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 N.C. App. LEXIS 1475 (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 N.C. App. LEXIS 1444 (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, 1966 U.S. Dist. LEXIS 6824 (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 N.C. LEXIS 1053 (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 N.C. LEXIS 616 (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 N.C. LEXIS 189 (1876); State v. Powell, 94 N.C. 920, 1886 N.C. LEXIS 171 (1886); State v. Brown, 253 N.C. 195, 116 S.E.2d 349, 1960 N.C. LEXIS 469 (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 N.C. LEXIS 170 (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. Miller, 94 N.C. 904, 1886 N.C. LEXIS 166 (1886); State v. Smith, 174 N.C. 804, 93 S.E. 910, 1917 N.C. LEXIS 215 (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, 1971 N.C. App. LEXIS 1506, cert. denied, 279 N.C. 350, 182 S.E.2d 582, 1971 N.C. LEXIS 793 (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 N.C. LEXIS 1362 (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 N.C. App. LEXIS 617 (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 N.C. App. LEXIS 1309 (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 N.C. LEXIS 114 (1857); State v. Nutt, 61 N.C. 20, 1866 N.C. LEXIS 34 (1866); State v. Long, 78 N.C. 571, 1878 N.C. LEXIS 280 (1878); State v. Massey, 103 N.C. 356, 9 S.E. 632, 1889 N.C. LEXIS 120 (1889); State v. Biggers, 108 N.C. 760, 12 S.E. 1024, 1891 N.C. LEXIS 137 (1891); State v. Perkins, 141 N.C. 797, 53 S.E. 735, 1906 N.C. LEXIS 163 (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 N.C. LEXIS 199 (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 N.C. LEXIS 244 (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 N.C. App. LEXIS 781 (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, 1969 U.S. Dist. LEXIS 9581 (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 N.C. LEXIS 244 (1878); State v. Miller, 94 N.C. 904, 1886 N.C. LEXIS 166 (1886); State v. Farrington, 141 N.C. 844, 53 S.E. 954, 1906 N.C. LEXIS 172 (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 N.C. LEXIS 220 (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 N.C. LEXIS 154 (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 N.C. LEXIS 291 (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 N.C. App. LEXIS 78 (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 N.C. App. LEXIS 135 (1996), cert. denied, 483 S.E.2d 180, 1997 N.C. LEXIS 90 (1997).

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 N.C. LEXIS 1596 (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 N.C. App. LEXIS 2324 (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 N.C. LEXIS 614 (1949); State v. Mann, 77 N.C. App. 654, 335 S.E.2d 772, 1985 N.C. App. LEXIS 4185 (1985), aff'd in part and rev'd in part, 317 N.C. 164, 345 S.E.2d 365, 1986 N.C. LEXIS 2781 (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 N.C. LEXIS 1596 (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 N.C. LEXIS 2415 (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 N.C. LEXIS 2415 (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 N.C. LEXIS 2415 (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, 1982 U.S. App. LEXIS 18255 (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 N.C. LEXIS 112 (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 N.C. App. LEXIS 3929 (1985), rev'd, 317 N.C. 557, 346 S.E.2d 470, 1986 N.C. LEXIS 2415 (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 N.C. LEXIS 1596 (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 N.C. LEXIS 215 (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 N.C. App. LEXIS 276 (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 N.C. LEXIS 302 (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 N.C. LEXIS 469 (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 N.C. App. LEXIS 1309 (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 N.C. LEXIS 644 (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, 1977 N.C. App. LEXIS 1977, cert. denied, 292 N.C. 643, 235 S.E.2d 64, 1977 N.C. LEXIS 1165 (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 N.C. LEXIS 112 (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 N.C. LEXIS 614 (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 N.C. LEXIS 1596 (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 N.C. LEXIS 510 (1956); State v. Mann, 77 N.C. App. 654, 335 S.E.2d 772, 1985 N.C. App. LEXIS 4185 (1985), aff'd in part and rev'd in part, 317 N.C. 164, 345 S.E.2d 365, 1986 N.C. LEXIS 2781 (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 N.C. LEXIS 727 (1964), overruled, State v. Hurst, 320 N.C. 589, 359 S.E.2d 776, 1987 N.C. LEXIS 2356 (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 N.C. App. LEXIS 1506 (1969).

An attempt to commit robbery is an infamous crime. State v. Best, 11 N.C. App. 286, 181 S.E.2d 138, 1971 N.C. App. LEXIS 1506, cert. denied, 279 N.C. 350, 182 S.E.2d 582, 1971 N.C. LEXIS 793 (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 N.C. App. LEXIS 4185 (1985), aff'd in part and rev'd in part, 317 N.C. 164, 345 S.E.2d 365, 1986 N.C. LEXIS 2781 (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 N.C. LEXIS 2781 (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 N.C. App. LEXIS 2324 (1975).

Solicitation to commit murder constitutes an “infamous” offense. United States v. MacCloskey, 682 F.2d 468, 1982 U.S. App. LEXIS 18255 (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 N.C. LEXIS 291 (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 N.C. LEXIS 308 (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 N.C. LEXIS 1063 (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, 270 N.C. App. 300, 840 S.E.2d 850, 2020 N.C. App. LEXIS 171 (2020), aff'd, 376 N.C. 846, 855 S.E.2d 162, 2021- NCSC-19, 2021 N.C. LEXIS 170 (2021).

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 N.C. LEXIS 9 (1938); State v. Mintz, 242 N.C. 761, 89 S.E.2d 463, 1955 N.C. LEXIS 678 (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 N.C. LEXIS 1272 (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 N.C. App. LEXIS 3474 (1980), cert. denied, 302 N.C. 633, 280 S.E.2d 451, 1981 N.C. LEXIS 1264 (1981); State v. Mann, 77 N.C. App. 654, 335 S.E.2d 772, 1985 N.C. App. LEXIS 4185 (1985), aff'd in part and rev'd in part, 317 N.C. 164, 345 S.E.2d 365, 1986 N.C. LEXIS 2781 (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 N.C. App. LEXIS 3189 (1982).

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 N.C. App. LEXIS 653 (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 N.C. LEXIS 2415 (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 N.C. App. LEXIS 135 (1996), cert. denied, 483 S.E.2d 180, 1997 N.C. LEXIS 90 (1997).

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 N.C. App. LEXIS 810 (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, 376 N.C. 846, 855 S.E.2d 162, 2021- NCSC-19, 2021 N.C. LEXIS 170 (2021).

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 N.C. LEXIS 659 (1996), cert. denied, 521 U.S. 1124, 117 S. Ct. 2521, 138 L. Ed. 2d 1022, 1997 U.S. LEXIS 4140 (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 N.C. LEXIS 92 (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 N.C. LEXIS 1192 (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, 1976 N.C. App. LEXIS 2540, rev'd, 291 N.C. 253, 230 S.E.2d 390, 1976 N.C. LEXIS 970 (1976).

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 N.C. LEXIS 30 (1845); State v. Jones, 101 N.C. 719, 8 S.E. 147, 1888 N.C. LEXIS 129 (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 N.C. LEXIS 129 (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 N.C. LEXIS 966 (1967); State v. Philyaw, 291 N.C. 312, 230 S.E.2d 370, 1976 N.C. LEXIS 976 (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. Shepard v. Railroad, 140 N.C. 391, 53 S.E. 137, 1906 N.C. LEXIS 8 (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 N.C. App. LEXIS 3587 (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 N.C. App. LEXIS 638 (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 N.C. LEXIS 659 (1996), cert. denied, 521 U.S. 1124, 117 S. Ct. 2521, 138 L. Ed. 2d 1022, 1997 U.S. LEXIS 4140 (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 N.C. LEXIS 1673 (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 N.C. App. LEXIS 3587 (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 N.C. App. LEXIS 1476 (2012), rev'd, 367 N.C. 696, 766 S.E.2d 280, 2014 N.C. LEXIS 946 (2014).

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 N.C. App. LEXIS 829 (1990).

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 N.C. App. LEXIS 276 (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 N.C. LEXIS 1120 (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 N.C. LEXIS 1120 (1983).

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 N.C. LEXIS 735 (1970); State v. Wiggins, 16 N.C. App. 527, 192 S.E.2d 680, 1972 N.C. App. LEXIS 1752 (1972); State v. Squire, 292 N.C. 494, 234 S.E.2d 563, 1977 N.C. LEXIS 1134, cert. denied, 434 U.S. 998, 98 S. Ct. 638, 54 L. Ed. 2d 493, 1977 U.S. LEXIS 4325 (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, 1976 N.C. App. LEXIS 2540, rev'd, 291 N.C. 253, 230 S.E.2d 390, 1976 N.C. LEXIS 970 (1976).

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, 1976 N.C. App. LEXIS 2540, rev'd, 291 N.C. 253, 230 S.E.2d 390, 1976 N.C. LEXIS 970 (1976).

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 N.C. App. LEXIS 2120 (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, 1977 N.C. LEXIS 1172, cert. denied, 434 U.S. 924, 98 S. Ct. 402, 54 L. Ed. 2d 281, 1977 U.S. LEXIS 3781 (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, 1977 N.C. LEXIS 1172, cert. denied, 434 U.S. 924, 98 S. Ct. 402, 54 L. Ed. 2d 281, 1977 U.S. LEXIS 3781 (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 N.C. App. LEXIS 2994 (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 N.C. App. LEXIS 638 (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 N.C. App. LEXIS 638 (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 N.C. App. LEXIS 638 (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 N.C. LEXIS 405 (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 N.C. LEXIS 648 (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 N.C. LEXIS 648 (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 N.C. App. LEXIS 1962 (1974), cert. denied, 287 N.C. 261, 214 S.E.2d 434, 1975 N.C. LEXIS 1104 (1975).

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 N.C. LEXIS 735 (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 N.C. LEXIS 735 (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 N.C. LEXIS 735 (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 N.C. App. LEXIS 2864 (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 N.C. LEXIS 1100 (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 N.C. App. LEXIS 2248 (1986), rev'd, 320 N.C. 626, 359 S.E.2d 774, 1987 N.C. LEXIS 2328 (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 N.C. LEXIS 1260 (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, 1997 N.C. LEXIS 181, cert. denied, 522 U.S. 900, 118 S. Ct. 248, 139 L. Ed. 2d 177, 1997 U.S. LEXIS 5901 (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 N.C. LEXIS 1121 (1976), cert. denied, 429 U.S. 1093, 97 S. Ct. 1106, 51 L. Ed. 2d 539, 1977 U.S. LEXIS 673 (1977); State v. Philyaw, 291 N.C. 312, 230 S.E.2d 370, 1976 N.C. LEXIS 976 (1976); State v. Sauls, 291 N.C. 253, 230 S.E.2d 390, 1976 N.C. LEXIS 970 (1976), cert. denied, 431 U.S. 916, 97 S. Ct. 2178, 53 L. Ed. 2d 226, 1977 U.S. LEXIS 1788 (1977); State v. Saults, 294 N.C. 722, 242 S.E.2d 801, 1978 N.C. LEXIS 1300 (1978); State v. Woods, 307 N.C. 213, 297 S.E.2d 574, 1982 N.C. LEXIS 1673 (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 N.C. LEXIS 567 (1961); State v. Benton, 275 N.C. 378, 167 S.E.2d 775, 1969 N.C. LEXIS 408 (1969); State v. Chavis, 24 N.C. App. 148, 210 S.E.2d 555, 1974 N.C. App. LEXIS 1962 (1974), cert. denied, 287 N.C. 261, 214 S.E.2d 434, 1975 N.C. LEXIS 1104 (1975); State v. Branch, 288 N.C. 514, 220 S.E.2d 495, 1975 N.C. LEXIS 1030 (1975), cert. denied, 433 U.S. 907, 97 S. Ct. 2971, 53 L. Ed. 2d 1091, 1977 U.S. LEXIS 2580 (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 N.C. LEXIS 2088 (1987) (disavowing statement to the contrary in) State v. Hunter, 290 N.C. 556, 227 S.E.2d 535, 1976 N.C. LEXIS 1121 (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 N.C. LEXIS 2088 (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 N.C. LEXIS 287 (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 N.C. App. LEXIS 2120 (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, 1791 N.C. LEXIS 18 (1791).

