.C. App. 413, 615 S.E.2d 310 (2005).

Scope of Review. - When appealing the use of a prior conviction as a partial basis for an habitual felon indictment, inquiries are permissible only to determine whether the State gave defendant proper notice that he was being prosecuted for some substantive felony as a recidivist pursuant to this section. State v. Creason, 123 N.C. App. 495, 473 S.E.2d 771 (1996), aff'd, 346 N.C. 165, 484 S.E.2d 525 (1997).

Arraignment Not Proper. - Court erred in failing to dismiss the habitual misdemeanor assault charge where defendant was not properly arraigned; the State introduced no evidence of five prior convictions and failed to present evidence of an essential element of the charge requiring that the conviction for habitual misdemeanor assault be vacated. State v. Burch, 160 N.C. App. 394, 585 S.E.2d 461 (2003).

Trial court lacked jurisdiction over an habitual felon charge because, at the time the habitual felon indictment was returned, the jury bribery crimes for which defendant was tried and found guilty had not yet occurred. The habitual felon indictment was therefore not ancillary to the jury bribery charges. State v. Ross, 221 N.C. App. 185, 727 S.E.2d 370 (2012).

Applied in State v. Todd, 313 N.C. 110, 326 S.E.2d 249 (1985); State v. Netcliff, 116 N.C. App. 396, 448 S.E.2d 311 (1994), overruled on other grounds, State v. Patton, 342 N.C. 633, 466 S.E.2d 708 (1996); State v. Taylor, 156 N.C. App. 172, 576 S.E.2d 114 (2003); State v. Adams, 156 N.C. App. 318, 576 S.E.2d 377, cert. denied, 357 N.C. 166, 580 S.E.2d 698 (2003); State v. May, 159 N.C. App. 159, 583 S.E.2d 302 (2003); State v. Sydnor, 246 N.C. App. 353, 782 S.E.2d 910 (2016).

Cited in State v. Keyes, 56 N.C. App. 75, 286 S.E.2d 861 (1982); State v. Denning, 316 N.C. 523, 342 S.E.2d 855 (1986); State v. Davis, 123 N.C. App. 240, 472 S.E.2d 392 (1996); State v. Mason, 126 N.C. App. 318, 484 S.E.2d 818 (1997), cert denied, 354 N.C. 72, 553 S.E.2d 208 (2001); State v. Bowens, 140 N.C. App. 217, 535 S.E.2d 870 (2000); State v. Scott, 167 N.C. App. 783, 607 S.E.2d 10 (2005); State v. McBride, 173 N.C. App. 101, 618 S.E.2d 754 (2005); State v. Coltrane, 188 N.C. App. 498, 656 S.E.2d 322 (2008), review denied, 362 N.C. 476, 666 S.E.2d 760 (2008).


§ 14-7.4. Evidence of prior convictions of felony offenses.

In all cases where a person is charged under the provisions of this Article with being an habitual felon, the record or records of prior convictions of felony offenses shall be admissible in evidence, but only for the purpose of proving that said person has been convicted of former felony offenses. A prior conviction may be proved by stipulation of the parties or by the original or a certified copy of the court record of the prior conviction. The original or certified copy of the court record, bearing the same name as that by which the defendant is charged, shall be prima facie evidence that the defendant named therein is the same as the defendant before the court, and shall be prima facie evidence of the facts set out therein.

History

(1967, c. 1241, s. 4; 1981, c. 179, s. 12.)

CASE NOTES

Applicability. - This section by its own terms specifically applies to conviction of habitual felons under G.S. 14-7.3. State v. Petty, 100 N.C. App. 465, 397 S.E.2d 337 (1990).

The "prima facie evidence" provisions of this section do not unconstitutionally shift the burden of proof to the defendant on the essential element of identity but merely create a presumption that allows the jury to decide whether the elements of the crime have been proven beyond a reasonable doubt. State v. Hairston, 137 N.C. App. 352, 528 S.E.2d 29 (2000).

Statute is Permissive. - Plain reading of G.S. 14-7.4 and the habitual felon jurisprudence makes clear that the statute is permissive and does not exclude methods of proof that are not specifically delineated in the Habitual Offender Act. State v. Waycaster, 260 N.C. App. 684, 818 S.E.2d 189 (2018).

Proof of Prior Convictions. - Use of true copies of the court record to prove prior convictions under the Habitual Felons Act, as opposed to certified copies, was not improper. State v. Gant, 153 N.C. App. 136, 568 S.E.2d 909 (2002), cert. denied, 356 N.C. 440, 572 S.E.2d 792 (2002).

Where defendant, in pleading nolo contendere, stipulated to three of defendant's eight prior convictions, but the State failed to prove any of the remaining convictions as required by G.S. 15A-1340.14(f) and G.S. 14-7.4, the trial court erred under G.S. 15A-1340.13(b) and G.S. 15A-1340.14(a) in sentencing defendant as a prior record level III offender based on prior convictions that were not proven at trial; the sentence, despite being agreed to by defendant, had to be authorized by G.S. 15A-1340.17. State v. Quick, 170 N.C. App. 166, 611 S.E.2d 864 (2005).

Defendant's collateral attack questioning the validity of his original conviction for the habitual felon sentence was impermissible under G.S. 14-7.3. State v. Flemming, 171 N.C. App. 413, 615 S.E.2d 310 (2005).

Admission of exhibits containing both the dates of defendant's prior offenses and resulting convictions for three felonies were properly admitted into evidence and supported defendant's conviction as an habitual offender. State v. McBride, 173 N.C. App. 101, 618 S.E.2d 754 (2005).

State presented substantial evidence that defendant had attained the status of habitual felon as each of the three judgments introduced by the State listed the name of defendant as the same name by which defendant was charged in the latest indictment and defendant introduced no evidence to rebut that prima facie showing by the State. State v. Tyson, 189 N.C. App. 408, 658 S.E.2d 285 (2008).

Printouts from the Automated Criminal/Infraction System (ACIS) database were admissible evidence to prove a prior felony under the Habitual Felon Act and, thus, were not barred by the best evidence rule because the clerk of court, who maintained the physical court records, testified that the printout was a certified true copy of the information in ACIS; the best evidence rule does not bar the admission of the printout merely because the original judgment was unaccounted for at trial. State v. Waycaster, 260 N.C. App. 684, 818 S.E.2d 189 (2018).

Notes Need Not Be in Identical Order. - Requirement that document bear "same name as that by which the defendant is charged" does not mean that names must be identical in order for document to be prima facie evidence that defendant named in document is same as defendant before court. State v. Petty, 100 N.C. App. 465, 397 S.E.2d 337 (1990).

A faxed certified copy of a criminal record was admissible under this section to prove defendant's status as an habitual felon; the exhibit's reliability was bolstered below by defendant's own admission under oath that he indeed was convicted of the crimes listed therein. State v. Wall, 141 N.C. App. 529, 539 S.E.2d 692 (2000), cert. denied, - N.C. - , 566 S.E.2d 480 (2002).

Facsimile copy of judgment and probation order were sufficient as proof of defendant's third felony under G.S. 14-7.4. State v. Brewington, 170 N.C. App. 264, 612 S.E.2d 648 (2005), cert. denied, 360 N.C. 67, 621 S.E.2d 881 (2005).

Names Held to Be "Same
Name". - Names "Martin Bernard Petty" and "Martin Petty" are the "same name" for purposes of this section. State v. Petty, 100 N.C. App. 465, 397 S.E.2d 337 (1990).

Where the documents introduced to prove defendant's prior conviction for breaking and entering were all identified as accurate copies of the originals, and each of the documents indicated that defendant's name was "Michael Hodge," for purposes of this section "Michael Hodge" and "William Michael Hodge" were the same name, and the documents at issue therefore constituted prima facie evidence that the defendant named in the prior case was the same as the defendant before the court. State v. Hodge, 112 N.C. App. 462, 436 S.E.2d 251 (1993).

Age Discrepancy. - Any discrepancy between actual age of defendant at time of conviction and his age as reflected on record of conviction goes to weight of evidence and not its admissibility. State v. Petty, 100 N.C. App. 465, 397 S.E.2d 337 (1990).

Nolo Contendere Plea Entered Prior to Enactment of Chapter 15A. - Use of conviction resulting from nolo contendere plea entered prior to enactment of G.S. 15A-1022 as one of three prior felony convictions required by G.S. 14-7.1 to support charge of being habitual felon was improper, as rule at that time was that nolo contendere plea was neither admission nor adjudication of guilt. State v. Petty, 100 N.C. App. 465, 397 S.E.2d 337 (1990).

Failure to Redact Additional Felony Conviction. - Trial court's failure to redact an additional felony conviction at defendant's habitual felon proceeding was not erroneous, as the trial court instructed the jury to limit its consideration of the evidence to three specific felony convictions only, for which certified copies of the prior judgments were admitted. State v. Blakney, 233 N.C. App. 516, 756 S.E.2d 844 (2014).

The trial court erred by sentencing the defendant as an habitual felon where the issue was not submitted to the jury and the record did not show that he pleaded guilty to being an habitual felon; a stipulation, in the absence of an inquiry by the trial court to establish a record of a guilty plea, is not tantamount to a guilty plea. State v. Gilmore, 142 N.C. App. 465, 542 S.E.2d 694 (2001).

Plain Error Not Found. - It was not plain error for the trial court to admit copies of defendant's previous judgments during his habitual felon proceedings because defendant did not challenge the authenticity of the certified judgment sheets or the veracity of the convictions. State v. McNeil, 165 N.C. App. 777, 600 S.E.2d 31 (2004).

Applied in State v. Wilson, 139 N.C. App. 544, 533 S.E.2d 865, cert. denied, 353 N.C. 279, 546 S.E.2d 395 (2000).

Cited in State v. Denning, 316 N.C. 523, 342 S.E.2d 855 (1986); State v. Ross, 207 N.C. App. 379, 700 S.E.2d 412 (2010), review denied 717 S.E.2d 377, 2011 N.C. LEXIS 666 (N.C. 2011).


§ 14-7.5. Verdict and judgment.

When an indictment charges an habitual felon with a felony as above provided and an indictment also charges that said person is an habitual felon as provided herein, the defendant shall be tried for the principal felony as provided by law. The indictment that the person is an habitual felon shall not be revealed to the jury unless the jury shall find that the defendant is guilty of the principal felony or other felony with which he is charged. If the jury finds the defendant guilty of a felony, the bill of indictment charging the defendant as an habitual felon may be presented to the same jury. Except that the same jury may be used, the proceedings shall be as if the issue of habitual felon were a principal charge. If the jury finds that the defendant is an habitual felon, the trial judge shall enter judgment according to the provisions of this Article. If the jury finds that the defendant is not an habitual felon, the trial judge shall pronounce judgment on the principal felony or felonies as provided by law.

History

(1967, c. 1241, s. 5.)

Legal Periodicals. - For survey of 1977 criminal law, see 56 N.C.L. Rev. 965 (1978).

CASE NOTES

The proceeding by which the State seeks to establish that defendant is an habitual felon is necessarily ancillary to a pending prosecution for the "principal," or substantive, felony. The Chapter does not authorize a proceeding independent from the prosecution of some substantive felony for the sole purpose of establishing a defendant's status as an habitual felon. State v. Allen, 292 N.C. 431, 233 S.E.2d 585 (1977).

Trial court erred in denying defendant's request to inform the jury during the first phase of the trial that, if convicted, defendant was subject to punishment as a class C felon due to defendant's status as an habitual felon; while defendant had the right under G.S. 7A-97 to inform the jury of the punishment that could be imposed upon conviction of the crime for which defendant was being tried, this did not permit defendant to inform the jury of the maximum sentence as a result of an habitual felon adjudication. and G.S. 14-7.5, providing that an habitual felon trial was to be held separate from the principal felony trial, precluded instruction on the habitual offender penalty. State v. Dammons, 159 N.C. App. 284, 583 S.E.2d 606 (2003), review denied, 357 N.C. 579, 589 S.E.2d 133 (2003), cert. denied, 541 U.S. 951, 124 S. Ct. 1691, 158 L. Ed. 2d 382 (2004).

A defendant charged as a habitual felon is not defending himself against the predicate substantive felony, but against a charge that he has at least three prior felony convictions; the trial for the substantive felony is held first, and only after defendant is convicted of the substantive felony is the habitual felon indictment revealed to, and considered by, the jury. State v. Cheek, 339 N.C. 725, 453 S.E.2d 862 (1995).

Habitual Offender Statute Attaches Upon Third Conviction. - Defendant became an habitual offender when he was convicted of the third offense; however the jury's role in convicting the defendant as an habitual offender was still essential since it assured that the State had proven the fact of the three qualifying convictions to the jury's satisfaction. State v. Brown, 146 N.C. App. 590, 553 S.E.2d 428 (2001).

Error in Sentencing Defendant as Habitual Felon. - Trial court erred by sentencing defendant as a habitual felon in violation of G.S. 14-7.5 since the record did not show that his status as a habitual felon was submitted to the jury or that he entered a plea of guilty under G.S. 15A-1022 to having the status of a habitual felon. State v. Jester, 249 N.C. App. 101, 790 S.E.2d 368 (2016).

This section applies only to the indictment and not to the erroneous admission of oral evidence on cross-examination. State v. Thompson, 141 N.C. App. 698, 543 S.E.2d 160 (2001), cert. denied, 353 N.C. 396, 548 S.E.2d 157 (2001).

This Section Applies Only to the Indictment and Not to the Erroneous Admission of Oral Evidence. - Where the State during cross-examination asked defendant about his prior conviction for being a habitual felon, G.S. 14-7.5 was not violated because the State's questions did not refer to a pending habitual felon indictment against defendant but simply served to elicit information on defendant's criminal record. State v. Owens, 160 N.C. App. 494, 586 S.E.2d 519 (2003).

Principal Felony Indictment Need Not Mention Recidivist Status. - The legislature did not intend the first indictment notifying the defendant of the substantive charge against him to include a mention of the defendant's recidivist status. State v. Keyes, 56 N.C. App. 75, 286 S.E.2d 861 (1982).

This section does not give criminal defendant the right to inform the jury, during a principal felony trial, of the possible maximum sentence which might be imposed upon him at an habitual felon adjudication if he is found guilty of the principal offenses. State v. Wilson, 139 N.C. App. 544, 533 S.E.2d 865, cert. denied, 353 N.C. 279, 546 S.E.2d 395 (2000).

Jury Need Not Be Re-empaneled. - When, as contemplated by this section, the same jury considers both the principal felony and the question of defendant's recidivism, it is not necessary to re-empanel a jury once that jury has been properly empaneled pursuant to G.S. 15A-1216. State v. Todd, 313 N.C. 110, 326 S.E.2d 249 (1985).