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 N.C. LEXIS 2088 (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 N.C. LEXIS 2088 (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 N.C. App. LEXIS 2673 (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 N.C. App. LEXIS 1752 (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 N.C. App. LEXIS 1473 (1973), cert. denied, 284 N.C. 622, 202 S.E.2d 278, 1974 N.C. LEXIS 1327 (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 N.C. App. LEXIS 2864 (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 N.C. App. LEXIS 2864 (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 N.C. App. LEXIS 2275 (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 N.C. LEXIS 25 (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 N.C. App. LEXIS 638 (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 N.C. App. LEXIS 363 (1988), overruled, State v. Barnes, 324 N.C. 539, 380 S.E.2d 118, 1989 N.C. LEXIS 293 (1989).

III.Practice and Procedure

A.In General

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, 1982 N.C. LEXIS 1259, cert. denied, 457 U.S. 1138, 102 S. Ct. 2969, 73 L. Ed. 2d 1356, 1982 U.S. LEXIS 2729 (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 N.C. LEXIS 129 (1888); State v. Walton, 186 N.C. 485, 119 S.E. 886, 1923 N.C. LEXIS 279 (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 N.C. LEXIS 966 (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 N.C. LEXIS 408 (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 N.C. LEXIS 129 (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 N.C. App. LEXIS 459 (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 N.C. LEXIS 279 (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 N.C. App. LEXIS 459 (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 N.C. App. LEXIS 1922 (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 N.C. LEXIS 1056 (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 N.C. LEXIS 242 (1995).

B.Indictment

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 N.C. LEXIS 1300 (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 N.C. App. LEXIS 2689 (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 N.C. LEXIS 1512 (1985).

C.Evidence

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 N.C. LEXIS 82 (1828).

But not until judgment has been rendered on the verdict. State v. Duncan, 28 N.C. 98, 1845 N.C. LEXIS 30 (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 N.C. LEXIS 334 (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 N.C. App. LEXIS 1931 (2003), aff'd, 359 N.C. 246, 607 S.E.2d 599, 2005 N.C. LEXIS 30 (2005).

D.Instructions

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 N.C. App. LEXIS 2345 (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 N.C. App. LEXIS 1476 (2012), rev'd, 367 N.C. 696, 766 S.E.2d 280, 2014 N.C. LEXIS 946 (2014).

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 N.C. LEXIS 946 (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 N.C. App. LEXIS 1476 (2012), rev'd, 367 N.C. 696, 766 S.E.2d 280, 2014 N.C. LEXIS 946 (2014).

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 N.C. App. LEXIS 1476 (2012), rev'd, 367 N.C. 696, 766 S.E.2d 280, 2014 N.C. LEXIS 946 (2014).

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 N.C. App. LEXIS 3587 (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 N.C. LEXIS 1176 (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 N.C. LEXIS 616 (2000), cert. denied, 531 U.S. 1165, 121 S. Ct. 1126, 148 L. Ed. 2d 992, 2001 U.S. LEXIS 1416 (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 N.C. App. LEXIS 455 (1990), aff'd, 329 N.C. 128, 404 S.E.2d 822, 1991 N.C. LEXIS 405 (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 N.C. LEXIS 2088 (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 N.C. LEXIS 466 (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 N.C. App. LEXIS 1547 (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 N.C. LEXIS 945 (2017).

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 N.C. LEXIS 531 (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 N.C. App. LEXIS 622 (1999), aff'd in part and rev'd in part, 353 N.C. 159, 538 S.E.2d 917, 2000 N.C. LEXIS 894 (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 N.C. LEXIS 735 (1970); State v. Talbert, 282 N.C. 718, 194 S.E.2d 822, 1973 N.C. LEXIS 1155 (1973); State v. Watkins, 283 N.C. 17, 194 S.E.2d 800, 1973 N.C. LEXIS 894, cert. denied, 414 U.S. 1000, 94 S. Ct. 353, 38 L. Ed. 2d 235, 1973 U.S. LEXIS 1220 (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 N.C. LEXIS 648 (1994), cert. denied, 514 U.S. 1071, 115 S. Ct. 1708, 131 L. Ed. 2d 569, 1995 U.S. LEXIS 2732 (1995), overruled, State v. Richardson, 341 N.C. 585, 461 S.E.2d 724, 1995 N.C. LEXIS 413 (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 N.C. LEXIS 648 (1994), cert. denied, 514 U.S. 1071, 115 S. Ct. 1708, 131 L. Ed. 2d 569, 1995 U.S. LEXIS 2732 (1995), overruled, State v. Richardson, 341 N.C. 585, 461 S.E.2d 724, 1995 N.C. LEXIS 413 (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, 1987 N.C. LEXIS 2180, cert. denied, 484 U.S. 970, 108 S. Ct. 467, 98 L. Ed. 2d 406, 1987 U.S. LEXIS 5019 (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 N.C. LEXIS 455 (1942).

For history of this section, see State v. Kirksey, 227 N.C. 445, 42 S.E.2d 613, 1947 N.C. LEXIS 455 (1947); State v. Davis, 305 N.C. 400, 290 S.E.2d 574, 1982 N.C. LEXIS 1348 (1982); State v. Strickland, 307 N.C. 274, 298 S.E.2d 645, 1983 N.C. LEXIS 1078 (1983), overruled in part, State v. Johnson, 317 N.C. 193, 344 S.E.2d 775, 1986 N.C. LEXIS 2794 (1986).

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 N.C. LEXIS 393 (1969), rev'd, 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 N.C. LEXIS 335 (1969), rev'd, 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 N.C. LEXIS 664 (1970), rev'd, 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 N.C. App. LEXIS 1506 (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 N.C. LEXIS 664 (1970), rev'd, 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 N.C. App. LEXIS 1506 (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 N.C. LEXIS 132 (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 N.C. LEXIS 132 (1899); State v. Dalton, 178 N.C. 779, 101 S.E. 548, 1919 N.C. LEXIS 557 (1919), dismissed, 185 N.C. 606, 115 S.E. 881, 1923 N.C. LEXIS 124 (1923), dismissed, Jackson v. Mills, 185 N.C. 53, 115 S.E. 881, 1923 N.C. LEXIS 13 (1923); State v. Streeton, 231 N.C. 301, 56 S.E.2d 649, 1949 N.C. LEXIS 526 (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 N.C. LEXIS 526 (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 N.C. LEXIS 324 (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 N.C. LEXIS 1349 (1982), overruled, State v. Taylor, 337 N.C. 597, 447 S.E.2d 360, 1994 N.C. LEXIS 496 (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 N.C. App. LEXIS 2723 (1976); State v. Perdue, 320 N.C. 51, 357 S.E.2d 345, 1987 N.C. LEXIS 2179 (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, 1987 N.C. App. LEXIS 2638 (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 N.C. LEXIS 2179 (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 N.C. LEXIS 861 (1977); State v. Head, 79 N.C. App. 1, 338 S.E.2d 908, 1986 N.C. App. LEXIS 1991 (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 N.C. LEXIS 1091 (1971); State v. McCall, 286 N.C. 472, 212 S.E.2d 132, 1975 N.C. LEXIS 1243 (1975); State v. Furr, 292 N.C. 711, 235 S.E.2d 193, 1977 N.C. LEXIS 1172, cert. denied, 434 U.S. 924, 98 S. Ct. 402, 54 L. Ed. 2d 281, 1977 U.S. LEXIS 3781 (1977); State v. Hooper, 79 N.C. App. 93, 339 S.E.2d 70, 1986 N.C. App. LEXIS 1989 (1986), writ denied, 316 N.C. 198, 341 S.E.2d 574, 1986 N.C. LEXIS 2028 (1986), rev'd, 318 N.C. 680, 351 S.E.2d 286, 1987 N.C. LEXIS 1821 (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 N.C. LEXIS 749 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761, 1972 U.S. LEXIS 1952 (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 N.C. LEXIS 974 (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 N.C. LEXIS 1017 (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 N.C. LEXIS 888 (1978).

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 N.C. LEXIS 246 (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 N.C. LEXIS 477 (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 N.C. App. LEXIS 1290 (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 N.C. LEXIS 76 (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, 1977 N.C. LEXIS 1172, cert. denied, 434 U.S. 924, 98 S. Ct. 402, 54 L. Ed. 2d 281, 1977 U.S. LEXIS 3781 (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 N.C. LEXIS 735 (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 N.C. LEXIS 735 (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 N.C. LEXIS 242 (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 N.C. LEXIS 297 (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 N.C. LEXIS 670 (1992), overruled, State v. Lynch, 334 N.C. 402, 432 S.E.2d 349, 1993 N.C. LEXIS 337 (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, 1977 N.C. LEXIS 1172, cert. denied, 434 U.S. 924, 98 S. Ct. 402, 54 L. Ed. 2d 281, 1977 U.S. LEXIS 3781 (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 N.C. LEXIS 2787 (1986); State v. Davis, 319 N.C. 620, 356 S.E.2d 340, 1987 N.C. LEXIS 2088 (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 N.C. LEXIS 2088 (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 N.C. LEXIS 735 (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 N.C. LEXIS 2786 (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 N.C. LEXIS 2566 (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 N.C. LEXIS 2784 (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 N.C. LEXIS 197 (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 N.C. LEXIS 197 (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 N.C. App. LEXIS 1405 (2000).

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 N.C. LEXIS 21 (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 N.C. LEXIS 535 (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 N.C. LEXIS 535 (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, 2006 N.C. App. LEXIS 521 (2006), cert. dismissed, 365 N.C. 334, 2011 N.C. LEXIS 1167 (2011).

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 N.C. LEXIS 46 (2006), cert. denied, 549 U.S. 1000, 127 S. Ct. 505, 166 L. Ed. 2d 378, 2006 U.S. LEXIS 8127 (2006), writ denied, 364 N.C. 437, 702 S.E.2d 498, 2010 N.C. LEXIS 762 (2010).

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, 2006 U.S. App. LEXIS 11591 (4th Cir.), cert. denied, 549 U.S. 1098, 127 S. Ct. 834, 166 L. Ed. 2d 669, 2006 U.S. LEXIS 9512 (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, 2006 U.S. App. LEXIS 11591 (4th Cir.), cert. denied, 549 U.S. 1098, 127 S. Ct. 834, 166 L. Ed. 2d 669, 2006 U.S. LEXIS 9512 (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 N.C. App. LEXIS 360 (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, 268 N.C. App. 603, 836 S.E.2d 917, 2019 N.C. App. LEXIS 974 (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 N.C. App. LEXIS 1823 (2007).

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 N.C. LEXIS 184 (1938); State v. Hawkins, 214 N.C. 326, 199 S.E. 284, 1938 N.C. LEXIS 339 (1938); State v. Starnes, 220 N.C. 384, 17 S.E.2d 346, 1941 N.C. LEXIS 543 (1941); State v. Chavis, 231 N.C. 307, 56 S.E.2d 678, 1949 N.C. LEXIS 533 (1949); State v. Lamm, 232 N.C. 402, 61 S.E.2d 188, 1950 N.C. LEXIS 542 (1950); State v. Brown, 249 N.C. 271, 106 S.E.2d 232, 1958 N.C. LEXIS 472 (1958); State v. Downey, 253 N.C. 348, 117 S.E.2d 39, 1960 N.C. LEXIS 663 (1960); State v. Faust, 254 N.C. 101, 118 S.E.2d 769, 1961 N.C. LEXIS 412, cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49, 1961 U.S. LEXIS 646 (1961); State v. Moore, 275 N.C. 198, 166 S.E.2d 652, 1969 N.C. LEXIS 375 (1969); State v. Robbins, 275 N.C. 537, 169 S.E.2d 858, 1969 N.C. LEXIS 436 (1969); State v. Reams, 277 N.C. 391, 178 S.E.2d 65, 1970 N.C. LEXIS 623 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74, 1971 U.S. LEXIS 1117 (1971), overruled, State v. Worsley, 336 N.C. 268, 443 S.E.2d 68, 1994 N.C. LEXIS 233 (1994); State v. Duboise, 279 N.C. 73, 181 S.E.2d 393, 1971 N.C. LEXIS 752 (1971); State v. Fountain, 282 N.C. 58, 191 S.E.2d 674, 1972 N.C. LEXIS 886 (1972); State v. Hamilton, 19 N.C. App. 436, 199 S.E.2d 159, 1973 N.C. App. LEXIS 1675, cert. denied, 284 N.C. 256, 200 S.E.2d 656, 1973 N.C. LEXIS 850 (1973); State v. Sparks, 285 N.C. 631, 207 S.E.2d 712, 1974 N.C. LEXIS 1065 (1974), vacated, 428 U.S. 905, 96 S. Ct. 3213, 49 L. Ed. 2d 1212, 1976 U.S. LEXIS 2265 (1976); State v. McLaughlin, 286 N.C. 597, 213 S.E.2d 238, 1975 N.C. LEXIS 1267 (1975), vacated in part, 428 U.S. 903, 96 S. Ct. 3206, 29 L. Ed. 2d 1208, 1976 U.S. LEXIS 4202 (1976); State v. Patterson, 288 N.C. 553, 220 S.E.2d 600, 1975 N.C. LEXIS 1031 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1211, 1976 U.S. LEXIS 4216 (1976); State v. Davis, 289 N.C. 500, 223 S.E.2d 296, 1976 N.C. LEXIS 1326, vacated in part, 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 N.C. LEXIS 1327, vacated in part, 429 U.S. 912, 97 S. Ct. 301, 50 L. Ed. 2d 278, 1976 U.S. LEXIS 3242 (1976); State v. Smith, 290 N.C. 148, 226 S.E.2d 10, 1976 N.C. LEXIS 1048, 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 N.C. LEXIS 1093 (1977); State v. Cates, 293 N.C. 462, 238 S.E.2d 465, 1977 N.C. LEXIS 972 (1977); State v. Thomas, 294 N.C. 105, 240 S.E.2d 426, 1978 N.C. LEXIS 1189 (1978); State v. Hill, 294 N.C. 320, 240 S.E.2d 794, 1978 N.C. LEXIS 1239 (1978); State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978); State v. Fleming, 296 N.C. 559, 251 S.E.2d 430, 1979 N.C. LEXIS 1198 (1979); State v. Martin, 303 N.C. 246, 278 S.E.2d 214, 1981 N.C. LEXIS 1106, cert. denied, 454 U.S. 933, 102 S. Ct. 431, 70 L. Ed. 2d 240 (1981); State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788, 1981 N.C. LEXIS 1186 (1981); State v. Norris, 303 N.C. 526, 279 S.E.2d 570, 1981 N.C. LEXIS 1188 (1981); State v. Misenheimer, 304 N.C. 108, 282 S.E.2d 791, 1981 N.C. LEXIS 1334 (1981), overruled in part, State v. Weaver, 306 N.C. 629, 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982); State v. Marshall, 304 N.C. 167, 282 S.E.2d 422, 1981 N.C. LEXIS 1327 (1981); State v. Calloway, 305 N.C. 747, 291 S.E.2d 622, 1982 N.C. LEXIS 1377 (1982); State v. Russell Council Judge, 308 N.C. 658, 303 S.E.2d 817, 1983 N.C. LEXIS 1303 (1983); State v. Hamlet, 312 N.C. 162, 321 S.E.2d 837, 1984 N.C. LEXIS 1801 (1984); State v. Huffstetler, 312 N.C. 92, 322 S.E.2d 110, 1984 N.C. LEXIS 1799 (1984), cert. denied, 471 U.S. 1009, 105 S. Ct. 1877, 85 L. Ed. 2d 169, 1985 U.S. LEXIS 282 (1985); State v. Brown, 315 N.C. 40, 337 S.E.2d 808, 1985 N.C. LEXIS 1987 (1985), cert. denied, 476 U.S. 1165, 106 S. Ct. 2293, 90 L. Ed. 2d 733, 1986 U.S. LEXIS 1726 (1986), overruled, State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373, 1988 N.C. LEXIS 111 (1988); State v. Gladden, 315 N.C. 398, 340 S.E.2d 673, 1986 N.C. LEXIS 1885, cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166, 1986 U.S. LEXIS 4138 (1986); State v. Rogers, 316 N.C. 203, 341 S.E.2d 713, 1986 N.C. LEXIS 2137 (1986), overruled in part, State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373, 1988 N.C. LEXIS 111 (1988), overruled, State v. Gaines, 345 N.C. 647, 483 S.E.2d 396, 1997 N.C. LEXIS 181 (1997); State v. Jackson, 317 N.C. 1, 343 S.E.2d 814, 1986 N.C. LEXIS 2425 (1986), vacated, 479 U.S. 1077, 107 S. Ct. 1271, 94 L. Ed. 2d 133, 1987 U.S. LEXIS 601 (1987), overruled in part, State v. Abbott, 320 N.C. 475, 358 S.E.2d 365, 1987 N.C. LEXIS 2296 (1987); State v. Saunders, 317 N.C. 308, 345 S.E.2d 212, 1986 N.C. LEXIS 2780 (1986); State v. Fisher, 318 N.C. 512, 350 S.E.2d 334, 1986 N.C. LEXIS 2738 (1986); State v. Bonney, 329 N.C. 61, 405 S.E.2d 145, 1991 N.C. LEXIS 420 (1991); State v. Geddie, 345 N.C. 73, 478 S.E.2d 146, 1996 N.C. LEXIS 649 (1996).

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, 1970 N.C. LEXIS 735 (1970).

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 N.C. LEXIS 1327 (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 N.C. LEXIS 1078 (1983), overruled in part, State v. Johnson, 317 N.C. 193, 344 S.E.2d 775, 1986 N.C. LEXIS 2794 (1986).

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 N.C. LEXIS 737 (1970), vacated, 408 U.S. 937, 92 S. Ct. 2862, 33 L. Ed. 2d 754, 1972 U.S. LEXIS 1911 (1972); State v. Sanders, 276 N.C. 598, 174 S.E.2d 487, 1970 N.C. LEXIS 733 (1970), rev'd, 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 N.C. LEXIS 984 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1210, 1976 U.S. LEXIS 4211 (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 N.C. App. LEXIS 990 (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 N.C. LEXIS 313 (1904); State v. McDowell, 145 N.C. 563, 59 S.E. 690, 1907 N.C. LEXIS 332 (1907); State v. Van Landingham, 283 N.C. 589, 197 S.E.2d 539, 1973 N.C. LEXIS 1025 (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, 1973 N.C. App. LEXIS 1343, cert. denied, 283 N.C. 106, 194 S.E.2d 634, 1973 N.C. LEXIS 910 (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 N.C. LEXIS 407 (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 N.C. App. LEXIS 1305 (1998), cert. denied, 651 S.E.2d 225, 2007 N.C. LEXIS 883 (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 N.C. App. LEXIS 1476 (2012), rev'd, 367 N.C. 696, 766 S.E.2d 280, 2014 N.C. LEXIS 946 (2014).

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 N.C. LEXIS 85 (1907); State v. Stratford, 149 N.C. 483, 62 S.E. 882, 1908 N.C. LEXIS 380 (1908); State v. Van Landingham, 283 N.C. 589, 197 S.E.2d 539, 1973 N.C. LEXIS 1025 (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 N.C. LEXIS 1287 (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 N.C. LEXIS 317 (1905); State v. Wilkins, 158 N.C. 603, 73 S.E. 992, 1912 N.C. LEXIS 98 (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 N.C. App. LEXIS 1588 (1977), aff'd, 294 N.C. 299, 240 S.E.2d 449, 1978 N.C. LEXIS 1235 (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 N.C. LEXIS 970 (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 N.C. LEXIS 734 (1968), limited, State v. Hammonds, 290 N.C. 1, 224 S.E.2d 595, 1976 N.C. LEXIS 1018 (1976); State v. Robbins, 275 N.C. 537, 169 S.E.2d 858, 1969 N.C. LEXIS 436 (1969); State v. Sparks, 285 N.C. 631, 207 S.E.2d 712, 1974 N.C. LEXIS 1065 (1974), vacated, 428 U.S. 905, 96 S. Ct. 3213, 49 L. Ed. 2d 1212, 1976 U.S. LEXIS 2265 (1976); State v. McLaughlin, 286 N.C. 597, 213 S.E.2d 238, 1975 N.C. LEXIS 1267 (1975), vacated in part, 428 U.S. 903, 96 S. Ct. 3206, 29 L. Ed. 2d 1208, 1976 U.S. LEXIS 4202 (1976); State v. Cooper, 286 N.C. 549, 213 S.E.2d 305, 1975 N.C. LEXIS 1266 (1975); State v. Shepherd, 288 N.C. 346, 218 S.E.2d 176, 1975 N.C. LEXIS 982 (1975); State v. Hammonds, 290 N.C. 1, 224 S.E.2d 595, 1976 N.C. LEXIS 1018 (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 N.C. LEXIS 279 (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 N.C. LEXIS 1227 (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 N.C. App. LEXIS 1504 (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 N.C. App. LEXIS 2487 (2005).

The act of killing, and the guilty intent, must concur to constitute the offense. State v. Scates, 50 N.C. 420, 1858 N.C. LEXIS 76 (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 N.C. LEXIS 1307 (1983); State v. Welch, 316 N.C. 578, 342 S.E.2d 789, 1986 N.C. LEXIS 2163 (1986), writ denied, 1998 N.C. LEXIS 515 (N.C. July 29, 1998).