Pending, Uncompleted Felony Conviction Required. - Where there had been no entry of judgment or sentence as to the substantive underlying felony, until judgment was entered upon defendant's conviction of that substantive underlying felony, there remained a pending, uncompleted felony prosecution to which a new habitual felon indictment could attach. State v. Oakes, 113 N.C. App. 332, 438 S.E.2d 477, cert. denied, 336 N.C. 76, 445 S.E.2d 43 (1994).

New Habitual Felon Indictment Did Not Result in Former Jeopardy. - Although habitual felon indictment was joined for trial with one underlying charge, the indictment was quashed before defendant was placed on trial upon the charge that he was an habitual felon. The subsequent indictment alleging defendant's status as an habitual felon was still part of, and ancillary to, the prosecution of defendant for an underlying felony, for which no judgment had been entered, and there was no former jeopardy. State v. Oakes, 113 N.C. App. 332, 438 S.E.2d 477, cert. denied, 336 N.C. 76, 445 S.E.2d 43 (1994).

The trial court erred by sentencing the defendant as an habitual felon where the issue was not submitted to the jury and the record did not show that he pleaded guilty to being an habitual felon; a stipulation, in the absence of an inquiry by the trial court to establish a record of a guilty plea, is not tantamount to a guilty plea. State v. Gilmore, 142 N.C. App. 465, 542 S.E.2d 694 (2001).

Trial court erred in finding defendant guilty of being a habitual felon based on defendant's stipulation to his status as such, where the court failed to establish a record showing that defendant's stipulation was a guilty plea to the habitual felon charge. State v. Edwards, 150 N.C. App. 544, 563 S.E.2d 288 (2002).

Trial court erred in sentencing defendant as an habitual felon because the issue was not submitted to the jury, and the record did not establish that defendant pled to that charge; defendant's mere stipulation to predicate felonies was insufficient. State v. Wilkins, 225 N.C. App. 492, 737 S.E.2d 791 (2013).

Motion to Dismiss Properly Denied. - Defendant's motion to dismiss a habitual felon charge was properly denied because, during defendant's trial for failing to register as sex offender, the State introduced evidence of defendant's conviction in 1987 for first-degree sexual offense and during habitual felon phase, the State introduced evidence of defendant's convictions for two other felonies; in a habitual felon proceeding, there was no need to reintroduce evidence from hearing for principal offense, and the introduction of the three felonies was enough for jury to decide that defendant had attained the status of habitual felon. State v. Hoskins, 225 N.C. App. 177, 736 S.E.2d 631 (2013).

Prejudicial Error from Testimony on Habitual Status. - Defendant was entitled to a new trial because the trial court's failure to intervene and instruct the jury to disregard evidence of defendant's habitual felon indictment was prejudicial error following a police officer's interrupted testimony that defendant had "an outstanding grand jury indictment for a habitual" had the effect of revealing to the jury that defendant faced an indictment as a habitual offender. State v. Rogers, 236 N.C. App. 201, 762 S.E.2d 511 (2014).

Applied in State v. Aldridge, 67 N.C. App. 655, 314 S.E.2d 139 (1984); State v. Murphy, 193 N.C. App. 236, 666 S.E.2d 880 (2008); State v. Fox, 216 N.C. App. 144, 721 S.E.2d 673 (2011).

Cited in State v. Denning, 316 N.C. 523, 342 S.E.2d 855 (1986); State v. Sullivan, 111 N.C. App. 441, 432 S.E.2d 376 (1993); State v. Patton, 342 N.C. 633, 466 S.E.2d 708 (1996); State v. Ezell, 159 N.C. App. 103, 582 S.E.2d 679 (2003); State v. Burch, 160 N.C. App. 394, 585 S.E.2d 461 (2003); State v. McBride, 173 N.C. App. 101, 618 S.E.2d 754 (2005); State v. Massey, 195 N.C. App. 423, 672 S.E.2d 696 (2009); State v. Harris, 219 N.C. App. 590, 724 S.E.2d 633 (2012); State v. Waycaster, 260 N.C. App. 684, 818 S.E.2d 189 (2018).


§ 14-7.6. Sentencing of habitual felons.

When an habitual felon as defined in this Article commits any felony under the laws of the State of North Carolina, the felon must, upon conviction or plea of guilty under indictment as provided in this Article (except where the felon has been sentenced as a Class A, B1, or B2 felon) be sentenced at a felony class level that is four classes higher than the principal felony for which the person was convicted; but under no circumstances shall an habitual felon be sentenced at a level higher than a Class C felony. In determining the prior record level, convictions used to establish a person's status as an habitual felon shall not be used. Sentences imposed under this Article shall run consecutively with and shall commence at the expiration of any sentence being served by the person sentenced under this section.

History

(1967, c. 1241, s. 6; 1981, c. 179, s. 13; 1993, c. 538, s. 9; 1994, Ex. Sess., c. 22, ss. 15, 16; c. 24, s. 14(b); 1993 (Reg. Sess., 1994), c. 767, s. 16; 2011-192, s. 3(d).)

Editor's Note. - Session Laws 2011-192, s. 3(e), provides: "This section becomes effective December 1, 2011, and applies to any offense that occurs on or after that date and that is the principal felony offense for a charge of either the status offenses of habitual breaking and entering or habitual felon. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions."

Session Laws 2011-192, s. 9, provides: "This act shall be known as 'The Justice Reinvestment Act of 2011'."

Effect of Amendments. - Session Laws 2011-192, s. 3(d), effective December 1, 2011, in the first sentence, substituted the language beginning "be sentenced at a felony class level" through to the end for "be sentenced as a Class C felon." For applicability, see Editor's note.

Legal Periodicals. - For comment discussing the North Carolina Fair Sentencing Act, see 60 N.C.L. Rev. 631 (1982).

For note, "Ramifications of the 1997 DWI/Felony Prior Record Level Amendment to the Structured Sentencing Act: State of North Carolina v. Tanya Watts Gentry," see 22 Campbell L. Rev. 211 (1999).

CASE NOTES

Being an habitual felon is not a crime, but is a status the attaining of which subjects a person thereafter convicted of a crime to an increased punishment for that crime. The status itself, standing alone, will not support a criminal sentence. State v. Allen, 292 N.C. 431, 233 S.E.2d 585 (1977).

Being an habitual felon is not a substantive crime. State v. Thomas, 82 N.C. App. 682, 347 S.E.2d 494 (1986), cert. denied, 320 N.C. 637, 360 S.E.2d 102 (1987).

Being an habitual felon is not a crime but is a status. The status itself, standing alone, will not support a criminal sentence, and a court may not treat the violation of the Habitual Felon Act as a substantive offense. State v. Penland, 89 N.C. App. 350, 365 S.E.2d 721 (1988).

Defendant was sentenced only once as required by the habitual felon statute, G.S. 14-7.6; he was not convicted of being an habitual felon, since the status being an habitual felon was not a separate offense, rather his status as an habitual felon enhanced his conviction of the crime attempting to obtain property by false pretenses. State v. Ledwell, 171 N.C. App. 314, 614 S.E.2d 562 (2005).

The only reason for establishing that an accused is an habitual felon is to enhance the punishment which would otherwise be appropriate for the substantive felony which he has allegedly committed while in such a status. The effect of such a proceeding is to enhance the punishment of those found guilty of crime who are also shown to have been convicted of other crimes in the past. State v. Allen, 292 N.C. 431, 233 S.E.2d 585 (1977).

The only reason for establishing that an accused is an habitual felon is to enhance the punishment which would otherwise be appropriate for the substantive felony which he has allegedly committed while in such a status. State v. Thomas, 82 N.C. App. 682, 347 S.E.2d 494 (1986), cert. denied, 320 N.C. 637, 360 S.E.2d 102 (1987); State v. Penland, 89 N.C. App. 350, 365 S.E.2d 721 (1988).

Rule of lenity, requiring that an ambiguous statute not be interpreted to impose a penalty on an individual which had not been clearly stated by the legislature, did not apply to the Habitual Felon Act, G.S. 14-7.6, because there was no ambiguity in that statute's directive as to the use of prior convictions. State v. Cates, 154 N.C. App. 737, 573 S.E.2d 208 (2002), cert. denied, 356 N.C. 682, 577 S.E.2d 897 (2003), cert. denied, 540 U.S. 846, 124 S. Ct. 121, 157 L. Ed. 2d 84 (2003).

Basis of Sentencing Habitual Felon. - In sentencing a habitual felon, the duration of the sentence is based not only on the defendant's most recent offense, but on his past criminal conduct as well. State v. Aldridge, 76 N.C. App. 638, 334 S.E.2d 107 (1985).

In the context of a defendant convicted of drug trafficking and subject to enhanced sentencing as an habitual felon, the two statutes complement each other and address different means of enhancing punishment; in essence, a drug trafficker who is not an habitual felon is subject to enhanced sentencing pursuant to G.S. 90-95(h)(4), while a drug trafficker who has also attained habitual felon status is subject to even more enhanced sentencing pursuant to G.S. 14-7.6. State v. Eaton, 210 N.C. App. 142, 707 S.E.2d 642 (2011), review denied, 365 N.C. 202, 710 S.E.2d 25, 2011 N.C. LEXIS 463 (N.C. 2011).

Use of Prior Convictions. - Defendant's prior convictions will either serve to establish his status as an habitual felon pursuant to G.S. 15-7.1 or to increase his prior record level pursuant to G.S. 15A-1340.14(b)(1-5); the existence of prior convictions may not be used to increase a defendant's sentence pursuant to both provisions at the same time. State v. Bethea, 122 N.C. App. 623, 471 S.E.2d 430 (1996).

By using the defendant's five felony convictions in the habitual felon indictment, the State was precluded from using the same five convictions to increase defendant's prior record level points; accordingly, the trial court erred in using one conviction used to establish defendant's habitual felon status to enhance defendant's sentence. State v. Lee, 150 N.C. App. 701, 564 S.E.2d 597 (2002), cert. denied, 356 N.C. 171, 568 S.E.2d 856 (2002).

Legislature did not intend to limit a prosecutor's discretion in choosing which of defendant's prior felony convictions to base an habitual offender prosecution on, so defendant's argument that the prosecutor chose to base the prosecution on defendant's less serious felonies, so that defendant's more serious felonies would be available for purposes of enhancing defendant's sentence, was overruled. State v. Cates, 154 N.C. App. 737, 573 S.E.2d 208 (2002), cert. denied, 356 N.C. 682, 577 S.E.2d 897 (2003), cert. denied, 540 U.S. 846, 124 S. Ct. 121, 157 L. Ed. 2d 84 (2003).

State, in attempting to prove defendant's prior record level, incorrectly relied on defendant's same two cocaine possession convictions that were also used to establish his habitual felon status. State v. Miller, 168 N.C. App. 572, 608 S.E.2d 565 (2005).

State's use of defendant's prior misdemeanor convictions to enhance a sentence already enhanced under the Habitual Felon Act, G.S. 14-7.1 et seq., did not constitute cruel and unusual punishment. State v. Hall, 174 N.C. App. 353, 620 S.E.2d 723 (2005).

Trial court's use of defendant's prior driving while impaired convictions in determining defendant's sentence as a Level II offender did not violate G.S. 15A-1340.16(d) as defendant's prior convictions were not used as aggravating factors; instead, the trial court added points to defendant's prior record pursuant to G.S. 15A-1340.14, which in contrast to using the same prior convictions to establish a person's status as an habitual felon, was not expressly prohibited. Further, the use of the same prior convictions introduced by the State as evidence of malice during trial to increase defendant's prior record level at sentencing did not violate the plain language of G.S. 15A-1340.01. State v. Bauberger, 176 N.C. App. 465, 626 S.E.2d 700 (2006).

Trial court properly assigned one prior conviction point in sentencing because attempted felonious larceny, which was the present offense, was a lesser included offense of felonious larceny, which was a prior conviction, and thus all of the elements of the present offense were included in the prior conviction for G.S. 15A-1340.14(b)(6) purposes; further, G.S. 14-72 related solely to punishment for the separate crime of larceny, did not change the nature of the crime, and the elements remained the same. Thus, for purposes of G.S. 15A-1340.14(b)(6), it did not matter under what provision of G.S. 14-72 the prior larceny convictions were established. State v. Ford, 195 N.C. App. 321, 672 S.E.2d 689 (2009), review denied, 363 N.C. 659, 686 S.E.2d 680 (2009).

Where, after defendant was convicted of obtaining property by false pretenses and financial card fraud, he agreed to enter a plea agreement to 68 additional charged felonies and four misdemeanors, he was erroneously sentenced at a prior record level VI, because the record established that he should have been sentenced at a prior record level V, since under G.S. 14-7.6, defendant's trafficking in marijuana conviction should not have been included for one point on the prior record worksheet. State v. Flint, 199 N.C. App. 709, 682 S.E.2d 443 (2009).

Trial court did not err in using defendant's 1988 felonious breaking or entering conviction for the purpose of both supporting the possession of a firearm by a felon charge, G.S. 14-415.1, and calculating defendant's prior record level because the possession of a firearm by a felon charge was a separate substantive offense from the prior felony conviction upon which defendant's status as a felon was based and, as such, no "double counting" occurred in determining defendant's prior record under G.S. 14-7.6. State v. Best, 214 N.C. App. 39, 713 S.E.2d 556 (2011), review denied, 718 S.E.2d 397, 2011 N.C. LEXIS 935 (2011).

Trial court did not err in determining that defendant was a prior record level IV offender; after the trial court used one of the 9 January 2002 convictions for habitual felon determination, it could still use the other 9 January 2002 conviction to calculate defendant's prior record level. State v. Williams, 215 N.C. App. 412, 715 S.E.2d 553 (2011).

Trial court erred by sentencing defendant as a prior record level (PRL) VI with 21 points because the court determined that he should have been assigned 17 points which qualified him to be sentenced as a PRL V offender, as the court found that only 11 of defendant's prior convictions were eligible for calculating his PRL rather than the 47 convictions used by the trial court. The court disregarded the three convictions used by the jury to convict defendant of obtaining habitual felon status, he received many of his convictions in groups on the same day or session of court, five were irrelevant misdemeanor convictions, and because the State put on no evidence to support a comparison of any of defendant's out-of-state convictions to North Carolina offenses. State v. Glover, - N.C. App. - , 833 S.E.2d 203 (2019).

Habitual Felon and Habitual Misdemeanor Assault. - Fact that the offense of felony assault inflicting serious bodily injury was used as a predicate offense to charge both habitual misdemeanor assault and habitual felon did not render an indictment defective; however, that same offense could not be used to determine defendant's prior record level at sentencing. State v. Sydnor, 246 N.C. App. 353, 782 S.E.2d 910 (2016).

No Contest Plea. - "Conviction" within the context of this section includes a judgment entered upon a no contest plea, as long as the statutory procedures in G.S. 15A-1022 for entering a no contest plea are followed by the trial court in entering the plea. State v. Jones, 151 N.C. App. 317, 566 S.E.2d 112 (2002).

Prosecutor's Discretion Whether to Charge Defendant as Habitual Felon. - Because a prosecutor had the discretion whether to prosecute defendant as a habitual felon or not and had the authority to dismiss charges against defendant at any stage of the proceedings under G.S. 15A-931(a), the prosecutor could only seek habitual felon status under G.S. 14-7.2 and G.S. 14-7.6 as to a possession of a firearm charge and not as to attempted robbery and robbery charges. State v. Murphy, 193 N.C. App. 236, 666 S.E.2d 880 (2008).

Because defendant pled guilty to having attained the status of an habitual felon, he waived all defenses other than the sufficiency of the indictment, and he did not challenge the sufficiency of the indictment; he was not allowed to attack the validity of his underlying convictions. State v. Ford, 195 N.C. App. 321, 672 S.E.2d 689 (2009), review denied, 363 N.C. 659, 686 S.E.2d 680 (2009).

Sentence on Conviction as Habitual Felon. - Upon a conviction as an habitual felon, the court must sentence the defendant for the underlying felony as a Class C felon. State v. Penland, 89 N.C. App. 350, 365 S.E.2d 721 (1988).

Defendant's claim failed, where defendant argued that because financial identity fraud was punishable as a class H felony, defendant could not be sentenced at a greater level regardless of defendant's habitual felon status; because defendant was a habitual felon who was convicted of the felonies of failure to appear and financial identity fraud, defendant was to be sentenced as a class C felon under G.S. 14-7.6. State v. Dammons, 159 N.C. App. 284, 583 S.E.2d 606 (2003), review denied, 357 N.C. 579, 589 S.E.2d 133 (2003), cert. denied, 541 U.S. 951, 124 S. Ct. 1691, 158 L. Ed. 2d 382 (2004).

Lack of force and delay in the reporting of larceny did not support a constitutional challenge to defendant's sentence of 107 to 138 months as a habitual felon under G.S. 14-7.6 based on excessiveness. State v. Hager, 203 N.C. App. 704, 692 S.E.2d 404 (2010).

Sentence Upon Subsequent Conviction. - An habitual felon who is convicted of a subsequent felony is sentenced as a Class C felon which has a presumptive term of 15 years and a maximum term of life imprisonment. State v. Patton, 119 N.C. App. 229, 458 S.E.2d 230 (1995), rev'd on other grounds, 342 N.C. 633, 466 S.E.2d 708 (1996).

There is nothing in this section and G.S. 15A-1340.14(d) to prohibit the court from using one conviction obtained in a single calendar week to establish habitual felon status and using another separate conviction obtained the same week to determine prior record level. State v. Truesdale, 123 N.C. App. 639, 473 S.E.2d 670 (1996).

This section did not prohibit defendant's felony sentence from being enhanced on the grounds that he was an habitual felon when elements necessary to prove that he was an habitual felon were the same as those elements which were used to support the underlying felony. State v. Misenheimer, 123 N.C. App. 156, 472 S.E.2d 191 (1996).

Imposition of a 30-year sentence for a habitual felon who under the facts could have received a maximum sentence of life imprisonment under G.S. 14-1.1 is within constitutional limits and does not constitute cruel and unusual punishment. State v. Aldridge, 76 N.C. App. 638, 334 S.E.2d 107 (1985).

Sentence Was Proportionate and Not Cruel and Unusual. - Defendant had a lengthy criminal record and was sentenced accordingly for G.S. 14-100 false pretenses, which sentence was enhanced by his status of being an habitual offender under G.S. 14-7.6; the sentence of 142 months to 180 months was within the range for a Class C level V felon, was not disproportionate to the defendant's 25-year history of criminal convictions, and was not cruel and unusual under U.S. Const. amends. VIII, XIV. State v. Ledwell, 171 N.C. App. 314, 614 S.E.2d 562 (2005).

Separate Judgment and Conviction Held Error. - In prosecution for assault with a deadly weapon upon a law enforcement officer and being an habitual felon, the trial court erred in sentencing defendant in a separate judgment and commitment as an habitual felon. State v. Penland, 89 N.C. App. 350, 365 S.E.2d 721 (1988).

Trial court erred in entering judgment and commitment for defendant under the habitual offender case number since the error was clerical; however, the court was entitled to fix the error and reversal was not necessary. State v. McBride, 173 N.C. App. 101, 618 S.E.2d 754 (2005).

Increased Sentence on Resentencing Upheld. - Where defendant's case was remanded on appeal on grounds that defendant was improperly given a separate sentence in an habitual felon court, it was not error for the trial court to increase defendant's sentence on resentencing from three years to 15 years. State v. Kirkpatrick, 89 N.C. App. 353, 365 S.E.2d 640 (1988).

Prior Crimes Relevant to Habitual Felon Status and to Aggravating Factors. - Evidence of a kidnapping defendant's prior crimes was properly used to establish the status of a habitual felon as well as to establish the aggravating factor of prior felony convictions to increase the presumptive sentence of the underlying felony. State v. Roper, 328 N.C. 337, 402 S.E.2d 600, cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991).

But Status and Underlying Felonies Are Not Separate Factors. - The sentencing court can rely on certain prior criminal convictions to aggravate a current sentence; however, the court cannot consider as separate aggravating factors both the status of being an habitual felon and the felonies underlying the habitual felon adjudication. State v. Kirkpatrick, 345 N.C. 451, 480 S.E.2d 400 (1997).

Trial court erred in sentencing defendant for the status of habitual felony offender alone and because the error was not clerical in nature, the reviewing court could not correct the error and defendant's sentence was vacated. State v. Taylor, 156 N.C. App. 172, 576 S.E.2d 114 (2003).

Trial court did not err in using three felony convictions to increase defendant's prior record level where each of those convictions had been consolidated for judgment with a felony conviction used to establish habitual felon status. State v. Truesdale, 123 N.C. App. 639, 473 S.E.2d 670 (1996).

Construction with Other Laws. - This section does not prohibit the use of convictions used to establish the defendant's status as a habitual offender to assign points pursuant to G.S. 15A-1340(b)(6) and (b)(7), because these provisions address the gravity and circumstances of the offense, rather than the mere existence of a prior offense. State v. Bethea, 122 N.C. App. 623, 471 S.E.2d 430 (1996).

Trial court did not err in considering defendant's prior adjudication as an habitual felon as a nonstatutory aggravating factor when sentencing defendant for uttering an instrument bearing a forged endorsement. State v. Kirkpatrick, 123 N.C. App. 86, 472 S.E.2d 371 (1996), aff'd, 346 N.C. 451, 480 S.E.2d 400 (1997).

Consecutive Sentencing Not Mandatory. - Case had to be remanded for resentencing because the trial court imposed consecutive sentences based on a misapprehension of this statute as the trial court sentenced defendant as an habitual felon to three consecutive terms of imprisonment for his three common law robbery convictions because the trial court incorrectly believed that the law required consecutive sentences on habitual felon judgments; however, based on the language of this statute, the trial court was only required to impose a sentence consecutively to any sentence being served by defendant, but defendant was not already serving a sentence at the time of the sentencing hearing; thus, the trial court was incorrect in its belief that consecutive sentences were mandatory. State v. Duffie, 241 N.C. App. 88, 772 S.E.2d 100 (2015).

Concurrent Sentence Improper. - State had no right to appeal from a concurrent sentence because the sentence was governed by G.S. 14-7.6, which was outside the scope of appeal of G.S. 15A-1445(a)(3)(c); however, because the concurrent sentence was contrary to G.S. 14-7.6, under N.C. R. App. P. 2 the court would treat the appeal as a mandamus petition, vacate the judgment, and remand for resentencing. State v. Watkins, 189 N.C. App. 784, 659 S.E.2d 58 (2008).

Sentence Held Proper. - Sentence imposed on defendant of 84 months to 110 months imprisonment, where defendant had a prior record level of III, was not grossly disproportionate under the Eighth Amendment; defendant's sentence was as a Class C felony under G.S. 14-7.6 and his sentence was in the mitigated sentencing range of G.S. 15A-1340.17. State v. Flemming, 171 N.C. App. 413, 615 S.E.2d 310 (2005).

Trial court did not err in ordering that defendant's term of imprisonment for the sentence at issue began at the expiration of two prior consecutive sentences where G.S, 14-7.6 required that sentences run consecutively, and thus, the discretion under G.S. 15A-1354(a) was inapposite. State v. Jarman, 238 N.C. App. 128, 767 S.E.2d 370 (2014).

Applied in State v. Aldridge, 67 N.C. App. 655, 314 S.E.2d 139 (1984); State v. Todd, 313 N.C. 110, 326 S.E.2d 249 (1985); State v. Haymond, 203 N.C. App. 151, 691 S.E.2d 108 (2010); State v. Wray, 228 N.C. App. 504, 747 S.E.2d 133 (2013), review denied, 755 S.E.2d 615, 2014 N.C. LEXIS 207 (2014); habeas corpus dismissed, without prejudice, mot. denied, petition denied, Certificate of appealability denied, 2016 U.S. Dist. LEXIS 104050 (2016); appeal dismissed, 2017 U.S. App. LEXIS 886 (2017); cert. dismissed, mot. granted, mot. dismissed, as moot, 797 S.E.2d 286, 2017 N.C. LEXIS 205 (2017).

Cited in State v. Keyes, 56 N.C. App. 75, 286 S.E.2d 861 (1982); State v. Melvin, 326 N.C. 173, 388 S.E.2d 72 (1990), review dismissed, 792 S.E.2d 506, 2016 N.C. LEXIS 673 (2016); State v. Williams, 99 N.C. App. 333, 393 S.E.2d 156 (1990); State v. Hodge, 112 N.C. App. 462, 436 S.E.2d 251 (1993); State v. Young, 120 N.C. App. 456, 462 S.E.2d 683 (1995); State v. McCrae, 124 N.C. App. 664, 478 S.E.2d 210 (1996); State v. Little, 126 N.C. App. 262, 484 S.E.2d 835 (1997); Hawkins v. Freeman, 195 F.3d 732 (4th Cir. 1999); State v. Smith, 139 N.C. App. 209, 533 S.E.2d 518 (2000); State v. Holt, 144 N.C. App. 112, 547 S.E.2d 148 (2001); State v. Ezell, 159 N.C. App. 103, 582 S.E.2d 679 (2003); State v. Borders, 164 N.C. App. 120, 594 S.E.2d 813 (2004); Lineberger v. N.C. Dep't of Corr., 189 N.C. App. 1, 657 S.E.2d 673 (2008), aff'd, in part, review improvidently allowed, in part, 362 N.C. 675, 669 S.E.2d 320 (2008); State v. Anderson, 200 N.C. App. 216, 684 S.E.2d 450 (2009); State v. Lackey, 204 N.C. App. 153, 693 S.E.2d 218 (2010); State v. Womack, 211 N.C. App. 309, 712 S.E.2d 193 (2011); State v. Watkins, 229 N.C. App. 628, 747 S.E.2d 907 (2013); State v. Waycaster, 260 N.C. App. 684, 818 S.E.2d 189 (2018).


ARTICLE 2B. Violent Habitual Felons.

Sec.

§ 14-7.7. Persons defined as violent habitual felons.

  1. Any person who has been convicted of two violent felonies in any federal court, in a court of this or any other state of the United States, or in a combination of these courts is declared to be a violent habitual felon. For purposes of this Article, "convicted" means the person has been adjudged guilty of or has entered a plea of guilty or no contest to the violent felony charge, and judgment has been entered thereon when such action occurred on or after July 6, 1967. This Article does not apply to a second violent felony unless it is committed after the conviction or plea of guilty or no contest to the first violent felony. Any felony to which a pardon has been extended shall not, for the purposes of this Article, constitute a felony. The burden of proving a pardon shall rest with the defendant, and this State shall not be required to disprove a pardon. Conviction as an habitual felon shall not, for purposes of this Article, constitute a violent felony.
  2. For purposes of this Article, "violent felony" includes the following offenses:
    1. All Class A through E felonies.
    2. Any repealed or superseded offense substantially equivalent to the offenses listed in subdivision (1).
    3. Any offense committed in another jurisdiction substantially similar to the offenses set forth in subdivision (1) or (2).

History

(1994, Ex. Sess., c. 22, ss. 31, 32; 2000-155, s. 14.)

Legal Periodicals. - For note, "Interpreting Begay After Sykes: Why Reckless Offenses Should be Eligible to Qualify as Violent Felonies Under the ACCA's Residual Clause," see 63 Duke L. J. 955 (2014).

CASE NOTES

Constitutionality. - The violent habitual felon statute is not unconstitutional on its face. State v. Mason, 126 N.C. App. 318, 484 S.E.2d 818 (1997), cert denied, 354 N.C. 72, 553 S.E.2d 208 (2001).

Punishment as a violent habitual felon does not constitute double jeopardy. State v. Stevenson, 136 N.C. App. 235, 523 S.E.2d 734 (1999), cert. denied, 351 N.C. 368, 543 S.E.2d 144 (2000).

Statute Is Not an Ex Post Facto Law - This section is not an ex post facto law pursuant to N.C. Const., Art. I, § 16; defendant's violent habitual felon status would only enhance his punishment for the second degree murder conviction in the instant case, and not his punishment for the underlying voluntary manslaughter felony, and although the violent habitual felon statute was not enacted until 1994, perpetrators were on notice between 1967 and 1994, pursuant to a habitual felon statute, that certain crimes could be used to enhance punishment for later crimes. 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).

Separate Indictments. - Where defendant was charged in one bill of indictment with assault with a deadly weapon with intent to kill inflicting serious injury, and in a separate bill of being a violent habitual felon, defendant's argument that he was not legally charged as a violent habitual felon because the charge was in a separate indictment was without merit. State v. Mason, 126 N.C. App. 318, 484 S.E.2d 818 (1997), cert denied, 354 N.C. 72, 553 S.E.2d 208 (2001).

Contents of Indictment. - A habitual felon indictment is not required to specifically refer to the predicate substantive felony because the defendant is not defending himself against the predicate substantive felony, but against the charge that he has been previously convicted of the required number of felonies. State v. Mason, 126 N.C. App. 318, 484 S.E.2d 818 (1997), cert denied, 354 N.C. 72, 553 S.E.2d 208 (2001).