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 N.C. LEXIS 608 (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 N.C. LEXIS 414 (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 N.C. LEXIS 414 (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 N.C. LEXIS 411 (1917); State v. Benson, 183 N.C. 795, 111 S.E. 869, 1922 N.C. LEXIS 373 (1922), overruled, State v. Phillips, 264 N.C. 508, 142 S.E.2d 337, 1965 N.C. LEXIS 1227 (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 N.C. LEXIS 415 (1917); State v. Cain, 178 N.C. 724, 100 S.E. 884, 1919 N.C. LEXIS 547 (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 N.C. LEXIS 375 (1969); State v. Martin, 303 N.C. 246, 278 S.E.2d 214, 1981 N.C. LEXIS 1106, cert. denied, 454 U.S. 933, 102 S. Ct. 431, 70 L. Ed. 2d 240 (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 N.C. LEXIS 323 (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 N.C. LEXIS 186 (1896); State v. Barrett, 142 N.C. 565, 54 S.E. 856, 1906 N.C. LEXIS 289 (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 N.C. LEXIS 1334 (1981), overruled in part, State v. Weaver, 306 N.C. 629, 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982).

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 N.C. LEXIS 1334 (1981), overruled in part, State v. Weaver, 306 N.C. 629, 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982).

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 N.C. LEXIS 445 (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, 1977 N.C. App. LEXIS 1585, cert. denied, 293 N.C. 591, 238 S.E.2d 151, 1977 N.C. LEXIS 998 (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 N.C. LEXIS 1229 (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 N.C. App. LEXIS 2583 (2005), vacated in part, 361 N.C. 156, 696 S.E.2d 524, 2006 N.C. LEXIS 1412 (2006).

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 N.C. App. LEXIS 765 (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 N.C. LEXIS 894 (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 N.C. LEXIS 162 (1909); State v. Baldwin, 152 N.C. 822, 68 S.E. 148, 1910 N.C. LEXIS 389 (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 N.C. LEXIS 132 (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 N.C. LEXIS 1266 (1975); Barfield v. Harris, 540 F. Supp. 451, 1982 U.S. Dist. LEXIS 12690 (E.D.N.C. 1982), aff'd, 719 F.2d 58, 1983 U.S. App. LEXIS 16325 (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 N.C. LEXIS 17 (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 N.C. LEXIS 18 (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 N.C. LEXIS 264 (1929); State v. Perry, 209 N.C. 604, 184 S.E. 545, 1936 N.C. LEXIS 307 (1936); State v. Floyd, 226 N.C. 571, 39 S.E.2d 598, 1946 N.C. LEXIS 274 (1946); State v. Propst, 274 N.C. 62, 161 S.E.2d 560, 1968 N.C. LEXIS 734 (1968), limited, State v. Hammonds, 290 N.C. 1, 224 S.E.2d 595, 1976 N.C. LEXIS 1018 (1976).

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, 1982 U.S. Dist. LEXIS 12690 (E.D.N.C. 1982), aff'd, 719 F.2d 58, 1983 U.S. App. LEXIS 16325 (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 N.C. LEXIS 244 (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 N.C. LEXIS 87 (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 N.C. LEXIS 420 (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 N.C. App. LEXIS 1305 (1998), cert. denied, 651 S.E.2d 225, 2007 N.C. LEXIS 883 (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 N.C. App. LEXIS 1305 (1998), cert. denied, 651 S.E.2d 225, 2007 N.C. LEXIS 883 (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 N.C. App. LEXIS 1907 (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 N.C. App. LEXIS 1313 (2013).

State introduced substantial evidence of undignified treatment and concealment of the victim’s body and efforts to destroy evidence of the brutal murder that supported a reasonable inference of premeditation and deliberation on the part of defendant; the body had been stripped naked, arranged in a fetal position, bound with duct tape and wrapped in three black trash bags before being transported to the grave and buried. N.C. v. Bradley, 279 N.C. App. 389, 864 S.E.2d 850, 2021- NCCOA-495, 2021 N.C. App. LEXIS 513 (2021).

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 N.C. LEXIS 370 (1946); State v. Benton, 276 N.C. 641, 174 S.E.2d 793, 1970 N.C. LEXIS 735 (1970).

Premeditation is a prior determination to do the act. State v. Cameron, 166 N.C. 379, 81 S.E. 748, 1914 N.C. LEXIS 411 (1914); State v. Bowser, 214 N.C. 249, 199 S.E. 31, 1938 N.C. LEXIS 313 (1938); State v. Hamilton, 19 N.C. App. 436, 199 S.E.2d 159, 1973 N.C. App. LEXIS 1675, cert. denied, 284 N.C. 256, 200 S.E.2d 656, 1973 N.C. LEXIS 850 (1973); State v. Baggett, 293 N.C. 307, 237 S.E.2d 827, 1977 N.C. LEXIS 935 (1977); State v. Poole, 298 N.C. 254, 258 S.E.2d 339, 1979 N.C. LEXIS 1356 (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 N.C. LEXIS 373 (1922), overruled, State v. Phillips, 264 N.C. 508, 142 S.E.2d 337, 1965 N.C. LEXIS 1227 (1965); State v. Hawkins, 214 N.C. 326, 199 S.E. 284, 1938 N.C. LEXIS 339 (1938); State v. Chavis, 231 N.C. 307, 56 S.E.2d 678, 1949 N.C. LEXIS 533 (1949); State v. Lamm, 232 N.C. 402, 61 S.E.2d 188, 1950 N.C. LEXIS 542 (1950); State v. Brown, 249 N.C. 271, 106 S.E.2d 232, 1958 N.C. LEXIS 472 (1958); State v. Faust, 254 N.C. 101, 118 S.E.2d 769, 1961 N.C. LEXIS 412, cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49, 1961 U.S. LEXIS 646 (1961); State v. Sanders, 276 N.C. 598, 174 S.E.2d 487, 1970 N.C. LEXIS 733 (1970), rev'd, 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 N.C. LEXIS 623 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74, 1971 U.S. LEXIS 1117 (1971), overruled, State v. Worsley, 336 N.C. 268, 443 S.E.2d 68, 1994 N.C. LEXIS 233 (1994); State v. Fountain, 282 N.C. 58, 191 S.E.2d 674, 1972 N.C. LEXIS 886 (1972); State v. Britt, 285 N.C. 256, 204 S.E.2d 817, 1974 N.C. LEXIS 968 (1974); State v. Bush, 289 N.C. 159, 221 S.E.2d 333, 1976 N.C. LEXIS 1239, 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, 1976 N.C. LEXIS 1326, vacated in part, 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, 1976 N.C. LEXIS 1048, 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 N.C. LEXIS 1093 (1977); State v. Cates, 293 N.C. 462, 238 S.E.2d 465, 1977 N.C. LEXIS 972 (1977); State v. Thomas, 294 N.C. 105, 240 S.E.2d 426, 1978 N.C. LEXIS 1189 (1978); State v. Hill, 294 N.C. 320, 240 S.E.2d 794, 1978 N.C. LEXIS 1239 (1978); State v. Barbour, 295 N.C. 66, 243 S.E.2d 380, 1978 N.C. LEXIS 946 (1978); State v. Corn, 303 N.C. 293, 278 S.E.2d 221, 1981 N.C. LEXIS 1105 (1981); State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788, 1981 N.C. LEXIS 1186 (1981); State v. Marshall, 304 N.C. 167, 282 S.E.2d 422, 1981 N.C. LEXIS 1327 (1981); State v. Calloway, 305 N.C. 747, 291 S.E.2d 622, 1982 N.C. LEXIS 1377 (1982); State v. Tysor, 307 N.C. 679, 300 S.E.2d 366, 1983 N.C. LEXIS 1113 (1983); State v. Lowery, 309 N.C. 763, 309 S.E.2d 232, 1983 N.C. LEXIS 1463 (1983); State v. Hamlet, 312 N.C. 162, 321 S.E.2d 837, 1984 N.C. LEXIS 1801 (1984); State v. Huffstetler, 312 N.C. 92, 322 S.E.2d 110, 1984 N.C. LEXIS 1799 (1984), cert. denied, 471 U.S. 1009, 105 S. Ct. 1877, 85 L. Ed. 2d 169, 1985 U.S. LEXIS 282 (1985); State v. Fields, 315 N.C. 191, 337 S.E.2d 518, 1985 N.C. LEXIS 2004 (1985); State v. Welch, 316 N.C. 578, 342 S.E.2d 789, 1986 N.C. LEXIS 2163 (1986), writ denied, 1998 N.C. LEXIS 515 (N.C. July 29, 1998); State v. Saunders, 317 N.C. 308, 345 S.E.2d 212, 1986 N.C. LEXIS 2780 (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 N.C. LEXIS 1334 (1981), overruled in part, State v. Weaver, 306 N.C. 629, 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982); State v. Truesdale, 340 N.C. 229, 456 S.E.2d 299, 1995 N.C. LEXIS 237 (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 N.C. LEXIS 391 (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 N.C. LEXIS 968 (1974); State v. Myers, 299 N.C. 671, 263 S.E.2d 768, 1980 N.C. LEXIS 996 (1980); State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788, 1981 N.C. LEXIS 1186 (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, 1976 N.C. LEXIS 1239, 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 N.C. LEXIS 373 (1922), overruled, State v. Phillips, 264 N.C. 508, 142 S.E.2d 337, 1965 N.C. LEXIS 1227 (1965); State v. Bowser, 214 N.C. 249, 199 S.E. 31, 1938 N.C. LEXIS 313 (1938); State v. Hawkins, 214 N.C. 326, 199 S.E. 284, 1938 N.C. LEXIS 339 (1938); State v. Chavis, 231 N.C. 307, 56 S.E.2d 678, 1949 N.C. LEXIS 533 (1949); State v. Lamm, 232 N.C. 402, 61 S.E.2d 188, 1950 N.C. LEXIS 542 (1950); State v. Brown, 249 N.C. 271, 106 S.E.2d 232, 1958 N.C. LEXIS 472 (1958); State v. Faust, 254 N.C. 101, 118 S.E.2d 769, 1961 N.C. LEXIS 412, cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49, 1961 U.S. LEXIS 646 (1961); State v. Reams, 277 N.C. 391, 178 S.E.2d 65, 1970 N.C. LEXIS 623 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74, 1971 U.S. LEXIS 1117 (1971), overruled, State v. Worsley, 336 N.C. 268, 443 S.E.2d 68, 1994 N.C. LEXIS 233 (1994); State v. Fountain, 282 N.C. 58, 191 S.E.2d 674, 1972 N.C. LEXIS 886 (1972); State v. Hamilton, 19 N.C. App. 436, 199 S.E.2d 159, 1973 N.C. App. LEXIS 1675, cert. denied, 284 N.C. 256, 200 S.E.2d 656, 1973 N.C. LEXIS 850 (1973); State v. Barbour, 295 N.C. 66, 243 S.E.2d 380, 1978 N.C. LEXIS 946 (1978); State v. Poole, 298 N.C. 254, 258 S.E.2d 339, 1979 N.C. LEXIS 1356 (1979); State v. Forrest, 321 N.C. 186, 362 S.E.2d 252, 1987 N.C. LEXIS 2561 (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 N.C. LEXIS 733 (1970), rev'd, 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 N.C. LEXIS 1093 (1977); State v. Marshall, 304 N.C. 167, 282 S.E.2d 422, 1981 N.C. LEXIS 1327 (1981); State v. Bush, 307 N.C. 152, 297 S.E.2d 563, 1982 N.C. LEXIS 1670 (1982), limited, State v. Richardson, 341 N.C. 658, 462 S.E.2d 492, 1995 N.C. LEXIS 532 (1995); State v. Tysor, 307 N.C. 679, 300 S.E.2d 366, 1983 N.C. LEXIS 1113 (1983); State v. Russell Council Judge, 308 N.C. 658, 303 S.E.2d 817, 1983 N.C. LEXIS 1303 (1983); State v. Lowery, 309 N.C. 763, 309 S.E.2d 232, 1983 N.C. LEXIS 1463 (1983); State v. Hamlet, 312 N.C. 162, 321 S.E.2d 837, 1984 N.C. LEXIS 1801 (1984); State v. Huffstetler, 312 N.C. 92, 322 S.E.2d 110, 1984 N.C. LEXIS 1799 (1984), cert. denied, 471 U.S. 1009, 105 S. Ct. 1877, 85 L. Ed. 2d 169, 1985 U.S. LEXIS 282 (1985); State v. Brown, 315 N.C. 40, 337 S.E.2d 808, 1985 N.C. LEXIS 1987 (1985), cert. denied, 476 U.S. 1165, 106 S. Ct. 2293, 90 L. Ed. 2d 733, 1986 U.S. LEXIS 1726 (1986), overruled, State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373, 1988 N.C. LEXIS 111 (1988); State v. Gladden, 315 N.C. 398, 340 S.E.2d 673, 1986 N.C. LEXIS 1885, cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166, 1986 U.S. LEXIS 4138 (1986); State v. Barts, 316 N.C. 666, 343 S.E.2d 828, 1986 N.C. LEXIS 2395 (1986); State v. Fisher, 318 N.C. 512, 350 S.E.2d 334, 1986 N.C. LEXIS 2738 (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, 1976 N.C. LEXIS 1326, vacated in part, 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, 1976 N.C. LEXIS 1048, 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 N.C. LEXIS 972 (1977); State v. Thomas, 294 N.C. 105, 240 S.E.2d 426, 1978 N.C. LEXIS 1189 (1978); State v. Hill, 294 N.C. 320, 240 S.E.2d 794, 1978 N.C. LEXIS 1239 (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 N.C. LEXIS 436 (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 N.C. LEXIS 1105 (1981); State v. Calloway, 305 N.C. 747, 291 S.E.2d 622, 1982 N.C. LEXIS 1377 (1982); State v. Russell Council Judge, 308 N.C. 658, 303 S.E.2d 817, 1983 N.C. LEXIS 1303 (1983); State v. Myers, 309 N.C. 78, 305 S.E.2d 506, 1983 N.C. LEXIS 1307 (1983); State v. Welch, 316 N.C. 578, 342 S.E.2d 789, 1986 N.C. LEXIS 2163 (1986), writ denied, 1998 N.C. LEXIS 515 (N.C. July 29, 1998); State v. Saunders, 317 N.C. 308, 345 S.E.2d 212, 1986 N.C. LEXIS 2780 (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 N.C. LEXIS 237 (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 N.C. LEXIS 391 (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 N.C. App. LEXIS 1001 (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 N.C. LEXIS 968 (1974); State v. Marshall, 304 N.C. 167, 282 S.E.2d 422, 1981 N.C. LEXIS 1327 (1981); State v. Saunders, 317 N.C. 308, 345 S.E.2d 212, 1986 N.C. LEXIS 2780 (1986); State v. Fisher, 318 N.C. 512, 350 S.E.2d 334, 1986 N.C. LEXIS 2738 (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 N.C. LEXIS 420 (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 N.C. LEXIS 85 (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, 1973 N.C. App. LEXIS 1675, cert. denied, 284 N.C. 256, 200 S.E.2d 656, 1973 N.C. LEXIS 850 (1973); State v. Fields, 315 N.C. 191, 337 S.E.2d 518, 1985 N.C. LEXIS 2004 (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 N.C. LEXIS 1113 (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 N.C. LEXIS 1801 (1984); State v. Brown, 315 N.C. 40, 337 S.E.2d 808, 1985 N.C. LEXIS 1987 (1985), cert. denied, 476 U.S. 1165, 106 S. Ct. 2293, 90 L. Ed. 2d 733, 1986 U.S. LEXIS 1726 (1986), overruled, State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373, 1988 N.C. LEXIS 111 (1988); State v. Gladden, 315 N.C. 398, 340 S.E.2d 673, 1986 N.C. LEXIS 1885, cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166, 1986 U.S. LEXIS 4138 (1986); State v. Barts, 316 N.C. 666, 343 S.E.2d 828, 1986 N.C. LEXIS 2395 (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 N.C. LEXIS 1334 (1981), overruled in part, State v. Weaver, 306 N.C. 629, 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982).