Violent Felony. - Assault with a deadly weapon inflicting serious injury is also a violent felony for which a defendant may be punished as an habitual violent offender. State v. Mason, 126 N.C. App. 318, 484 S.E.2d 818 (1997), cert denied, 354 N.C. 72, 553 S.E.2d 208 (2001).

Evidence of Prior Violent Felonies. - The State established prima facie evidence of the defendant's prior violent felonies, where it placed into evidence certified copies of the defendant's previous convictions for armed robbery. State v. Mewborn, 131 N.C. App. 495, 507 S.E.2d 906 (1998).

Defendant's 1992 conviction in California of the North Carolina equivalent of an "attempt" to commit a second degree sexual offense, although classified as a Class H felony at the time, was classified as a Class D felony and could be used for the purposes of a conviction under this section. State v. Stevenson, 136 N.C. App. 235, 523 S.E.2d 734 (1999), cert. denied, 351 N.C. 368, 543 S.E.2d 144 (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), 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).

Collateral Estoppel. - Where defendant was acquitted on a charge of being a violent habitual felon, his later trial on the same charge, involving a different primary offense but the same two predicate offenses, was barred by collateral estoppel. State v. Safrit, 145 N.C. App. 541, 551 S.E.2d 516 (2001).

Cited in State v. Smith, 139 N.C. App. 209, 533 S.E.2d 518 (2000); State v. Monroe, 230 N.C. App. 70, 748 S.E.2d 179 (2013), review denied 367 N.C. 1418, 752 S.E.2d 477, 2013 N.C. LEXIS 1418 (2013).


§ 14-7.8. Punishment.

When a person is charged by indictment with the commission of a violent felony and is also charged with being a violent habitual felon as defined in G.S. 14-7.7, the person must, upon conviction, be sentenced in accordance with this Article, except in those cases where the death penalty is imposed.

History

(1994, Ex. Sess., c. 22, s. 31.)

§ 14-7.9. Charge of violent habitual felon.

An indictment that charges a person who is a violent habitual felon within the meaning of G.S. 14-7.7 with the commission of any violent felony must, in order to sustain a conviction of violent habitual felon, also charge that the person is a violent habitual felon. The indictment charging the defendant as a violent habitual felon shall be separate from the indictment charging the defendant with the principal violent felony. An indictment that charges a person with being a violent habitual felon must set forth the date that prior violent felonies were committed, the name of the state or other sovereign against whom the violent felonies were committed, the dates of convictions of the violent felonies, and the identity of the court in which the convictions took place. A defendant charged with being a violent habitual felon in a bill of indictment shall not be required to go to trial on that charge within 20 days after the finding of a true bill by the grand jury unless the defendant waives this 20-day period.

History

(1994, Ex. Sess., c. 22, s. 31.)

CASE NOTES

Name of State. - The name of the state against whom the violent felonies were committed need not be expressly stated if the indictment sufficiently indicates the state. State v. Mason, 126 N.C. App. 318, 484 S.E.2d 818 (1997), cert denied, 354 N.C. 72, 553 S.E.2d 208 (2001).

Replacement of Technically Deficient Indictment. - Due process was not violated where the State obtained a second indictment charging the defendant as a violent habitual felon after the first indictment was technically-deficient because the defendant had not been sentenced for his armed robbery conviction and because the first indictment placed him on notice that he was being tried as a violent habitual felon. State v. Mewborn, 131 N.C. App. 495, 507 S.E.2d 906 (1998).

Held Sufficient. - Indictments were sufficient where each one listed two prior conviction for felonies in Florida that met the requirements under North Carolina law for violent habitual felon status, and each specified a different one of the current offenses as an underlying substantive charge. State v. Floyd, 148 N.C. App. 290, 558 S.E.2d 237 (2002).

Deficient Indictment. - Court erred in failing to dismiss the habitual misdemeanor assault charge where defendant was not properly arraigned; the State introduced no evidence of five prior convictions and failed to present evidence of an essential element of the charge requiring that the conviction for habitual misdemeanor assault be vacated. State v. Burch, 160 N.C. App. 394, 585 S.E.2d 461 (2003).


§ 14-7.10. Evidence of prior convictions of violent felonies.

In all cases where a person is charged under this Article with being a violent habitual felon, the records of prior convictions of violent felonies shall be admissible in evidence, but only for the purpose of proving that the person has been convicted of former violent felonies. A prior conviction may be proved by stipulation of the parties or by the original or a certified copy of the court record of the prior conviction. The original or certified copy of the court record, bearing the same name as that by which the defendant is charged, shall be prima facie evidence that the defendant named therein is the same as the defendant before the court, and shall be prima facie evidence of the facts set out therein.

History

(1994, Ex. Sess., c. 22, s. 31.)

CASE NOTES

Prima Facie Case - Trial court properly denied defendant's motion to dismiss a violent habitual felon indictment against defendant; 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, this section 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), as 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).

Certified Copies of Conviction Sufficient. - The State established prima facie evidence of the defendant's prior violent felonies, where it placed into evidence certified copies of the defendant's previous convictions for armed robbery. State v. Mewborn, 131 N.C. App. 495, 507 S.E.2d 906 (1998).


§ 14-7.11. Verdict and judgment.

When an indictment charges a violent habitual felon with a violent felony as provided in this Article and an indictment also charges that the person is a violent habitual felon as provided in this Article, the defendant shall be tried for the principal violent felony as provided by law. The indictment that the person is a violent habitual felon shall not be revealed to the jury unless the jury finds that the defendant is guilty of the principal violent felony or another violent felony with which the defendant is charged. If the jury finds the defendant guilty of a violent felony, the bill of indictment charging the defendant as a violent habitual felon may be presented to the same jury. Except that the same jury may be used, the proceedings shall be as if the issue of violent habitual felon were a principal charge. If the jury finds that the defendant is a violent habitual felon, the trial judge shall enter judgment according to the provisions of this Article. If the jury finds that the defendant is not a violent habitual felon, the trial judge shall pronounce judgment on the principal violent felony or felonies as provided by law.

History

(1994, Ex. Sess., c. 22, s. 31.)

CASE NOTES

Improper Arraignment. - Court erred in failing to dismiss the habitual misdemeanor assault charge where defendant was not properly arraigned; the State introduced no evidence of five prior convictions and failed to present evidence of an essential element of the charge requiring that the conviction for habitual misdemeanor assault be vacated. State v. Burch, 160 N.C. App. 394, 585 S.E.2d 461 (2003).


§ 14-7.12. Sentencing of violent habitual felons.

A person who is convicted of a violent felony and of being a violent habitual felon must, upon conviction (except where the death penalty is imposed), be sentenced to life imprisonment without parole. Life imprisonment without parole means that the person will spend the remainder of the person's natural life in prison. The sentencing judge may not suspend the sentence and may not place the person sentenced on probation. Sentences for violent habitual felons imposed under this Article shall run consecutively with and shall commence at the expiration of any other sentence being served by the person.

History

(1994, Ex. Sess., c. 22, s. 31.)

CASE NOTES

Constitutionality. - The violent habitual felon statute is not unconstitutional on its face. State v. Mason, 126 N.C. App. 318, 484 S.E.2d 818 (1997), cert denied, 354 N.C. 72, 553 S.E.2d 208 (2001).

The term "life imprisonment without parole" falls within the meaning of the constitutional term "imprisonment," so the sentence was authorized by the Constitution. State v. Allen, 346 N.C. 731, 488 S.E.2d 188 (1997).

Purpose. - Former G.S. 15A-1380.5 allowed a defendant not already benefited by the merciful hand of the Governor to have his case reviewed by a superior court judge; it increases a defendant's chance of parole prior to the end of his natural life. State v. Allen, 346 N.C. 731, 488 S.E.2d 188 (1997).

Applied in State v. Safrit, 145 N.C. App. 541, 551 S.E.2d 516 (2001).

Cited in State v. Mewborn, 131 N.C. App. 495, 507 S.E.2d 906 (1998); State v. Floyd, 148 N.C. App. 290, 558 S.E.2d 237 (2002).


§§ 14-7.13 through 14-7.19: Reserved for future codification purposes.

ARTICLE 2C. Continuing Criminal Enterprise.

Sec.

§ 14-7.20. Continuing criminal enterprise.

  1. Except as otherwise provided in subsection (a1) of this section, any person who engages in a continuing criminal enterprise shall be punished as a Class H felon and in addition shall be subject to the forfeiture prescribed in subsection (b) of this section.
  2. Any person who engages in a continuing criminal enterprise where the felony violation required by subdivision (c)(1) of this section is a violation of G.S. 14-10.1 shall be punished as a Class D felon and, in addition, shall be subject to the forfeiture prescribed in subsection (b) of this section.
  3. Any person who is convicted under subsection (a) or (a1) of this section of engaging in a continuing criminal enterprise shall forfeit to the State of North Carolina:
    1. The profits obtained by the person in the enterprise, and
    2. Any of the person's interest in, claim against, or property or contractual rights of any kind affording a source of influence over, such enterprise.
  4. For purposes of this section, a person is engaged in a continuing criminal enterprise if:
    1. The person violates any provision of this Chapter, the punishment of which is a felony; and
    2. The violation is a part of a continuing series of violations of this Chapter:
      1. Which are undertaken by the person in concert with five or more other persons with respect to whom the person occupies a position of organizer, a supervisory position, or any other position of management; and
      2. From which the person obtains substantial income or resources.

History

(1995, c. 378, s. 1; 2012-38, s. 2.)

Editor's Note. - Session Laws 2012-38, s. 3, made the amendments to this section by Session Laws 2012-38, s. 2, applicable to offenses committed on or after December 1, 2012.

Effect of Amendments. - Session Laws 2012-38, s. 2, effective December 1, 2012, in subsection (a), substituted "Except as otherwise provided in subsection (a1) of this section, any" for "Any"; added subsection (a1); and inserted "or (a1)" in the introductory paragraph subsection (b). For applicability, see editor's note.

§§ 14-7.21 through 14-7.24: Reserved for future codification purposes.

ARTICLE 2D. Habitual Breaking and Entering Status Offense.

Sec.

§ 14-7.25. Definitions.

The following definitions apply in this Article:

  1. "Breaking and entering." - The term means any of the following felony offenses:
    1. First degree burglary (G.S. 14-51).
    2. Second degree burglary (G.S. 14-51).
    3. Breaking out of dwelling house burglary (G.S. 14-53).
    4. Breaking or entering buildings generally (G.S. 14-54(a)).
    5. Breaking or entering a building that is a place of religious worship (G.S. 14-54.1).
    6. Any repealed or superseded offense substantially equivalent to any of the offenses in sub-subdivision a., b., c., d., or e. of this subdivision.
    7. Any offense committed in another jurisdiction substantially similar to any of the offenses in sub-subdivision a., b., c., d., or e. of this subdivision.
  2. "Convicted." - The person has been adjudged guilty of or has entered a plea of guilty or no contest to the offense of breaking and entering.
  3. "Status offender." - A person who is a habitual breaking and entering status offender as described in G.S. 14-7.26.

d1. Breaking or entering with intent to terrorize or injure an occupant of the building (G.S. 14-54(a1)).

History

(2011-192, s. 3(a); 2017-176, s. 3(a).)

Editor's Note. - Session Laws 2011-192, s. 3(e), provides: "This section becomes effective December 1, 2011, and applies to any offense that occurs on or after that date and that is the principal felony offense for a charge of either the status offenses of habitual breaking and entering or habitual felon. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions."

Session Laws 2011-192, s. 9, provides: "This act shall be known as 'The Justice Reinvestment Act of 2011'."

Session Laws 2017-176, s. 3(b), made subdivision (1)d1 as added by Session Laws 2017-176, s. 3(a), effective December 1, 2017, and applicable to offenses committed on or after that date.

Effect of Amendments. - Session Laws 2017-176, s. 3(a), added subdivision (1)d1. For effective date and applicability, see editor's note.

§ 14-7.26. Habitual breaking and entering status offender.

Any person who has been convicted of or pled guilty to one or more prior felony offenses of breaking and entering in any federal court or state court in the United States, or combination thereof, is guilty of the status offense of habitual breaking and entering and may be charged with that status offense pursuant to this Article.

This Article does not apply to a second felony offense of breaking and entering unless it is committed after the conviction of the first felony offense of breaking and entering. For purposes of this Article, felony offenses of breaking and entering committed before the person is 18 years of age shall not constitute more than one felony of breaking and entering. Any felony to which a pardon has been extended shall not, for the purposes of this Article, constitute a felony offense of breaking and entering.

History

(2011-192, s. 3(a).)

Editor's Note. - Session Laws 2011-192, s. 3(e), provides: "This section becomes effective December 1, 2011, and applies to any offense that occurs on or after that date and that is the principal felony offense for a charge of either the status offenses of habitual breaking and entering or habitual felon. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions."

Session Laws 2011-192, s. 9, provides: "This act shall be known as 'The Justice Reinvestment Act of 2011'."

§ 14-7.27. Punishment.

When any person is charged with a felony offense of breaking and entering and is also charged with being a status offender as defined in G.S. 14-7.26, the person must, upon conviction, be sentenced and punished as a status offender as provided by this Article.

History

(2011-192, s. 3(a).)

Editor's Note. - Session Laws 2011-192, s. 3(e), provides: "This section becomes effective December 1, 2011, and applies to any offense that occurs on or after that date and that is the principal felony offense for a charge of either the status offenses of habitual breaking and entering or habitual felon. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions."

Session Laws 2011-192, s. 9, provides: "This act shall be known as 'The Justice Reinvestment Act of 2011'."

§ 14-7.28. Charge of habitual breaking and entering status offender.

  1. The district attorney, in his or her discretion, may charge a person with the status offense of habitual breaking and entering pursuant to this Article. To sustain a conviction of a person as a status offender, the person must be charged separately for the felony offense of breaking and entering and for the habitual breaking and entering status offense. The indictment charging the defendant as a status offender shall be separate from the indictment charging the person with the principal felony offense of breaking and entering.
  2. An indictment that charges a person with being a status offender must set forth the date that the prior felony offense of breaking and entering was committed, the name of the state or other sovereign against whom the felony offense of breaking and entering was committed, the dates that the plea of guilty was entered into or conviction returned in the felony offense of breaking and entering, and the identity of the court in which the plea or conviction took place. No defendant charged with being a status offender in a bill of indictment shall be required to go to trial on the charge within 20 days of the finding of a true bill by the grand jury; provided, the defendant may waive this 20-day period.

History

(2011-192, s. 3(a).)

Editor's Note. - Session Laws 2011-192, s. 3(e), provides: "This section becomes effective December 1, 2011, and applies to any offense that occurs on or after that date and that is the principal felony offense for a charge of either the status offenses of habitual breaking and entering or habitual felon. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions."

Session Laws 2011-192, s. 9, provides: "This act shall be known as 'The Justice Reinvestment Act of 2011'."

§ 14-7.29. Evidence of prior convictions of breaking and entering.

In all cases in which a person is charged under the provisions of this Article with being a status offender, the record of prior conviction of the felony offense of breaking and entering shall be admissible in evidence, but only for the purpose of proving that the person has been convicted of a former felony offense of breaking and entering. A prior conviction may be proved by stipulation of the parties or by the original or a certified copy of the court record of the prior conviction. The original or certified copy of the court record, bearing the same name as that by which the defendant is charged, shall be prima facie evidence that the defendant named therein is the same as the defendant before the court and shall be prima facie evidence of the facts set out therein.

History

(2011-192, s. 3(a).)

Editor's Note. - Session Laws 2011-192, s. 3(e), provides: "This section becomes effective December 1, 2011, and applies to any offense that occurs on or after that date and that is the principal felony offense for a charge of either the status offenses of habitual breaking and entering or habitual felon. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions."

Session Laws 2011-192, s. 9, provides: "This act shall be known as 'The Justice Reinvestment Act of 2011'."

§ 14-7.30. Verdict and judgment.

  1. When an indictment charges a person with a felony offense of breaking and entering as provided by this Article and an indictment also charges that the person is a status offender, the defendant shall be tried for the principal offense of breaking and entering as provided by law. The indictment that the person is a status offender shall not be revealed to the jury unless the jury shall find that the defendant is guilty of the principal felony offense of breaking and entering with which the defendant is charged.
  2. If the jury finds the defendant guilty of the felony offense of breaking and entering, the bill of indictment charging the defendant as a status offender may be presented to the same jury. Except that the same jury may be used, the proceedings shall be as if the issue of status offender were a principal charge.
  3. If the jury finds that the defendant is a status offender, the trial judge shall enter judgment according to the provisions of this Article. If the jury finds that the defendant is not a status offender, the trial judge shall pronounce judgment on the principal felony offense of breaking and entering as provided by law.

History

(2011-192, s. 3(a).)

Editor's Note. - Session Laws 2011-192, s. 3(e), provides: "This section becomes effective December 1, 2011, and applies to any offense that occurs on or after that date and that is the principal felony offense for a charge of either the status offenses of habitual breaking and entering or habitual felon. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions."

Session Laws 2011-192, s. 9, provides: "This act shall be known as 'The Justice Reinvestment Act of 2011'."

§ 14-7.31. Sentencing of status offenders.

  1. When a status offender as defined in this Article commits a felony offense of breaking and entering under the laws of the State of North Carolina, the status offender must, upon conviction or plea of guilty under indictment as provided in this Article, be sentenced as a Class E felon.
  2. In determining the prior record level, any conviction used to establish a person's status as a status offender shall not be used. Sentences imposed under this Article shall run consecutively with and shall commence at the expiration of any sentence being served by the person sentenced under this section.
  3. A conviction as a status offender under this Article shall not constitute commission of a felony for the purpose of either Article 2A or Article 2B of Chapter 14 of the General Statutes.

History

(2011-192, s. 3(a).)

Editor's Note. - Session Laws 2011-192, s. 3(e), provides: "This section becomes effective December 1, 2011, and applies to any offense that occurs on or after that date and that is the principal felony offense for a charge of either the status offenses of habitual breaking and entering or habitual felon. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions."

Session Laws 2011-192, s. 9, provides: "This act shall be known as 'The Justice Reinvestment Act of 2011'."

§§ 14-7.32 through 14-7.34: Reserved for future codification purposes.

ARTICLE 2E. Armed Habitual Felon.

Sec.

§ 14-7.35. Definitions.

The following definitions apply in this Article:

  1. "Convicted." - The person has been adjudged guilty of or has entered a plea of guilty or no contest to the firearm-related felony.
  2. "Firearm-related felony." - Any felony committed by a person in which the person used or displayed a firearm while committing the felony.
  3. "Status offender." - A person who is an armed habitual felon as described in G.S. 14-7.36.

History

(2013-369, s. 26.)

Cross References. - As to requirement that sentence court include in judgment whether firearm was used, see G.S. 15A-1382.2.

Editor's Note. - Session Laws 2013-369, s. 28, made this Article effective October 1, 2013, and applicable to offenses committed on or after that date, and further provides: "Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions."

Session Laws 2013-369, s. 26, enacted this Article as Article 3D. It has been renumbered as Article 2E at the direction of the Revisor of Statutes.

§ 14-7.36. Armed habitual felon.

Any person who has been convicted of or pled guilty to one or more prior firearm-related felony offenses in any federal court or state court in the United States, or combination thereof, is guilty of the status offense of armed habitual felon and may be charged with that status offense pursuant to this Article.

This Article does not apply to a second firearm-related felony unless it is committed after the conviction of a firearm-related felony in which evidence of the person's use, display, or threatened use or display of a firearm was needed to prove an element of the felony or was needed to establish the requirement for an enhanced or aggravated sentence. For purposes of this Article, firearm-related felonies committed before the person is 18 years of age shall not constitute more than one firearm-related felony. Any firearm-related felony to which a pardon has been extended shall not, for the purposes of this Article, constitute a firearm-related felony.

History

(2013-369, s. 26.)

Legal Periodicals. - For article, "Incorporating Collateral Consequences Into Criminal Procedure,” see 54 Wake Forest L. Rev. 1 (2019).

§ 14-7.37. Punishment.

When any person is charged with a firearm-related felony and is also charged with being a status offender, the person must, upon conviction, be sentenced and punished as a status offender as provided by this Article.

History

(2013-369, s. 26.)

§ 14-7.38. Charge of status offense as an armed habitual felon.

  1. The district attorney, in the district attorney's discretion, may charge a person as a status offender pursuant to this Article. To sustain a conviction of a person as a status offender, the person must be charged separately for the principal firearm-related felony and for the status offense of armed habitual felon. The indictment charging the defendant as a status offender shall be separate from the indictment charging the person with the principal firearm-related felony.
  2. An indictment that charges a person with being a status offender must set forth all of the following information regarding the prior firearm-related felony:
    1. The date the offense was committed.
    2. The name of the state or other sovereign against whom the offense was committed.
    3. The dates that the plea of guilty was entered into or conviction returned in the offense.
    4. The identity of the court in which the plea or conviction took place.
  3. No defendant charged with being a status offender in a bill of indictment shall be required to go to trial on the charge within 20 days of the finding of a true bill by the grand jury; provided, the defendant may waive this 20-day period.

History

(2013-369, s. 26.)

§ 14-7.39. Evidence of prior convictions of firearm-related felonies.

In all cases in which a person is charged under the provisions of this Article with being a status offender, the record of prior conviction of the firearm-related felony shall be admissible in evidence, but only for the purpose of proving that the person has been convicted of a former firearm-related felony. A prior conviction may be proved by stipulation of the parties or by the original or a certified copy of the court record of the prior conviction. The original or certified copy of the court record, bearing the same name as that by which the defendant is charged, shall be prima facie evidence that the defendant named therein is the same as the defendant before the court and shall be prima facie evidence of the facts set out therein.

History

(2013-369, s. 26.)

§ 14-7.40. Verdict and judgment.

  1. When an indictment charges a person with a firearm-related felony as provided by this Article and an indictment also charges that the person is a status offender, the defendant shall be tried for the principal firearm-related felony as provided by law. The indictment that the person is a status offender shall not be revealed to the jury unless the jury shall find that the defendant is guilty of the principal firearm-related felony with which the defendant is charged.
  2. If the jury finds the defendant guilty of the principal firearm-related felony, and it is found as provided in this section that (i) the person committed the felony by using, displaying, or threatening the use or display of a firearm or deadly weapon and (ii) the person actually possessed the firearm or deadly weapon about his or her person, the bill of indictment charging the defendant as a status offender may be presented to the same jury. Except that the same jury may be used, the proceedings shall be as if the issue of status offender were a principal charge.
  3. If the jury finds that the defendant is a status offender, the trial judge shall enter judgment according to the provisions of this Article. If the jury finds that the defendant is not a status offender, the trial judge shall pronounce judgment on the principal firearm-related felony offense as provided by law.

History

(2013-369, s. 26.)

§ 14-7.41. Sentencing of armed habitual felon.

  1. A person who is convicted of a firearm-related felony and is also convicted of the status offense must, upon conviction or plea of guilty under indictment as provided in this Article, be sentenced as a Class C felon (except where the felon has been sentenced as a Class A, B1, or B2 felon). However, in no case shall the person receive a minimum term of imprisonment of less than 120 months. The court may not suspend the sentence and may not place the person sentenced on probation.
  2. In determining the prior record level, any conviction used to establish a person's status as an armed habitual felon shall not be used. Sentences imposed under this Article shall run consecutively with and shall commence at the expiration of any sentence being served by the person sentenced under this section.
  3. A conviction as a status offender under this Article shall not constitute commission of a felony for the purpose of either Article 2A or Article 2B of Chapter 14 of the General Statutes.
  4. A sentence imposed under this Article may not be enhanced pursuant to G.S. 15A-1340.16A.

History

(2013-369, s. 26.)

ARTICLE 2F. Crimes by Unmanned Aircraft Systems.

Sec.

§ 14-7.45. Crimes committed by use of unmanned aircraft systems.

All crimes committed by use of an unmanned aircraft system, as defined in G.S. 15A-300.1, while in flight over this State shall be governed by the laws of this State, and the question of whether the conduct by an unmanned aircraft system while in flight over this State constitutes a crime by the owner of the unmanned aircraft system shall be determined by the laws of this State.

History

(2014-100, 34.30(b).)

Cross References. - As to operation of unmanned aircraft systems, see G.S. 63-95.

CASE NOTES

Issue Submitted to Jury. - Trial court erred in sentencing defendant as a habitual felon when the issue was not submitted to the jury. State v. Cannon, 254 N.C. App. 794, 804 S.E.2d 199 (2017), aff'd, 2018 N.C. LEXIS 51 (N.C. 2018) aff'd, 809 S.E.2d 567, 2018 N.C. LEXIS 51 (2018).


SUBCHAPTER II. OFFENSES AGAINST THE STATE.

ARTICLE 3. Rebellion.

Sec.

§ 14-8. Rebellion against the State.

If any person shall incite, set on foot, assist or engage in a rebellion or insurrection against the authority of the State of North Carolina or the laws thereof, or shall give aid or comfort thereto, every person so offending in any of the ways aforesaid shall be guilty of a felony, and shall be punished as a Class F felon.

History

(Const., art. 4, s. 5; 1861, c. 18; 1866, c. 64; 1868, c. 60, s. 2; Code, s. 1106; Rev., s. 3437; C.S., s. 4178; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1122; 1994, Ex. Sess., c. 24, s. 14(c).)

Cross References. - For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

Cited in State v. Creason, 313 N.C. 122, 326 S.E.2d 24 (1985).


§ 14-9: Repealed by Session Laws 1994, Extra Session, c. 14, s. 71(1).

Cross References. - As to structured sentencing of persons convicted of crimes, see G.S. 15A-1340.10 et seq.


§ 14-10. Secret political and military organizations forbidden.

If any person, for the purpose of compassing or furthering any political object, or aiding the success of any political party or organization, or resisting the laws, shall join or in any way connect or unite himself with any oath-bound secret political or military organization, society or association of whatsoever name or character; or shall form or organize or combine and agree with any other person or persons to form or organize any such organization; or as a member of any secret political or military party or organization shall use, or agree to use, any certain signs or grips or passwords, or any disguise of the person or voice, or any disguise whatsoever for the advancement of its object, and shall take or administer any extrajudicial oath or other secret, solemn pledge, or any like secret means; or if any two or more persons, for the purpose of compassing or furthering any political object, or aiding the success of any political party or organization, or circumventing the laws, shall secretly assemble, combine or agree together, and the more effectually to accomplish such purposes, or any of them, shall use any certain signs, or grips, or passwords, or any disguise of the person or voice, or other disguise whatsoever, or shall take or administer any extrajudicial oath or other secret, solemn pledge; or if any persons shall band together and assemble to muster, drill or practice any military evolutions except by virtue of the authority of an officer recognized by law, or of an instructor in institutions or schools in which such evolutions form a part of the course of instruction; or if any person shall knowingly permit any of the acts and things herein forbidden to be had, done or performed on his premises, or on any premises under his control; or if any person being a member of any such secret political or military organization shall not at once abandon the same and separate himself entirely therefrom, every person so offending shall be guilty of a Class 1 misdemeanor.

History

(1868-9, c. 267; 1870-1, c. 133; 1871-2, c. 143; Code, s. 1095; Rev., s. 3439; C.S., s. 4180; 1993, c. 539, s. 10; 1994, Ex. Sess., c. 24, s. 14(c).)

Cross References. - For subsequent statutes relating to prohibited secret societies and activities, see G.S. 14-12.2 et seq.

CASE NOTES

Ku Klux Klan Held Ineligible for School Exemption. - It is beyond peradventure that the school exemption to this section's prohibition on engaging in military evolutions does not apply to a group like the Carolina Knights of the Ku Klux Klan that is engaged in practicing guerilla warfare aimed at subverting the government. Person v. Miller, 854 F.2d 656 (4th Cir. 1988), cert. denied, 489 U.S. 1011, 109 S. Ct. 1119, 103 L. Ed. 2d 182 (1989).

There was ample evidence from which the jury could find that defendant violated this section where the chief military officer of the State listed those organizations authorized to conduct military operations and the list did not include the defendant's organization and he explicitly stated that neither defendant nor defendant's agent, was to his knowledge authorized by law to conduct military operations in North Carolina and also testified that in addition to high school and college ROTC programs, the State has only one accredited military academy. Person v. Miller, 854 F.2d 656 (4th Cir. 1988), cert. denied, 489 U.S. 1011, 109 S. Ct. 1119, 103 L. Ed. 2d 182 (1989).

Cited in State v. Pelley, 221 N.C. 487, 20 S.E.2d 850 (1942); State v. Creason, 313 N.C. 122, 326 S.E.2d 24 (1985).


ARTICLE 3A. Terrorism.

Sec.

§ 14-10.1. Terrorism.