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 N.C. LEXIS 1007 (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 N.C. LEXIS 1334 (1981), overruled in part, State v. Weaver, 306 N.C. 629, 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982).

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 N.C. LEXIS 1303 (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 N.C. LEXIS 218 (1917); State v. Holdsclaw, 180 N.C. 731, 105 S.E. 181, 1920 N.C. LEXIS 193 (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 N.C. LEXIS 186 (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 N.C. LEXIS 1334 (1981), overruled in part, State v. Weaver, 306 N.C. 629, 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982).

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 N.C. LEXIS 1303 (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 N.C. LEXIS 891 (1975), vacated in part, 428 U.S. 903, 96 S. Ct. 3208, 49 L. Ed. 2d 1209, 1976 U.S. LEXIS 4207 (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 N.C. LEXIS 436 (1969); State v. Myers, 299 N.C. 671, 263 S.E.2d 768, 1980 N.C. LEXIS 996 (1980); State v. Gladden, 315 N.C. 398, 340 S.E.2d 673, 1986 N.C. LEXIS 1885, cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166, 1986 U.S. LEXIS 4138 (1986); State v. Barts, 316 N.C. 666, 343 S.E.2d 828, 1986 N.C. LEXIS 2395 (1986); State v. Fisher, 318 N.C. 512, 350 S.E.2d 334, 1986 N.C. LEXIS 2738 (1986).

Deliberation and premeditation need not be of any perceptible length of time. State v. Bynum, 175 N.C. 777, 95 S.E. 101, 1918 N.C. LEXIS 154 (1918); State v. Burney, 215 N.C. 598, 3 S.E.2d 24, 1939 N.C. LEXIS 323 (1939); State v. Hammonds, 216 N.C. 235, 4 S.E.2d 439, 1939 N.C. LEXIS 131 (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 N.C. LEXIS 1186 (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 N.C. LEXIS 415 (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 N.C. LEXIS 477 (1969); State v. Perry, 276 N.C. 339, 172 S.E.2d 541, 1970 N.C. LEXIS 688 (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 N.C. LEXIS 1307 (1983); State v. Brown, 315 N.C. 40, 337 S.E.2d 808, 1985 N.C. LEXIS 1987 (1985), cert. denied, 476 U.S. 1165, 106 S. Ct. 2293, 90 L. Ed. 2d 733, 1986 U.S. LEXIS 1726 (1986), overruled, State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373, 1988 N.C. LEXIS 111 (1988).