  1. As used in this section, the term "act of violence" means a violation of G.S. 14-17; a felony punishable pursuant to G.S. 14-18; any felony offense in this Chapter that includes an assault, or use of violence or force against a person; any felony offense that includes either the threat or use of any explosive or incendiary device; or any offense that includes the threat or use of a nuclear, biological, or chemical weapon of mass destruction.
  2. A person is guilty of the separate offense of terrorism if the person commits an act of violence with the intent to do either of the following:
    1. Intimidate the civilian population at large, or an identifiable group of the civilian population.
    2. Influence, through intimidation, the conduct or activities of the government of the United States, a state, or any unit of local government.
  3. A violation of this section is a felony that is one class higher than the offense which is the underlying act of violence, except that a violation is a Class B1 felony if the underlying act of violence is a Class A or Class B1 felony offense. A violation of this section is a separate offense from the underlying offense and shall not merge with other offenses.
  4. All real and personal property of every kind used or intended for use in the course of, derived from, or realized through an offense punishable pursuant to this Article shall be subject to lawful seizure and forfeiture to the State as set forth in G.S. 14-2.3 and G.S. 14-7.20. However, the forfeiture of any real or personal property shall be subordinate to any security interest in the property taken by a lender in good faith as collateral for the extension of credit and recorded as provided by law, and no real or personal property shall be forfeited under this section against an owner who made a bona fide purchase of the property, or a person with rightful possession of the property, without knowledge of a violation of this Article.
  5. Any person whose property or person is injured by reason of a violation of this section may sue for and recover treble damages, costs, and attorneys' fees pursuant to G.S. 1-539.2D.

History

(2012-38, s. 1; 2015-215, s. 2.)

Editor's Note. - Session Laws 2012-38, s. 3, made this article effective December 1, 2012, and applicable to offenses committed on or after that date.

Session Laws 2012-38 provides in its preamble: "Whereas, closed community compounds are located across the United States and near the borders of this State; and

"Whereas, these compounds have limited public access and are reputed to be bound together by a common purpose or ideology; and

"Whereas, there have been reports of weapons fire and military-type training occurring at some of these compounds; and

"Whereas, a defendant who was convicted of the attempted murder of nine students at the University of North Carolina at Chapel Hill as an act of revenge for enemy casualties of war was not charged under federal domestic terrorism laws; and

"Whereas, the current State criminal statutes do not sufficiently recognize the increased danger to the public and do not sanction appropriately acts of terrorism; Now, therefore,"

Session Laws 2015-215, s. 3, made subsection (e), as added by Session Laws 2015-215, s. 2, applicable to acts committed on or after October 1, 2015.

Effect of Amendments. - Session Laws 2015-215, s. 2, effective October 1, 2015, and applicable to acts committed on or after that date, added subsection (e).

ARTICLE 4. Subversive Activities.

Sec.

§ 14-11. Activities aimed at overthrow of government; use of public buildings.

It shall be unlawful for any person, by word of mouth or writing, willfully and deliberately to advocate, advise or teach a doctrine that the government of the United States, the State of North Carolina or any political subdivision thereof shall be overthrown or overturned by force or violence or by any other unlawful means. It shall be unlawful for any public building in the State, owned by the State of North Carolina, any political subdivision thereof, or by any department or agency of the State or any institution supported in whole or in part by State funds, to be used by any person for the purpose of advocating, advising or teaching a doctrine that the government of the United States, the State of North Carolina or any political subdivision thereof should be overthrown by force, violence or any other unlawful means.

History

(1941, c. 37, s. 1.)

Legal Periodicals. - For comment on this section, see 19 N.C.L. Rev. 466 (1941).

§ 14-12. Punishment for violations.

Any person or persons violating any of the provisions of this Article shall, for the first offense, be guilty of a Class 1 misdemeanor and be punished accordingly, and for the second offense shall be punished as a Class H felon.

History

(1941, c. 37, s. 2; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 11; 1994, Ex. Sess., c. 24, s. 14(c).)

Cross References. - For structured sentencing provisions, see G.S. 15A-1340.10 et seq.


§ 14-12.1. Certain subversive activities made unlawful.

It shall be unlawful for any person to:

  1. By word of mouth or writing advocate, advise or teach the duty, necessity or propriety of overthrowing or overturning the government of the United States or a political subdivision of the United States by force or violence; or,
  2. Print, publish, edit, issue or knowingly circulate, sell, distribute or publicly display any book, paper, document, or written or printed matter in any form, containing or advocating, advising or teaching the doctrine that the government of the United States or a political subdivision of the United States should be overthrown by force, violence or any unlawful means; or,
  3. Organize or help to organize or become a member of or voluntarily assemble with any society, group or assembly of persons formed to teach or advocate the doctrine that the government of the United States or a political subdivision of the United States should be overthrown by force, violence or any unlawful means.

Any person violating the provisions of this section shall be punished as a Class H felon.

Whenever two or more persons assemble for the purpose of advocating or teaching the doctrine that the government of the United States or a political subdivision of the United States should be overthrown by force, violence or any unlawful means, such an assembly is unlawful, and every person voluntarily participating therein by his presence, aid or instigation, shall be punished as a Class H felon.

Every editor or proprietor of a book, newspaper or serial and every manager of a partnership or incorporated association by which a book, newspaper or serial is issued, is chargeable with the publication of any matter contained in such book, newspaper or serial. But in every prosecution therefor, the defendant may show in his defense that the matter complained of was published without his knowledge or fault and against his wishes, by another who had no authority from him to make the publication and whose act was disavowed by him as soon as known.

No person shall be employed by any department, bureau, institution or agency of the State of North Carolina who has participated in any of the activities described in this section, and any person now employed by any department, bureau, institution or agency and who has been or is engaged in any of the activities described in this section shall be forthwith discharged. Evidence satisfactory to the head of such department, bureau, institution or agency of the State shall be sufficient for refusal to employ any person or cause for discharge of any employee for the reasons set forth in this paragraph.

History

(1947, c. 1028; 1953, c. 675, s. 2; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14.)

Cross References. - For structured sentencing provisions, see G.S. 15A-1340.10 et seq.


ARTICLE 4A. Prohibited Secret Societies and Activities.

Sec.

§ 14-12.2. Definitions.

The terms used in this Article are defined as follows:

  1. The term "secret society" shall mean any two or more persons organized, associated together, combined or united for any common purpose whatsoever, who shall use among themselves any certain grips, signs or password, or who shall use for the advancement of any of their purposes or as a part of their ritual any disguise of the person, face or voice or any disguise whatsoever, or who shall take any extrajudicial oath or secret solemn pledge or administer such oath or pledge to those associated with them, or who shall transact business and advance their purposes at secret meeting or meetings which are tiled and guarded against intrusion by persons not associated with them.
  2. The term "secret political society" shall mean any secret society, as hereinbefore defined, which shall at any time have for a purpose the hindering or aiding the success of any candidate for public office, or the hindering or aiding the success of any political party or organization, or violating any lawfully declared policy of the government of the State or any of the laws and constitutional provisions of the State.
  3. The term "secret military society" shall mean any secret society, as hereinbefore defined, which shall at any time meet, assemble or engage in a venture when members thereof are illegally armed, or which shall at any time have for a purpose the engaging in any venture by members thereof which shall require illegal armed force or in which illegal armed force is to be used, or which shall at any time muster, drill or practice any military evolutions while illegally armed.

History

(1953, c. 1193, s. 1.)

Legal Periodicals. - For comment on this Article, see 31 N.C.L. Rev. 401 (1953).

§ 14-12.3. Certain secret societies prohibited.

It shall be unlawful for any person to join, unite himself with, become a member of, apply for membership in, form, organize, solicit members for, combine and agree with any person or persons to form or organize, or to encourage, aid or assist in any way any secret political society or any secret military society or any secret society having for a purpose the violating or circumventing the laws of the State.

History

(1953, c. 1193, s. 2.)

§ 14-12.4. Use of signs, grips, passwords or disguises or taking or administering oath for illegal purposes.

It shall be unlawful for any person to use, agree to use, or to encourage, aid or assist in the using of any signs, grips, passwords, disguise of the face, person or voice, or any disguise whatsoever in the furtherance of any illegal secret political purpose, any illegal secret military purpose, or any purpose of violating or circumventing the laws of the State; and it shall be unlawful for any person to take or administer, or agree to take or administer, any extrajudicial oath or secret solemn pledge to further any illegal secret political purpose, any illegal secret military purpose, or any purpose of violating or circumventing the laws of the State.

History

(1953, c. 1193, s. 3.)

§ 14-12.5. Permitting, etc., meetings or demonstrations of prohibited secret societies.

It shall be unlawful for any person to permit or agree to permit any members of a secret political society or a secret military society or a secret society having for a purpose the violating or circumventing the laws of the State to meet or to hold any demonstration in or upon any property owned or controlled by him.

History

(1953, c. 1193, s. 4.)

§ 14-12.6. Meeting places and meetings of secret societies regulated.

Every secret society which has been or is now being formed and organized within the State, and which has members within the State shall forthwith provide or cause to be provided for each unit, lodge, council, group of members, grand lodge or general supervising unit a regular meeting place in some building or structure, and shall forthwith place and thereafter regularly keep a plainly visible sign or placard on the immediate exterior of such building or structure or on the immediate exterior of the meeting room or hall within such building or structure, if the entire building or structure is not controlled by such secret society, bearing upon said sign or placard the name of the secret society, the name of the particular unit, lodge, council, group of members, grand lodge or general supervising unit thereof and the name of the secretary, officer, organizer or member thereof who knows the purposes of the secret society and who knows or has a list of the names and addresses of the members thereof, and as such secretary, officer, organizer or member dies, removes, resigns or is replaced, his or her successor's name shall be placed upon such sign or placard; any person or persons who shall hereafter undertake to form and organize any secret society or solicit membership for a secret society within the State shall fully comply with the foregoing provisions of this section before forming and organizing such secret society and before soliciting memberships therein; all units, lodges, councils, groups of members, grand lodge and general supervising units of all secret societies within the State shall hold all of their secret meetings at the regular meeting place of their respective units, lodges, councils, group of members, grand lodge or general supervising units or at the regular meeting place of some other unit, lodge, council, group of members, grand lodge or general supervising unit of the same secret society, and at no other place unless notice is given of the time and place of the meeting and the name of the secret society holding the meeting in some newspaper having circulation in the locality where the meeting is to be held at least two days before the meeting.

History

(1953, c. 1193, s. 5.)

§ 14-12.7. Wearing of masks, hoods, etc., on public ways.

No person or persons at least 16 years of age shall, while wearing any mask, hood or device whereby the person, face or voice is disguised so as to conceal the identity of the wearer, enter, be or appear upon any lane, walkway, alley, street, road, highway or other public way in this State.

History

(1953, c. 1193, s. 6; 1983, c. 175, ss. 1, 10; c. 720, s. 4.)

§ 14-12.8. Wearing of masks, hoods, etc., on public property.

No person or persons shall in this State, while wearing any mask, hood or device whereby the person, face or voice is disguised so as to conceal the identity of the wearer, enter, or appear upon or within the public property of any municipality or county of the State, or of the State of North Carolina.

History

(1953, c. 1193, s. 7.)

§ 14-12.9. Entry, etc., upon premises of another while wearing mask, hood or other disguise.

No person or persons at least 16 years of age shall, while wearing a mask, hood or device whereby the person, face or voice is disguised so as to conceal the identity of the wearer, demand entrance or admission, enter or come upon or into, or be upon or in the premises, enclosure or house of any other person in any municipality or county of this State.

History

(1953, c. 1193, s. 8; 1983, c. 175, ss. 2, 10; c. 720, s. 4.)

CASE NOTES

Cited in State v. Gaines, 332 N.C. 461, 421 S.E.2d 569 (1992), cert. denied, 522 U.S. 900, 118 S. Ct. 248, 139 L. Ed. 2d 177 (1997).


§ 14-12.10. Holding meetings or demonstrations while wearing masks, hoods, etc.

No person or persons at least 16 years of age shall while wearing a mask, hood or device whereby the person, face or voice is disguised so as to conceal the identity of the wearer, hold any manner of meeting, or make any demonstration upon the private property of another unless such person or persons shall first obtain from the owner or occupier of the property his or her written permission to do so, which said written permission shall be recorded in the office of the register of deeds of the county in which said property is located before the beginning of such meeting or demonstration.

History

(1953, c. 1193, s. 9; 1983, c. 175, ss. 3, 10; c. 720, s. 4.)

§ 14-12.11. Exemptions from provisions of Article.

  1. Any of the following are exempted from the provisions of G.S. 14-12.7, 14-12.8, 14-12.9, 14-12.10 and 14-12.14:
    1. Any person or persons wearing traditional holiday costumes in season.
    2. Any person or persons engaged in trades and employment where a mask is worn for the purpose of ensuring the physical safety of the wearer, or because of the nature of the occupation, trade or profession.
    3. Any person or persons using masks in theatrical productions including use in Mardi Gras celebrations and masquerade balls.
    4. Persons wearing gas masks prescribed in civil defense drills and exercises or emergencies.
    5. Any person or persons, as members or members elect of a society, order or organization, engaged in any parade, ritual, initiation, ceremony, celebration or requirement of such society, order or organization, and wearing or using any manner of costume, paraphernalia, disguise, facial makeup, hood, implement or device, whether the identity of such person or persons is concealed or not, on any public or private street, road, way or property, or in any public or private building, provided permission shall have been first obtained therefor by a representative of such society, order or organization from the governing body of the municipality in which the same takes place, or, if not in a municipality, from the board of county commissioners of the county in which the same takes place.
    6. Any person wearing a mask for the purpose of ensuring the physical health or safety of the wearer or others.
  2. This Article shall not apply to any preliminary meetings held in good faith for the purpose of organizing, promoting or forming a labor union or a local organization or subdivision of any labor union nor shall the provisions of this Article apply to any meetings held by a labor union or organization already organized, operating and functioning and holding meetings for the purpose of transacting and carrying out functions, pursuits and affairs expressly pertaining to such labor union.
  3. Notwithstanding G.S. 14-12.7 and G.S. 14-12.8, a person may wear a mask for the purpose of protecting the person's head, face, or head and face, when operating a motorcycle, as defined in G.S. 20-4.01. A person wearing a mask when operating a motorcycle shall remove the mask during a traffic stop, including at a checkpoint or roadblock under G.S. 20-16.3A, or when approached by a law enforcement officer.
  4. Notwithstanding subdivision (a)(6) of this section, a person wearing a mask for the purpose of ensuring the physical health or safety of the wearer or others shall remove the mask, upon request by a law enforcement officer, in any of the following circumstances:
    1. During a traffic stop, including a checkpoint or roadblock pursuant to G.S. 20-16.3A.
    2. When a law enforcement officer has reasonable suspicion or probable cause during a criminal investigation.

History

(1953, c. 1193, s. 10; 2019-115, s. 1; 2020-3, s. 4.3(a); 2020-93, ss. 2, 3.)

Editor's Note. - Session Laws 2019-115, s. 2, made subsection (b), as added by Session Laws 2019-115, s. 1, effective December 1, 2019, and applicable to offenses committed on or after that date.