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 N.C. LEXIS 1127 (1975), overruled in part, State v. Leach, 340 N.C. 236, 456 S.E.2d 785 (1995), overruled, State v. Leach, 340 N.C. 236, 456 S.E.2d 785, 1995 N.C. LEXIS 243 (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 N.C. LEXIS 1463 (1983); State v. Quesinberry, 319 N.C. 228, 354 S.E.2d 446, 1987 N.C. LEXIS 1929 (1987) (in light of) McKoy v. North Carolina, 1990 U.S. LEXIS 1179, 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 N.C. LEXIS 401 (1943); State v. Faust, 254 N.C. 101, 118 S.E.2d 769, 1961 N.C. LEXIS 412, cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49, 1961 U.S. LEXIS 646 (1961); State v. Walters, 275 N.C. 615, 170 S.E.2d 484, 1969 N.C. LEXIS 477 (1969); State v. Perry, 276 N.C. 339, 172 S.E.2d 541, 1970 N.C. LEXIS 688 (1970); State v. Sanders, 276 N.C. 598, 174 S.E.2d 487, 1970 N.C. LEXIS 733 (1970), rev'd, 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 N.C. LEXIS 970 (1972); State v. Van Landingham, 283 N.C. 589, 197 S.E.2d 539, 1973 N.C. LEXIS 1025 (1973); State v. Hamilton, 19 N.C. App. 436, 199 S.E.2d 159, 1973 N.C. App. LEXIS 1675, cert. denied, 284 N.C. 256, 200 S.E.2d 656, 1973 N.C. LEXIS 850 (1973); State v. DeGregory, 285 N.C. 122, 203 S.E.2d 794, 1974 N.C. LEXIS 927 (1974); State v. Britt, 285 N.C. 256, 204 S.E.2d 817, 1974 N.C. LEXIS 968 (1974); State v. Sparks, 285 N.C. 631, 207 S.E.2d 712, 1974 N.C. LEXIS 1065 (1974), vacated, 428 U.S. 905, 96 S. Ct. 3213, 49 L. Ed. 2d 1212, 1976 U.S. LEXIS 2265 (1976); State v. McLaughlin, 286 N.C. 597, 213 S.E.2d 238, 1975 N.C. LEXIS 1267 (1975), vacated in part, 428 U.S. 903, 96 S. Ct. 3206, 29 L. Ed. 2d 1208, 1976 U.S. LEXIS 4202 (1976); State v. Bock, 288 N.C. 145, 217 S.E.2d 513, 1975 N.C. LEXIS 891 (1975), vacated in part, 428 U.S. 903, 96 S. Ct. 3208, 49 L. Ed. 2d 1209, 1976 U.S. LEXIS 4207 (1976); State v. Shepherd, 288 N.C. 346, 218 S.E.2d 176, 1975 N.C. LEXIS 982 (1975); State v. Mitchell, 288 N.C. 360, 218 S.E.2d 332, 1975 N.C. LEXIS 984 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1210, 1976 U.S. LEXIS 4211 (1976); State v. Griffin, 288 N.C. 437, 219 S.E.2d 48, 1975 N.C. LEXIS 1009 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3210, 49 L. Ed. 2d 1210, 1976 U.S. LEXIS 4212 (1976); State v. Patterson, 288 N.C. 553, 220 S.E.2d 600, 1975 N.C. LEXIS 1031 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1211, 1976 U.S. LEXIS 4216 (1976); State v. Davis, 289 N.C. 500, 223 S.E.2d 296, 1976 N.C. LEXIS 1326, vacated in part, 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 N.C. LEXIS 1049 (1976); State v. Smith, 290 N.C. 148, 226 S.E.2d 10, 1976 N.C. LEXIS 1048, 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 N.C. LEXIS 972 (1977); State v. Thomas, 294 N.C. 105, 240 S.E.2d 426, 1978 N.C. LEXIS 1189 (1978); State v. Hill, 294 N.C. 320, 240 S.E.2d 794, 1978 N.C. LEXIS 1239 (1978); State v. Barbour, 295 N.C. 66, 243 S.E.2d 380, 1978 N.C. LEXIS 946 (1978); State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788, 1981 N.C. LEXIS 1186 (1981); State v. Marshall, 304 N.C. 167, 282 S.E.2d 422, 1981 N.C. LEXIS 1327 (1981); State v. Misenheimer, 304 N.C. 108, 282 S.E.2d 791, 1981 N.C. LEXIS 1334 (1981), overruled in part, State v. Weaver, 306 N.C. 629, 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982); State v. Calloway, 305 N.C. 747, 291 S.E.2d 622, 1982 N.C. LEXIS 1377 (1982); State v. Hamlet, 312 N.C. 162, 321 S.E.2d 837, 1984 N.C. LEXIS 1801 (1984); State v. Gladden, 315 N.C. 398, 340 S.E.2d 673, 1986 N.C. LEXIS 1885, cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166, 1986 U.S. LEXIS 4138 (1986); State v. Quesinberry, 319 N.C. 228, 354 S.E.2d 446, 1987 N.C. LEXIS 1929 (1987) (in light of) McKoy v. North Carolina, 1990 U.S. LEXIS 1179, 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 N.C. LEXIS 237 (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 N.C. LEXIS 85 (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 N.C. LEXIS 982 (1978); State v. Corn, 303 N.C. 293, 278 S.E.2d 221, 1981 N.C. LEXIS 1105 (1981); State v. Huffstetler, 312 N.C. 92, 322 S.E.2d 110, 1984 N.C. LEXIS 1799 (1984), cert. denied, 471 U.S. 1009, 105 S. Ct. 1877, 85 L. Ed. 2d 169, 1985 U.S. LEXIS 282 (1985); State v. Brown, 315 N.C. 40, 337 S.E.2d 808, 1985 N.C. LEXIS 1987 (1985), cert. denied, 476 U.S. 1165, 106 S. Ct. 2293, 90 L. Ed. 2d 733, 1986 U.S. LEXIS 1726 (1986), overruled, State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373, 1988 N.C. LEXIS 111 (1988); State v. Fisher, 318 N.C. 512, 350 S.E.2d 334, 1986 N.C. LEXIS 2738 (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 N.C. LEXIS 2425 (1986), vacated, 479 U.S. 1077, 107 S. Ct. 1271, 94 L. Ed. 2d 133, 1987 U.S. LEXIS 601 (1987), overruled in part, State v. Abbott, 320 N.C. 475, 358 S.E.2d 365, 1987 N.C. LEXIS 2296 (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 N.C. LEXIS 261 (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, 2006 N.C. App. LEXIS 1571 (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 N.C. LEXIS 1801 (1984); State v. Huffstetler, 312 N.C. 92, 322 S.E.2d 110, 1984 N.C. LEXIS 1799 (1984), cert. denied, 471 U.S. 1009, 105 S. Ct. 1877, 85 L. Ed. 2d 169, 1985 U.S. LEXIS 282 (1985); State v. Brown, 315 N.C. 40, 337 S.E.2d 808, 1985 N.C. LEXIS 1987 (1985), cert. denied, 476 U.S. 1165, 106 S. Ct. 2293, 90 L. Ed. 2d 733, 1986 U.S. LEXIS 1726 (1986), overruled, State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373, 1988 N.C. LEXIS 111 (1988); State v. Gladden, 315 N.C. 398, 340 S.E.2d 673, 1986 N.C. LEXIS 1885, cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166, 1986 U.S. LEXIS 4138 (1986); State v. Jackson, 317 N.C. 1, 343 S.E.2d 814, 1986 N.C. LEXIS 2425 (1986), vacated, 479 U.S. 1077, 107 S. Ct. 1271, 94 L. Ed. 2d 133, 1987 U.S. LEXIS 601 (1987), overruled in part, State v. Abbott, 320 N.C. 475, 358 S.E.2d 365, 1987 N.C. LEXIS 2296 (1987); State v. Barts, 316 N.C. 666, 343 S.E.2d 828, 1986 N.C. LEXIS 2395 (1986); State v. Fisher, 318 N.C. 512, 350 S.E.2d 334, 1986 N.C. LEXIS 2738 (1986); State v. Lloyd, 89 N.C. App. 630, 366 S.E.2d 912, 1988 N.C. App. LEXIS 362 (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 N.C. LEXIS 339 (1938); State v. Chavis, 231 N.C. 307, 56 S.E.2d 678, 1949 N.C. LEXIS 533 (1949); State v. Lamm, 232 N.C. 402, 61 S.E.2d 188, 1950 N.C. LEXIS 542 (1950); State v. Brown, 249 N.C. 271, 106 S.E.2d 232, 1958 N.C. LEXIS 472 (1958); State v. Faust, 254 N.C. 101, 118 S.E.2d 769, 1961 N.C. LEXIS 412, cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49, 1961 U.S. LEXIS 646 (1961); State v. Walters, 275 N.C. 615, 170 S.E.2d 484, 1969 N.C. LEXIS 477 (1969); State v. Hamby, 276 N.C. 674, 174 S.E.2d 385, 1970 N.C. LEXIS 737 (1970), vacated, 408 U.S. 937, 92 S. Ct. 2862, 33 L. Ed. 2d 754, 1972 U.S. LEXIS 1911 (1972); State v. Duboise, 279 N.C. 73, 181 S.E.2d 393, 1971 N.C. LEXIS 752 (1971); State v. Fountain, 282 N.C. 58, 191 S.E.2d 674, 1972 N.C. LEXIS 886 (1972); State v. Duncan, 282 N.C. 412, 193 S.E.2d 65, 1972 N.C. LEXIS 970 (1972); State v. Van Landingham, 283 N.C. 589, 197 S.E.2d 539, 1973 N.C. LEXIS 1025 (1973); State v. DeGregory, 285 N.C. 122, 203 S.E.2d 794, 1974 N.C. LEXIS 927 (1974); State v. Britt, 285 N.C. 256, 204 S.E.2d 817, 1974 N.C. LEXIS 968 (1974); State v. Bock, 288 N.C. 145, 217 S.E.2d 513, 1975 N.C. LEXIS 891 (1975), vacated in part, 428 U.S. 903, 96 S. Ct. 3208, 49 L. Ed. 2d 1209, 1976 U.S. LEXIS 4207 (1976); State v. Shepherd, 288 N.C. 346, 218 S.E.2d 176, 1975 N.C. LEXIS 982 (1975); State v. Mitchell, 288 N.C. 360, 218 S.E.2d 332, 1975 N.C. LEXIS 984 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1210, 1976 U.S. LEXIS 4211 (1976); State v. Griffin, 288 N.C. 437, 219 S.E.2d 48, 1975 N.C. LEXIS 1009 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3210, 49 L. Ed. 2d 1210, 1976 U.S. LEXIS 4212 (1976); State v. Spaulding, 288 N.C. 397, 219 S.E.2d 178, 1975 N.C. LEXIS 1007 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3210, 49 L. Ed. 2d 1210, 1976 U.S. LEXIS 4213 (1976); State v. Bush, 289 N.C. 159, 221 S.E.2d 333, 1976 N.C. LEXIS 1239, 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, 1976 N.C. LEXIS 1326, vacated in part, 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 N.C. LEXIS 1055 (1977); State v. Cates, 293 N.C. 462, 238 S.E.2d 465, 1977 N.C. LEXIS 972 (1977); State v. Thomas, 294 N.C. 105, 240 S.E.2d 426, 1978 N.C. LEXIS 1189 (1978); State v. Hill, 294 N.C. 320, 240 S.E.2d 794, 1978 N.C. LEXIS 1239 (1978); State v. Barbour, 295 N.C. 66, 243 S.E.2d 380, 1978 N.C. LEXIS 946 (1978); State v. Potter, 295 N.C. 126, 244 S.E.2d 397, 1978 N.C. LEXIS 982 (1978); State v. Myers, 299 N.C. 671, 263 S.E.2d 768, 1980 N.C. LEXIS 996 (1980); State v. Corn, 303 N.C. 293, 278 S.E.2d 221, 1981 N.C. LEXIS 1105 (1981); State v. Calloway, 305 N.C. 747, 291 S.E.2d 622, 1982 N.C. LEXIS 1377 (1982); State v. Hamlet, 312 N.C. 162, 321 S.E.2d 837, 1984 N.C. LEXIS 1801 (1984); State v. Saunders, 317 N.C. 308, 345 S.E.2d 212, 1986 N.C. LEXIS 2780 (1986); State v. Harris, 323 N.C. 112, 371 S.E.2d 689, 1988 N.C. LEXIS 538 (1988), writ denied, 447 S.E.2d 406, 1994 N.C. LEXIS 393 (1994).

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 N.C. LEXIS 1929 (1987) (in light of) McKoy v. North Carolina, 1990 U.S. LEXIS 1179, 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 N.C. App. LEXIS 1943 (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 N.C. LEXIS 87 (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 N.C. LEXIS 85 (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 N.C. LEXIS 85 (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 N.C. LEXIS 1031 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1211, 1976 U.S. LEXIS 4216 (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 N.C. App. LEXIS 3165 (1979).

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, 1982 N.C. LEXIS 1447, 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 N.C. LEXIS 1987 (1985), cert. denied, 476 U.S. 1165, 106 S. Ct. 2293, 90 L. Ed. 2d 733, 1986 U.S. LEXIS 1726 (1986), overruled, State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373, 1988 N.C. LEXIS 111 (1988); State v. Gladden, 315 N.C. 398, 340 S.E.2d 673, 1986 N.C. LEXIS 1885, cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166, 1986 U.S. LEXIS 4138 (1986); State v. Barts, 316 N.C. 666, 343 S.E.2d 828, 1986 N.C. LEXIS 2395 (1986); State v. Fisher, 318 N.C. 512, 350 S.E.2d 334, 1986 N.C. LEXIS 2738 (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 N.C. LEXIS 404 (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 N.C. App. LEXIS 1271 (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 N.C. LEXIS 749 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761, 1972 U.S. LEXIS 1952 (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 N.C. LEXIS 623 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74, 1971 U.S. LEXIS 1117 (1971), overruled, State v. Worsley, 336 N.C. 268, 443 S.E.2d 68, 1994 N.C. LEXIS 233 (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 N.C. LEXIS 927 (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 N.C. LEXIS 261 (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 N.C. LEXIS 2179 (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 N.C. App. LEXIS 324 (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 N.C. LEXIS 2179 (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 N.C. LEXIS 533 (1949); State v. Reams, 277 N.C. 391, 178 S.E.2d 65, 1970 N.C. LEXIS 623 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74, 1971 U.S. LEXIS 1117 (1971), overruled, State v. Worsley, 336 N.C. 268, 443 S.E.2d 68, 1994 N.C. LEXIS 233 (1994). See also, State v. Hawkins, 214 N.C. 326, 199 S.E. 284, 1938 N.C. LEXIS 339 (1938); State v. Lamm, 232 N.C. 402, 61 S.E.2d 188, 1950 N.C. LEXIS 542 (1950); State v. Brown, 249 N.C. 271, 106 S.E.2d 232, 1958 N.C. LEXIS 472 (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 N.C. LEXIS 246 (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 N.C. LEXIS 982 (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 N.C. LEXIS 925 (1974), vacated in part, 428 U.S. 904, 96 S. Ct. 3212, 49 L. Ed. 2d 1212, 1976 U.S. LEXIS 2264 (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 N.C. LEXIS 622 (1988), vacated, 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602, 1990 U.S. LEXIS 1309 (1990) (in light of) State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905, 1978 N.C. LEXIS 1070, 98 A.L.R.3d 285 (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 N.C. LEXIS 477 (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 N.C. LEXIS 1307 (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 N.C. App. LEXIS 563 (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 N.C. LEXIS 156 (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 N.C. LEXIS 603 (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 N.C. LEXIS 970 (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 N.C. LEXIS 1065 (1974), vacated, 428 U.S. 905, 96 S. Ct. 3213, 49 L. Ed. 2d 1212, 1976 U.S. LEXIS 2265 (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, 1975 N.C. App. LEXIS 2449, cert. denied, 287 N.C. 262, 214 S.E.2d 434, 1975 N.C. LEXIS 1107 (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 N.C. LEXIS 891 (1975), vacated in part, 428 U.S. 903, 96 S. Ct. 3208, 49 L. Ed. 2d 1209, 1976 U.S. LEXIS 4207 (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, 1976 N.C. LEXIS 1327, vacated in part, 429 U.S. 912, 97 S. Ct. 301, 50 L. Ed. 2d 278, 1976 U.S. LEXIS 3242 (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, 1986 N.C. App. LEXIS 1991 (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 N.C. LEXIS 2163 (1986), writ denied, 1998 N.C. LEXIS 515 (N.C. July 29, 1998).