Session Laws 2020-3, s. 4.3(b), made the amendment to this section by Session Laws 2020-3, s. 4.3(a) effective May 4, 2020, and provided that the amendment expired August 1, 2020. Session Laws 2020-93, s. 2, effective July 10, 2020, amended Session Laws 2020-3, s. 4.3(b), by deleting the expiration provision.

Session Laws 2020-3, s. 5, is a severability clause.

Effect of Amendments. - Session Laws 2019-115, s. 1, designated the previously existing provisions of the section as subsection (a); and added subsection (b). For effective date and applicability, see editor's note.

Session Laws 2020-3, s. 4.3(a), substituted "Any of the" for "The" in the introductory language of subsection (a); added subdivision (a)(6), and made stylistic changes; and added subsection (c). For effective date and expiration of amendment, see editor's note.

Session Laws 2020-93, s. 3, effective July 10, 2020, added the subsection (a1) designator and, in subsection (a1), substituted "This Article" for "Provided, that the provisions of this Article" at the beginning; and added "Notwithstanding subdivision (a)(6) of this section" at the beginning of subsection (c).

§ 14-12.12. Placing burning or flaming cross on property of another or on public street or highway or on any public place.

  1. It shall be unlawful for any person or persons to place or cause to be placed on the property of another in this State a burning or flaming cross or any manner of exhibit in which a burning or flaming cross, real or simulated, is a whole or a part, without first obtaining written permission of the owner or occupier of the premises so to do.
  2. It shall be unlawful for any person or persons to place or cause to be placed on the property of another in this State or on a public street or highway, or on any public place a burning or flaming cross or any manner of exhibit in which a burning or flaming cross real or simulated, is a whole or a part, with the intention of intimidating any person or persons or of preventing them from doing any act which is lawful, or causing them to do any act which is unlawful.

History

(1953, c. 1193, s. 11; 1967, c. 522, ss. 1, 2; 2008-197, s. 1.)

Effect of Amendments. - Session Laws 2008-197, s. 1, effective December 1, 2008, and applicable to offenses committed on or after that date, inserted "or on any public place" in the section heading, and in subsection (b).

CASE NOTES

Cited in State v. Frazier, 278 N.C. 458, 180 S.E.2d 128 (1971).


§ 14-12.13. Placing exhibit with intention of intimidating, etc., another.

It shall be unlawful for any person or persons to place or cause to be placed anywhere in this State any exhibit of any kind whatsoever, while masked or unmasked, with the intention of intimidating any person or persons, or of preventing them from doing any act which is lawful, or of causing them to do any act which is unlawful. For the purposes of this section, the term "exhibit" includes items such as a noose.

History

(1953, c. 1193, s. 12; 2008-197, s. 2.)

Effect of Amendments. - Session Laws 2008-197, s. 2, effective December 1, 2008, and applicable to offenses committed on or after that date, added the last sentence.

§ 14-12.14. Placing exhibit while wearing mask, hood, or other disguise.

It shall be unlawful for any person or persons, while wearing a mask, hood or device whereby the person, face or voice is disguised so as to conceal the identity of the wearer, to place or cause to be placed at or in any place in the State any exhibit of any kind whatsoever, with the intention of intimidating any person or persons, or of preventing them from doing any act which is lawful, or of causing them to do any act which is unlawful. For the purposes of this section, the term "exhibit" includes items such as a noose.

History

(1953, c. 1193, s. 13; 1967, c. 522, s. 3; 2008-197, s. 3.)

Effect of Amendments. - Session Laws 2008-197, s. 3, effective December 1, 2008, and applicable to offenses committed on or after that date, added the last sentence.

§ 14-12.15. Punishment for violation of Article.

All persons violating any of the provisions of this Article, except for G.S. 14-12.12(b), 14-12.13, and 14-12.14, shall be guilty of a Class 1 misdemeanor. All persons violating the provisions of G.S. 14-12.12(b), 14-12.13, and 14-12.14 shall be punished as a Class H felon.

History

(1953, c. 1193, s. 14; 1967, c. 602; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 12; 1994, Ex. Sess., c. 24, s. 14(c); 2008-197, s. 4.)

Cross References. - For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Effect of Amendments. - Session Laws 2008-197, s. 4, effective December 1, 2008, and applicable to offenses committed on or after that date, substituted "Class H" for "Class I" at the end.

ARTICLE 5. Counterfeiting and Issuing Monetary Substitutes.

Sec.

§ 14-13. Counterfeiting coin and uttering coin that is counterfeit.

If any person shall falsely make, forge or counterfeit, or cause or procure to be falsely made, forged or counterfeited, or willingly aid or assist in falsely making, forging or counterfeiting the resemblance or similitude or likeness of any coin of gold or silver which is in common use and received in the discharge of contracts by the citizens of the State; or shall pass, utter, publish or sell, or attempt to pass, utter, publish or sell, or bring into the State from any other place with intent to pass, utter, publish or sell as true, any such false, forged or counterfeited coin, knowing the same to be false, forged or counterfeited, with intent to defraud any person whatsoever, every person so offending shall be punished as a Class I felon.

History

(1811, c. 814, s. 3, P.R.; R.C., c. 34, s. 64; Code, s. 1035; Rev., s. 3422; C.S., s. 4181; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1123; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 379, s. 1(a).)

Cross References. - As to forgery, see G.S. 14-119 et seq.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.


§ 14-14. Possessing tools for counterfeiting.

If any person shall have in his possession any instrument for the purpose of making any counterfeit similitude or likeness of any coin made of gold or silver which is in common use and received in discharge of contracts by the citizens of the State, and shall be duly convicted thereof, the person so offending shall be punished as a Class I felon.

History

(1811, c. 814, s. 4, P.R.; R.C., c. 34, s. 65; Code, s. 1036; Rev., s. 3423; C.S., s. 4182; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1124; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 379, s. 1(b).)

Cross References. - For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

Indictment Sufficient. - An indictment charging defendant with having in his possession "one pair of dies, upon which were made the likeness, similitude, figure and resemblance of the sides of a lawful Spanish milled silver dollar, etc., for the purpose of making and counterfeiting money in the likeness and similitude of Spanish milled silver dollars," was held to charge, with sufficient certainty, the offense designated in this section. State v. Collins, 10 N.C. 191 (1824).


§ 14-15. Issuing substitutes for money without authority.

If any person or corporation, unless the same be expressly allowed by law, shall issue any bill, due bill, order, ticket, certificate of deposit, promissory note or obligation, or any other kind of security, whatever may be its form or name, with the intent that the same shall circulate or pass as the representative of, or as a substitute for, money, he shall be guilty of a Class 3 misdemeanor and only punishable by a fine not to exceed the sum of fifty dollars ($50.00); and if the offender be a corporation, it shall in addition forfeit its charter. Every person or corporation offending against this section, or aiding or assisting therein, shall be guilty of a Class 3 misdemeanor and only punishable by a fine not to exceed fifty dollars ($50.00).

History

(R.C., c. 36, s. 5; Code, s. 2493; 1895, c. 127; Rev., s. 3711; C.S., s. 4183; 1993, c. 539, s. 13; 1994, Ex. Sess., c. 24, s. 14(c).)

Local Modification. - Cumberland: 1933, c. 33; Currituck: 1933, c. 328.

CASE NOTES

In General. - Act of 1816, c. 900, which was very similar to this section, was held constitutional and the intent in so issuing the notes, etc., was held an essential ingredient of the offense. In State v. Humphreys, 19 N.C. 555 (1837).


§ 14-16. Receiving or passing unauthorized substitutes for money.

If any person or corporation shall pass or receive, as the representative of, or as the substitute for, money, any bill, check, certificate, promissory note, or other security of the kind mentioned in G.S. 14-15, whether the same be issued within or without the State, such person or corporation, and the officers and agents of such corporation aiding therein, who shall offend against this section shall be guilty of a Class 3 misdemeanor and only punishable by a fine not to exceed five dollars ($5.00).

History

(R.C., c. 36, s. 6; Code, s. 2494; 1895, c. 127; Rev., s. 3712; C.S., s. 4184; 1993, c. 539, s. 14; 1994, Ex. Sess., c. 24, s. 14(c).)

CASE NOTES

Applicability. - Section making it an offense to "pass and receive" bank notes did not apply to a bank, but the bank should be penalized under another section which made it unlawful to make and issue notes of a less denomination than $3.00. State v. Bank of Fayetteville, 48 N.C. 450 (1856).


§§ 14-16.1 through 14-16.5: Reserved for future codification purposes.

ARTICLE 5A. Endangering Executive, Legislative, and Court Officers.

Sec.

§ 14-16.6. Assault on executive, legislative, or court officer.

  1. Any person who assaults any legislative officer, executive officer, or court officer, or assaults another person as retaliation against any legislative officer, executive officer, or court officer because of the exercise of that officer's duties, or any person who makes a violent attack upon the residence, office, temporary accommodation or means of transport of any one of those officers or persons in a manner likely to endanger the officer or person, shall be guilty of a felony and shall be punished as a Class I felon.
  2. Any person who commits an offense under subsection (a) and uses a deadly weapon in the commission of that offense shall be punished as a Class F felon.
  3. Any person who commits an offense under subsection (a) and inflicts serious bodily injury to any legislative officer, executive officer, or court officer, shall be punished as a Class F felon.

History

(1981, c. 822, s. 1; 1993, c. 539, s. 1125; 1994, Ex. Sess., c. 24, s. 14(c); 1999-398, s. 1; 2014-119, s. 6(a).)

Cross References. - For definitions applicable to this Article, see G.S. 14-16.10.

As to authority of the State Bureau of Investigation to investigate assaults upon or threats against the officers named in G.S. 147-2 and 147-3(c), see G.S. 143B-919.

Editor's Note. - Session Laws 2014-119, s. 6(c), made the rewriting of subsection (a) by Session Laws 2014-119, s. 6(a), applicable to offenses committed on or after December 1, 2014.

Effect of Amendments. - Session Laws 2014-119, s. 6(a), effective December 1, 2014, rewrote subsection (a). See Editor's note for applicability.

Legal Periodicals. - For "Legislative Survey: Criminal Law," see 22 Campbell L. Rev. 253 (2000).

§ 14-16.7. Threats against executive, legislative, or court officers.

  1. Any person who knowingly and willfully makes any threat to inflict serious bodily injury upon or to kill any legislative officer, executive officer, or court officer, or who knowingly and willfully makes any threat to inflict serious bodily injury upon or kill any other person as retaliation against any legislative officer, executive officer, or court officer because of the exercise of that officer's duties, shall be guilty of a felony and shall be punished as a Class I felon.
  2. Any person who knowingly and willfully deposits for conveyance in the mail any letter, writing, or other document containing a threat to commit an offense described in subsection (a) of this section shall be guilty of a felony and shall be punished as a Class I felon.

History

(1981, c. 822, s. 1; 1993, c. 539, s. 1126; 1994, Ex. Sess., c. 24, s. 14(c); 1999-398, s. 1; 2014-119, s. 6(b).)

Editor's Note. - Session Laws 2014-119, s. 6(c), made the amendment to this section by Session Laws 2014-119, s. 6(b), applicable to offenses committed on or after December 1, 2014.

Effect of Amendments. - Session Laws 2014-119, s. 6(b), effective December 1, 2014, rewrote subsection (a), and substituted "commit an offense described in subsection (a) of this section" for "inflict serious bodily injury upon or to kill any legislative officer, executive officer, or court officer" in subsection (b). See Editor's note for applicability.

CASE NOTES

True Threat. - Defendant's social media posts did not rise to the level of a true treat because the statements were political hyperbole, there were no specifics that suggested an actual intent that the district attorney be killed, the State never proved that defendant actually owned any firearms or ammunition, the district attorney testified that she did not feel the need to have personal protection and she was not concerned about returning to work the next day, a detective did not express any concern directly to defendant, none of the responses to the posts indicated concern that defendant might be planning to kill the district attorney, and defendant's deletion of the posts was strong evidence that he did not intend the posts to constitute a true threat to kill the district attorney. State v. Taylor, - N.C. App. - , 841 S.E.2d 776 (2020).

Record evidence could not have supported a finding that defendant's intent in posting his comments was to cause the district attorney to believe that defendant was going to kill her considering the alleged threats in the context of the entire social media conversation on defendant's personal social media page, to which the district attorney Welch did not have access. State v. Taylor, - N.C. App. - , 841 S.E.2d 776 (2020).

Because proof of a "true threat" is essential to prosecution pursuant this section, "true threat" must be included in the definition of the crime of threatening to kill a court officer. Further, "true threat" must be included as an "essential element" of the statute. State v. Taylor, - N.C. App. - , 841 S.E.2d 776 (2020).

"True threat" is a constitutional fact that must be proven by the State beyond a reasonable doubt. Therefore, true threat is an essential element of this section, and the trial court is constitutionally prohibited from deciding the existence of a true threat as a matter of law. State v. Taylor, - N.C. App. - , 841 S.E.2d 776 (2020).

Jury Instructions. - Trial court erred by failing grant defendant's request to instruct the jury that the State had to prove defendant communicated a "true threat," that it instruct the jury on the definition of "true threat," and that it instruct the jury on the appropriate standards of intent because defendant's requested instruction was a generally correct statement of the law, and without instructing the jurors that they were required to consider the alleged threats in context and that they were required to apply the appropriate intent standards, the jury was free to find defendant guilty without having made a determination that any of defendant's posts were true threats. State v. Taylor, - N.C. App. - , 841 S.E.2d 776 (2020).

Trial court must properly and fully instruct the jury on all the required elements of anti-threat statutes, including the element of true threat, along with its associated intent elements, both general and specific. State v. Taylor, - N.C. App. - , 841 S.E.2d 776 (2020).

§ 14-16.8. No requirement of receipt of the threat.

In prosecutions under G.S. 14-16.7 of this Article it shall not be necessary to prove that any legislative officer, executive officer, or court officer actually received the threatening communication or actually believed the threat.

History

(1981, c. 822, s. 1; 1999-398, s. 1.)

§ 14-16.9. Officers-elect to be covered.

Any person who has been elected to any office covered by this Article but has not yet taken the oath of office shall be considered to hold the office for the purpose of this Article and G.S. 143B-919.

History

(1981, c. 822, s. 1; 2011-145, s. 19.1(dd1); 2011-391, s. 43( l ); 2014-100, s. 17.1(v).)

Effect of Amendments. - Session Laws 2014-100, s. 17.1(v), effective July 1, 2014, substituted "G.S. 143B-919" for "G.S. 114-15" at the end of the section.


§ 14-16.10. Definitions.