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, 1961 N.C. LEXIS 412, cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49, 1961 U.S. LEXIS 646 (1961); State v. Sanders, 276 N.C. 598, 174 S.E.2d 487, 1970 N.C. LEXIS 733 (1970), rev'd, 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 N.C. LEXIS 2004 (1985); State v. Brown, 315 N.C. 40, 337 S.E.2d 808, 1985 N.C. LEXIS 1987 (1985), cert. denied, 476 U.S. 1165, 106 S. Ct. 2293, 90 L. Ed. 2d 733, 1986 U.S. LEXIS 1726 (1986), overruled, State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373, 1988 N.C. LEXIS 111 (1988); State v. Gladden, 315 N.C. 398, 340 S.E.2d 673, 1986 N.C. LEXIS 1885, cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166, 1986 U.S. LEXIS 4138 (1986); State v. Triplett, 316 N.C. 1, 340 S.E.2d 736, 1986 N.C. LEXIS 1901 (1986); State v. Hunt, 323 N.C. 407, 373 S.E.2d 400, 1988 N.C. LEXIS 628 (1988), vacated, 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602, 1990 U.S. LEXIS 1364 (1990), vacated, 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602, 1990 U.S. LEXIS 1384 (1990), reinstated, 330 N.C. 501, 411 S.E.2d 806, 1992 N.C. LEXIS 12 (1992), overruled, State v. Gaines, 345 N.C. 647, 483 S.E.2d 396, 1997 N.C. LEXIS 181 (1997) (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 N.C. LEXIS 1229 (1974), vacated in part, 428 U.S. 903, 96 S. Ct. 3206, 49 L. Ed. 2d 1207, 1976 U.S. LEXIS 4200 (1976).

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 N.C. LEXIS 2395 (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 N.C. LEXIS 2784 (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 N.C. LEXIS 2780 (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 N.C. LEXIS 2582 (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 N.C. LEXIS 2566 (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 N.C. LEXIS 2738 (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 N.C. LEXIS 1825 (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 N.C. LEXIS 1886 (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 N.C. LEXIS 1929 (1987).

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 N.C. LEXIS 2025 (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 N.C. LEXIS 2580 (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, 1987 N.C. LEXIS 2085, cert. denied, 484 U.S. 918, 108 S. Ct. 269, 98 L. Ed. 2d 226, 1987 U.S. LEXIS 4302 (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 N.C. LEXIS 2179 (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, 1987 N.C. LEXIS 2168, cert. denied, 484 U.S. 916, 108 S. Ct. 267, 98 L. Ed. 2d 224, 1987 U.S. LEXIS 4370 (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 N.C. LEXIS 2176, cert. denied, 484 U.S. 959, 108 S. Ct. 359, 98 L. Ed. 2d 384, 1987 U.S. LEXIS 4733 (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 N.C. LEXIS 2091 (1987); State v. Hager, 320 N.C. 77, 357 S.E.2d 615, 1987 N.C. LEXIS 2170 (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 N.C. LEXIS 2556 (1987).

Evidence held sufficient to convict defendant of first-degree murder. State v. Nichols, 321 N.C. 616, 365 S.E.2d 561, 1988 N.C. LEXIS 224 (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 N.C. LEXIS 225 (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 N.C. LEXIS 226 (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, 1988 N.C. LEXIS 126, cert. denied, 487 U.S. 1220, 108 S. Ct. 2876, 101 L. Ed. 2d 911, 1988 U.S. LEXIS 2963 (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 N.C. LEXIS 297 (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 N.C. LEXIS 605 (1988), vacated, 494 U.S. 1021, 110 S. Ct. 1464, 108 L. Ed. 2d 602, 1990 U.S. LEXIS 1441 (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 N.C. LEXIS 8 (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 N.C. LEXIS 596 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2587, 110 L. Ed. 2d 268, 1990 U.S. LEXIS 2900 (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 N.C. LEXIS 1 (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 N.C. LEXIS 522 (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 N.C. App. LEXIS 1077 (1990), cert. dismissed, 328 N.C. 576, 403 S.E.2d 520, 1991 N.C. LEXIS 274 (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 N.C. LEXIS 87 (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 N.C. LEXIS 520 (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 N.C. LEXIS 260 (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 N.C. LEXIS 531 (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 N.C. LEXIS 588 (1992), overruled, State v. Richmond, 347 N.C. 412, 495 S.E.2d 677, 1998 N.C. LEXIS 13 (1998).

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 N.C. LEXIS 403 (1994), writ denied, 351 N.C. 479, 543 S.E.2d 505, 2000 N.C. LEXIS 288 (2000).

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 N.C. LEXIS 734 (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 N.C. LEXIS 652 (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 N.C. LEXIS 243 (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 N.C. LEXIS 687 (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 N.C. LEXIS 507 (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 N.C. App. LEXIS 856 (1999), cert. dismissed, 352 N.C. 669, 535 S.E.2d 33, 2000 N.C. LEXIS 747 (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 N.C. App. LEXIS 1032 (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 N.C. App. LEXIS 246 (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 N.C. App. LEXIS 423 (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 N.C. App. LEXIS 351 (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, 2005 U.S. Dist. LEXIS 28000 (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 N.C. App. LEXIS 151 (2007), cert. denied, 553 U.S. 1055, 128 S. Ct. 2473, 171 L. Ed. 2d 769, 2008 U.S. LEXIS 4216 (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 N.C. App. LEXIS 864, cert. denied, 362 N.C. 683, 670 S.E.2d 566, 2008 N.C. LEXIS 1054 (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, 278 N.C. App. 474, 861 S.E.2d 367, 2021- NCCOA-348, 2021 N.C. App. LEXIS 378 (2021).

Evidence was sufficient to show that defendant was a person providing care or supervision to the child victim as required by N.C. Gen. Stat. § 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, 278 N.C. App. 474, 861 S.E.2d 367, 2021- NCCOA-348, 2021 N.C. App. LEXIS 378 (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 N.C. LEXIS 163 (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 N.C. App. LEXIS 116 (2004), cert. dismissed, 368 N.C. 821, 784 S.E.2d 477, 2016 N.C. LEXIS 360 (2016), cert. dismissed, 368 N.C. 821, 784 S.E.2d 476, 2016 N.C. LEXIS 366 (2016).

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 N.C. LEXIS 500 (1996), cert. denied, 520 U.S. 1147, 117 S. Ct. 1321, 137 L. Ed. 2d 483, 1997 U.S. LEXIS 2017 (1997).

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 N.C. LEXIS 14 (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 N.C. App. LEXIS 318 (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 N.C. App. LEXIS 1462 (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 N.C. LEXIS 242 (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 N.C. App. LEXIS 1275 (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 N.C. LEXIS 336 (1996), overruled, State v. Gaines, 345 N.C. 647, 483 S.E.2d 396, 1997 N.C. LEXIS 181 (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 N.C. LEXIS 1091 (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, 1977 N.C. LEXIS 1172, cert. denied, 434 U.S. 924, 98 S. Ct. 402, 54 L. Ed. 2d 281, 1977 U.S. LEXIS 3781 (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 N.C. LEXIS 2580 (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 N.C. App. LEXIS 1511 (2003).

III.Murder by Means Stated in Section

Premeditation and Intent to Kill Are Not Elements of Murder by Means Stated in Section. —

Premeditation and deliberation is not an element of the crime of first-degree murder perpetrated by means of poison, lying in wait, imprisonment, starving or torture. Likewise, a specific intent to kill is not an element of first-degree murder when the homicide is perpetrated by means of poison, lying in wait, imprisonment, starving or torture. State v. Johnson, 317 N.C. 193, 344 S.E.2d 775, 1986 N.C. LEXIS 2794 (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 N.C. LEXIS 1886 (1987); State v. Leroux, 326 N.C. 368, 390 S.E.2d 314, 1990 N.C. LEXIS 163, cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155, 1990 U.S. LEXIS 4767 (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, 1991 N.C. LEXIS 13, cert. denied, 501 U.S. 1208, 111 S. Ct. 2804, 115 L. Ed. 2d 977, 1991 U.S. LEXIS 3393 (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 N.C. LEXIS 5 (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 N.C. LEXIS 418 (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 N.C. LEXIS 557 (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 N.C. LEXIS 2794 (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, 1994 N.C. LEXIS 104, cert. denied, 513 U.S. 898, 115 S. Ct. 253, 130 L. Ed. 2d 174, 1994 U.S. LEXIS 6701 (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, 2000 N.C. LEXIS 3, cert. denied, 531 U.S. 862, 121 S. Ct. 151, 148 L. Ed. 2d 100, 2000 U.S. LEXIS 5702 (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 N.C. LEXIS 2794 (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 N.C. LEXIS 2794 (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, 1982 U.S. Dist. LEXIS 12690 (E.D.N.C. 1982), aff'd, 719 F.2d 58, 1983 U.S. App. LEXIS 16325 (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 N.C. LEXIS 557 (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, 1976 N.C. LEXIS 1293, vacated in part, 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 N.C. LEXIS 1408 (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 N.C. LEXIS 418 (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 N.C. LEXIS 418 (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, 1990 N.C. LEXIS 163, cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155, 1990 U.S. LEXIS 4767 (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, 1990 N.C. LEXIS 163, cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155, 1990 U.S. LEXIS 4767 (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, 1987 N.C. LEXIS 2180, cert. denied, 484 U.S. 970, 108 S. Ct. 467, 98 L. Ed. 2d 406, 1987 U.S. LEXIS 5019 (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 N.C. LEXIS 1371 (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 N.C. LEXIS 189 (1916). See State v. Satterfield, 207 N.C. 118, 176 S.E. 466, 1934 N.C. LEXIS 394 (1934); State v. Mozingo, 207 N.C. 247, 176 S.E. 582, 1934 N.C. LEXIS 431 (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 N.C. LEXIS 1371 (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, 1988 N.C. LEXIS 126, cert. denied, 487 U.S. 1220, 108 S. Ct. 2876, 101 L. Ed. 2d 911, 1988 U.S. LEXIS 2963 (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, 1990 N.C. LEXIS 163, cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155, 1990 U.S. LEXIS 4767 (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 N.C. LEXIS 414 (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, 1990 N.C. LEXIS 163, cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155, 1990 U.S. LEXIS 4767 (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, 1990 N.C. LEXIS 163, cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155, 1990 U.S. LEXIS 4767 (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, 267 N.C. App. 579, 833 S.E.2d 660, 2019 N.C. App. LEXIS 803 (2019), dismissed, 374 N.C. 270, 839 S.E.2d 339, 2020 N.C. LEXIS 284 (2020), aff'd, 377 N.C. 528, 858 S.E.2d 566, 2021- NCSC-69, 2021 N.C. LEXIS 544 (2021).