The following definitions apply in this Article:

  1. Court officer. - Magistrate, clerk of superior court, acting clerk, assistant or deputy clerk, judge, or justice of the General Court of Justice; district attorney, assistant district attorney, or any other attorney designated by the district attorney to act for the State or on behalf of the district attorney; public defender or assistant defender; court reporter; juvenile court counselor as defined in G.S. 7B-1501(18a); any attorney or other individual employed by or acting on behalf of the department of social services in proceedings pursuant to Subchapter I of Chapter 7B of the General Statutes; any attorney or other individual appointed pursuant to G.S. 7B-601 or G.S. 7B-1108 or employed by the Guardian ad Litem Services Division of the Administrative Office of the Courts.
  2. Executive officer. - A person named in G.S. 147-3(c).
  3. Legislative officer. - A person named in G.S. 147-2(1), (2), or (3).

History

(1999-398, s. 1; 2001-490, s. 2.35; 2003-140, s. 10.)

SUBCHAPTER III. OFFENSES AGAINST THE PERSON.

ARTICLE 6. Homicide.

Sec.

§ 14-17. Murder in the first and second degree defined; punishment.

  1. A murder which shall be perpetrated by means of a nuclear, biological, or chemical weapon of mass destruction as defined in G.S. 14-288.21, poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon shall be deemed to be murder in the first degree, a Class A felony, and any person who commits such murder shall be punished with death or imprisonment in the State's prison for life without parole as the court shall determine pursuant to G.S. 15A-2000, except that any such person who was under 18 years of age at the time of the murder shall be punished in accordance with Part 2A of Article 81B of Chapter 15A of the General Statutes.
  2. If a murder was perpetrated with malice as described in subdivision (1) of subsection (b) of this section, and committed against a spouse, former spouse, a person with whom the defendant lives or has lived as if married, a person with whom the defendant is or has been in a dating relationship as defined in G.S. 50B-1(b)(6), or a person with whom the defendant shares a child in common, there shall be a rebuttable presumption that the murder is a "willful, deliberate, and premeditated killing" under subsection (a) of this section and shall be deemed to be murder in the first degree, a Class A felony, if the perpetrator has previously been convicted of one of the following offenses involving the same victim:
    1. An act of domestic violence as defined in G.S. 50B-1(a).
    2. A violation of a domestic violence protective order under G.S. 50B-4.1(a), (f), (g), or (g1) or G.S. 14-269.8 when the same victim is the subject of the domestic violence protective order.
    3. Communicating a threat under G.S. 14-277.1.
    4. Stalking as defined in G.S. 14-277.3A.
    5. Cyberstalking as defined in G.S. 14-196.3.
    6. Domestic criminal trespass as defined in G.S. 14-134.3.
  3. A murder other than described in subsection (a) or (a1) of this section or in G.S. 14-23.2 shall be deemed second degree murder. Any person who commits second degree murder shall be punished as a Class B1 felon, except that a person who commits second degree murder shall be punished as a Class B2 felon in either of the following circumstances:
    1. The malice necessary to prove second degree murder is based on an inherently dangerous act or omission, done in such a reckless and wanton manner as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief.
    2. The murder is one that was proximately caused by the unlawful distribution of any opium, opiate, or opioid; any synthetic or natural salt, compound, derivative, or preparation of opium, or opiate, or opioid; cocaine or other substance described in G.S. 90-90(1)d.; methamphetamine; or a depressant described in G.S. 90-92(a)(1), and the ingestion of such substance caused the death of the user.
  4. For the purposes of this section, it shall constitute murder where a child is born alive but dies as a result of injuries inflicted prior to the child being born alive. The degree of murder shall be determined as described in subsections (a) and (b) of this section.

History

(1893, cc. 85, 281; Rev., s. 3631; C.S., s. 4200; 1949, c. 299, s. 1; 1973, c. 1201, s. 1; 1977, c. 406, s. 1; 1979, c. 682, s. 6; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1251, ss. 1, 2; c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; c. 662, s. 1; 1987, c. 693; 1989, c. 694; 1993, c. 539, s. 112; 1994, Ex. Sess., c. 21, s. 1; c. 22, s. 4; c. 24, s. 14(c); 2001-470, s. 2; 2004-178, s. 1; 2007-81, s. 1; 2012-165, s. 1; 2013-47, s. 2; 2013-410, s. 3(a); 2017-94, s. 1; 2017-115, s. 9.)

Cross References. - As to provisions regarding transfer to superior court, see G.S. 7B-2200.

As to accomplices, see G.S. 14-5.2.

As to nuclear, biological, or chemical weapons of mass destruction, see G.S. 14-288.21 et seq.

As to assault in this State, but death in another, see G.S. 15-131.

As to indictment for homicide, see G.S. 15-144.

As to verdict in prosecution for homicide, see G.S. 15-172.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

As to eligibility for parole of prisoners serving life sentence, see G.S. 15A-1371.

As to capital punishment, see G.S. 15A-2000 et seq.

As to provisions regarding controlled substances, see G.S. 90-90.

Editor's Note. - Session Laws 2012-165 provides in its preamble: "Whereas, the State must prove that the defendant acted with malice to obtain a conviction of second degree murder; and

"Whereas, North Carolina case law holds that malice may be shown in three different ways: by hatred, ill will, or spite; a condition of the mind which prompts a person to take the life of another intentionally or to intentionally inflict serious bodily injury which proximately results in another's death, without just cause, excuse or justification; or the commission of an inherently dangerous act or omission, in such a reckless and wanton manner as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief; Now, therefore;"

Session Laws 2012-165, s. 4, made the amendments to this section by Session Laws 2012-165, s. 1, which amended subsection (a) and added subsection (b), applicable to offenses committed on or after December 1, 2012.

Session Laws 2013-47, s. 1, provides: "This act shall be known as 'Lily's Law.'"

Session Laws 2013-47, s. 3, provides: "This act becomes effective December 1, 2013, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the common law and statutes that would be applicable but for this act remain applicable to those prosecutions. The statutes, including Article 6A of Chapter 14 of the General Statutes, and the common law shall remain applicable to offenses not described in this act, whether the offense is charged due to a child being born alive and who dies or who is born alive with injuries resulting from injuries inflicted prior to being born alive. Nothing in this act shall be construed to apply to an unintentional act or omission committed by the child's birth mother during the pregnancy that culminated in the birth of the child." Session Laws 2013-47, s. 2, added subsection (c).

Session Laws 2017-94, s. 2, made subsection (a1), as added by Session Laws 2017-94, s. 1, effective December 1, 2017, and applicable to offenses committed on or after that date.

Session Laws 2017-115, s. 1, provides: "This act shall be known and may be cited as the 'Synthetic Opioid and Other Dangerous Drug Control Act."'

Session Laws 2017-115, s. 12, made the rewriting of subdivision (b)(2) by Session Laws 2017-115, s. 9, effective December 1, 2017, and applicable to offenses committed on or after that date.

Effect of Amendments. - Session Laws 2004-178, s. 1, effective December 1, 2004, and applicable to offenses committed on or after that date, inserted "or methamphetamine" preceding "when the ingestion" in the last sentence.

Session Laws 2007-81, s. 1, effective June 14, 2007, substituted "18 years" for "17 years" near the end of the first sentence; and deleted the former second sentence, which read: "Provided, however, any person under the age of 17 who commits murder in the first degree while serving a prison sentence imposed for a prior murder or while on escape from a prison sentence imposed for a prior murder shall be punished with death or imprisonment in the State's prison for life without parole as the court shall determine pursuant to G.S. 15A-2000."

Session Laws 2012-165, s. 1, effective December 1, 2012, added the subsection (a) designation; deleted the last sentence in subsection (a), which formerly read: "All other kinds of murder, including that which shall be proximately caused by the unlawful distribution of opium or any synthetic or natural salt, compound, derivative, or preparation of opium, or cocaine or other substance described in G.S. 90-90(1)d., or methamphetamine, when the ingestion of such substance causes the death of the user, shall be deemed murder in the second degree, and any person who commits such murder shall be punished as a Class B2 felon."; and added subsection (b). For applicability, see editor's note.

Session Laws 2013-47, s. 2, effective December 1, 2013, added subsection (c). For effective date and applicability, see Editor's note.

Session Laws 2013-410, s. 3(a), effective August 23, 2013, substituted "in accordance with Part 2A of Article 81B of Chapter 15A of the General Statutes" for "with imprisonment in the State's prison for life without parole" at the end of subsection (a).

Session Laws 2017-94, s. 1, added subsection (a1); and inserted "or (a1)" in the first sentence of subsection (b). For effective date and applicability, see editor's note.

Session Laws 2017-115, s. 9, rewrote subdivision (b)(2), which read: "The murder is one that was proximately caused by the unlawful distribution of opium or any synthetic or natural salt, compound, derivative, or preparation of opium, or cocaine or other substance described in G.S. 90-90(1)d., or methamphetamine, and the ingestion of such substance caused the death of the user." For effective date and applicability, see editor's note.

Legal Periodicals. - For brief comment on the argument of counsel as to the death penalty, see 32 N.C.L. Rev. 438 (1954).

For note as to improper court response to spontaneous jury inquiry as to pardon and parole possibilities, see 33 N.C.L. Rev. 665 (1955).

For comment on homicide by fright, see 44 N.C.L. Rev. 844 (1966).

For case law survey as to homicide, see 45 N.C.L. Rev. 918 (1967).

For comment on the felony-murder doctrine, see 3 Wake Forest Intra. L. Rev. 20 (1967).

For article, "Capital Punishment and Life Imprisonment in North Carolina, 1946 to 1968: Implications for Abolition of the Death Penalty," see 6 Wake Forest Intra. L. Rev. 417 (1970).

For note on voluntariness of guilty pleas in plea-bargaining context, see 49 N.C.L. Rev. 795 (1971).

For comment, "An Historical Analysis of Mandatory Capital Punishment," see 7 N.C. Cent. L.J. 306 (1976).

For note on the burden of proof for affirmative defenses in homicide cases, see 12 Wake Forest L. Rev. 423 (1976).

For note on the erosion of the retreat rule and self-defense, see 12 Wake Forest L. Rev. 1093 (1976).

For survey of 1976 case law on constitutional law, see 55 N.C.L. Rev. 965 (1977).

For comment on the merger doctrine as a limitation on the felony-murder rule, see 13 Wake Forest L. Rev. 369 (1977).

For survey of 1977 law on criminal procedure, see 56 N.C.L. Rev. 983 (1978).

For survey of 1978 constitutional law, see 57 N.C.L. Rev. 958 (1979).

For survey of 1979 law on criminal procedure, see 58 N.C.L. Rev. 1404 (1980).

For comment on capital punishment and evolving standards of decency, see 16 Wake Forest L. Rev. 737 (1980).

For comment on capital sentencing statute, see 16 Wake Forest L. Rev. 765 (1980).

For comment on capital punishment in North Carolina, see 59 N.C.L. Rev. 911 (1981).

For survey of 1980 criminal law, see 59 N.C.L. Rev. 1123 (1981).

For survey of 1981 criminal law, see 60 N.C.L. Rev. 1289 (1982).

For note discussing the availability of the imperfect right of self-defense in homicide cases in light of State v. Norris, 303 N.C. 526, 279 S.E.2d 570 (1981), see 4 Campbell L. Rev. 427 (1982).

For article discussing shortcomings of the North Carolina homicide law, see 19 Wake Forest L. Rev. 331 (1983).

For note discussing North Carolina's capital sentencing procedure, see 62 N.C.L. Rev. 833 (1984).

For 1984 survey, "The Evolution of North Carolina's Comparative Proportionality Review in Capital Cases," see 63 N.C.L. Rev. 1146 (1985).

For article, "Prosecutorial Abuse of Peremptory Challenges in Death Penalty Litigation: Some Constitutional and Ethical Considerations," see 8 Campbell L. Rev. 71 (1985).

For note, "Murder and the Tort of Intentional Infliction of Emotional Distress," see 1986 Duke L.J. 572.

For survey of 1987 law on felony murder, see 65 N.C.L. Rev. 1220 (1987).

For survey of 1987 law on murder by poison, see 65 N.C.L. Rev. 1231 (1987).

For article, "Culpability, Dangerousness, and Harm: Balancing the Factors on Which Our Criminal Law Is Predicated," see 66 N.C.L. Rev. 283 (1988).

For note, "Overstepping Precedent? Tison v. Arizona Imposes the Death Penalty on Felony Murder Accomplices," see 66 N.C.L. Rev. 817 (1988).

For note, "Mercy Killing and Malice in North Carolina," see 66 N.C.L. Rev. 1160 (1988).

For note on the battered woman syndrome, see 11 Campbell L. Rev. 263 (1989).

For comment, "Ending the Continuous Reign of Terror: Sleeping Husbands, Battered Wives, and the Right of Self-Defense," see 24 Wake Forest L. Rev. 959 (1989).

For note, "State v. Thomas: The North Carolina Supreme Court Determines That There Are Lesser Included Offenses of Felony Murder," see 68 N.C. L. Rev. 1127 (1990).

For note, "State v. Beale and the Killing of a Viable Fetus: An Exercise in Statutory Construction and the Potential for Legislative Reform," see 68 N.C. L. Rev. 1144 (1990).

For note, "State v. Norman: Self-Defense Unavailable to Battered Women Who Kill Passive Abusers," see 68 N.C. L. Rev. 1159 (1990).

For comment, "Insanity Defense: Should the Shock of the Hayes Verdict Compel North Carolina to Fix What 'Ain't Broke'?", see 25 Wake Forest L. Rev. 547 (1990).

For article, "On Self-Defense, Imminence, and Women Who Kill Their Batterers," see 71 N.C.L. Rev. 371 (1993).

For note, "State v. Jennings: Public Fervor, the North Carolina Supreme Court, and Society's Ultimate Punishment," see 72 N.C.L. Rev. 1672 (1994).

For article, "Person or Thing - In Search of the Legal Status of a Fetus: A Survey of North Carolina Law," see 17 Campbell L. Rev. 169 (1995).

For article, "Was the First Woman Hanged in North Carolina a 'Battered spouse?'", see 19 Campbell L. Rev. 311 (1997).

For a note on judicial limitations on the attempted felony-murder rule, see 76 N.C.L. Rev. 2360 (1998).

For comment, "North Carolina's Unconstitutional Expansion of an Ancient Maxim: Using DWI Fatalities to Satisfy First Degree Felony Murder," see 22 Campbell L. Rev. 169 (1999).

For article, "Shaken Baby Syndrome as Felony Murder in North Carolina," see 34 Campbell L. Rev. 423 (2012).

CASE NOTES

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.

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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.

.

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.

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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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

C. INSANITY.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

D. INTOXICATION.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

E. PROVOCATION.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

F. SELF-DEFENSE.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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