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 N.C. LEXIS 1886 (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, 267 N.C. App. 579, 833 S.E.2d 660, 2019 N.C. App. LEXIS 803 (2019), dismissed, 374 N.C. 270, 839 S.E.2d 339, 2020 N.C. LEXIS 284 (2020), aff'd, 377 N.C. 528, 858 S.E.2d 566, 2021- NCSC-69, 2021 N.C. LEXIS 544 (2021).

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, 267 N.C. App. 579, 833 S.E.2d 660, 2019 N.C. App. LEXIS 803 (2019), dismissed, 374 N.C. 270, 839 S.E.2d 339, 2020 N.C. LEXIS 284 (2020), aff'd, 377 N.C. 528, 858 S.E.2d 566, 2021- NCSC-69, 2021 N.C. LEXIS 544 (2021).

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, 267 N.C. App. 579, 833 S.E.2d 660, 2019 N.C. App. LEXIS 803 (2019), dismissed, 374 N.C. 270, 839 S.E.2d 339, 2020 N.C. LEXIS 284 (2020), aff'd, 377 N.C. 528, 858 S.E.2d 566, 2021- NCSC-69, 2021 N.C. LEXIS 544 (2021).

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 N.C. LEXIS 531 (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 N.C. LEXIS 752 (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 N.C. LEXIS 477 (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 N.C. LEXIS 477 (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 N.C. LEXIS 531 (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 N.C. LEXIS 531 (1991).

IV.Murder in Perpetration of a Felony

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 N.C. LEXIS 532 (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 N.C. LEXIS 532 (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 N.C. App. LEXIS 895 (1988) (in light of) State v. Bullard, 79 N.C. App. 440, 339 S.E.2d 664, 1986 N.C. App. LEXIS 2060 (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 N.C. App. LEXIS 563 (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 N.C. App. LEXIS 563 (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 N.C. LEXIS 1107 (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 N.C. LEXIS 588 (1992), overruled, State v. Richmond, 347 N.C. 412, 495 S.E.2d 677, 1998 N.C. LEXIS 13 (1998).

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 N.C. LEXIS 1015 (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 N.C. LEXIS 1084 (1976); State v. Wall, 304 N.C. 609, 286 S.E.2d 68, 1982 N.C. LEXIS 1227 (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 N.C. LEXIS 533 (1949); State v. Fox, 277 N.C. 1, 175 S.E.2d 561, 1970 N.C. LEXIS 506 (1970); State v. Doss, 279 N.C. 413, 183 S.E.2d 671, 1971 N.C. LEXIS 841 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2875, 33 L. Ed. 2d 762, 1972 U.S. LEXIS 1957 (1972); State v. Hairston, 280 N.C. 220, 185 S.E.2d 633, 1972 N.C. LEXIS 1223, cert. denied, 409 U.S. 888, 93 S. Ct. 194, 34 L. Ed. 2d 145, 1972 U.S. LEXIS 1773 (1972); State v. Thompson, 280 N.C. 202, 185 S.E.2d 666, 1972 N.C. LEXIS 1222 (1972); State v. Jenerett, 281 N.C. 81, 187 S.E.2d 735, 1972 N.C. LEXIS 1007 (1972); State v. Williams, 284 N.C. 67, 199 S.E.2d 409, 1973 N.C. LEXIS 776 (1973); State v. Bush, 289 N.C. 159, 221 S.E.2d 333, 1976 N.C. LEXIS 1239, 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 N.C. LEXIS 1058 (1976); State v. Peplinski, 290 N.C. 236, 225 S.E.2d 568, 1976 N.C. LEXIS 1053, cert. denied, 429 U.S. 932, 97 S. Ct. 339, 50 L. Ed. 2d 301, 1976 U.S. LEXIS 3421 (1976); Chance v. Garrison, 537 F.2d 1212, 1976 U.S. App. LEXIS 8603 (4th Cir. 1976); State v. Warren, 292 N.C. 235, 232 S.E.2d 419, 1977 N.C. LEXIS 1057 (1977); State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788, 1981 N.C. LEXIS 1186 (1981); State v. Irwin, 304 N.C. 93, 282 S.E.2d 439, 1981 N.C. LEXIS 1331 (1981); State v. Wall, 304 N.C. 609, 286 S.E.2d 68, 1982 N.C. LEXIS 1227 (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 N.C. LEXIS 526 (1949); State v. Maynard, 247 N.C. 462, 101 S.E.2d 340, 1958 N.C. LEXIS 562 (1958); State v. Thompson, 280 N.C. 202, 185 S.E.2d 666, 1972 N.C. LEXIS 1222 (1972); State v. Swift, 290 N.C. 383, 226 S.E.2d 652, 1976 N.C. LEXIS 1084 (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 N.C. LEXIS 1054 (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 N.C. LEXIS 1997 (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 N.C. LEXIS 475 (1997), cert. denied, 522 U.S. 1032, 118 S. Ct. 635, 139 L. Ed. 2d 614, 1997 U.S. LEXIS 7581 (1997), writ denied, 356 N.C. 168, 568 S.E.2d 616, 2002 N.C. LEXIS 738 (2002).

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 N.C. App. LEXIS 1200 (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, 2011 N.C. App. LEXIS 52 (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 N.C. LEXIS 975 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1209, 1976 U.S. LEXIS 4210 (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 N.C. LEXIS 512 (1933); State v. Stefanoff, 206 N.C. 443, 174 S.E. 411, 1934 N.C. LEXIS 204 (1934); State v. Green, 207 N.C. 369, 177 S.E. 120, 1934 N.C. LEXIS 472 (1934); State v. Kelly, 216 N.C. 627, 6 S.E.2d 533, 1940 N.C. LEXIS 356 (1940); State v. Miller, 219 N.C. 514, 14 S.E.2d 522, 1941 N.C. LEXIS 95 (1941); State v. Bennet, 226 N.C. 82, 36 S.E.2d 708, 1946 N.C. LEXIS 382 (1946); State v. Chavis, 231 N.C. 307, 56 S.E.2d 678, 1949 N.C. LEXIS 533 (1949); State v. Fox, 277 N.C. 1, 175 S.E.2d 561, 1970 N.C. LEXIS 506 (1970); State v. Hairston, 280 N.C. 220, 185 S.E.2d 633, 1972 N.C. LEXIS 1223, cert. denied, 409 U.S. 888, 93 S. Ct. 194, 34 L. Ed. 2d 145, 1972 U.S. LEXIS 1773 (1972); State v. Wright, 282 N.C. 364, 192 S.E.2d 818, 1972 N.C. LEXIS 964 (1972); State v. Carey, 288 N.C. 254, 218 S.E.2d 387, 1975 N.C. LEXIS 975 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1209, 1976 U.S. LEXIS 4210 (1976); State v. Peplinski, 290 N.C. 236, 225 S.E.2d 568, 1976 N.C. LEXIS 1053, cert. denied, 429 U.S. 932, 97 S. Ct. 339, 50 L. Ed. 2d 301, 1976 U.S. LEXIS 3421 (1976); State v. Squire, 292 N.C. 494, 234 S.E.2d 563, 1977 N.C. LEXIS 1134, cert. denied, 434 U.S. 998, 98 S. Ct. 638, 54 L. Ed. 2d 493, 1977 U.S. LEXIS 4325 (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, 1976 N.C. LEXIS 1239, 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, 1977 N.C. LEXIS 1134, cert. denied, 434 U.S. 998, 98 S. Ct. 638, 54 L. Ed. 2d 493, 1977 U.S. LEXIS 4325 (1977); State v. Avery, 315 N.C. 1, 337 S.E.2d 786, 1985 N.C. LEXIS 1997 (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 N.C. LEXIS 1222 (1972); State v. Bush, 289 N.C. 159, 221 S.E.2d 333, 1976 N.C. LEXIS 1239, vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976); State v. Shrader, 290 N.C. 253, 225 S.E.2d 522, 1976 N.C. LEXIS 1054 (1976); State v. Covington, 290 N.C. 313, 226 S.E.2d 629, 1976 N.C. LEXIS 1081 (1976); State v. Squire, 292 N.C. 494, 234 S.E.2d 563, 1977 N.C. LEXIS 1134, cert. denied, 434 U.S. 998, 98 S. Ct. 638, 54 L. Ed. 2d 493, 1977 U.S. LEXIS 4325 (1977); State v. Wooten, 295 N.C. 378, 245 S.E.2d 699, 1978 N.C. LEXIS 889 (1978); State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788, 1981 N.C. LEXIS 1186 (1981); State v. Fields, 315 N.C. 191, 337 S.E.2d 518, 1985 N.C. LEXIS 2004 (1985); State v. Avery, 315 N.C. 1, 337 S.E.2d 786, 1985 N.C. LEXIS 1997 (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 N.C. LEXIS 542 (1993), cert. denied, 512 U.S. 1246, 114 S. Ct. 2767, 129 L. Ed. 2d 881, 1994 U.S. LEXIS 5069 (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 N.C. App. LEXIS 2059 (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 N.C. LEXIS 363 (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 N.C. App. LEXIS 500 (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 N.C. App. LEXIS 371 (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 N.C. App. LEXIS 1625 (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 N.C. App. LEXIS 280 (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 N.C. App. LEXIS 908 (2015).

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 N.C. LEXIS 498 (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 N.C. LEXIS 502 (1996), cert. denied, 520 U.S. 1201, 117 S. Ct. 1562, 137 L. Ed. 2d 708, 1997 U.S. LEXIS 2745 (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 N.C. LEXIS 2004 (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 N.C. LEXIS 1197 (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 N.C. LEXIS 1140 (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 N.C. LEXIS 532 (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 N.C. LEXIS 532 (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 N.C. LEXIS 239 (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 N.C. LEXIS 1267 (1975), vacated in part, 428 U.S. 903, 96 S. Ct. 3206, 29 L. Ed. 2d 1208, 1976 U.S. LEXIS 4202 (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 N.C. LEXIS 424 (1945); State v. King, 226 N.C. 241, 37 S.E.2d 684, 1946 N.C. LEXIS 430 (1946); State v. Crawford, 260 N.C. 548, 133 S.E.2d 232, 1963 N.C. LEXIS 775 (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, 277 N.C. App. 314, 858 S.E.2d 354, 2021- NCCOA-186, 2021 N.C. App. LEXIS 206 (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 N.C. LEXIS 1271 (1975), vacated in part, 428 U.S. 903, 96 S. Ct. 3207, 49 L. Ed. 2d 1208, 1976 U.S. LEXIS 4204 (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 N.C. App. LEXIS 1178 (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 N.C. LEXIS 403 (1914); State v. Glover, 208 N.C. 68, 179 S.E. 6, 1935 N.C. LEXIS 320 (1935); State v. Exum, 213 N.C. 16, 195 S.E. 7, 1938 N.C. LEXIS 3 (1938); State v. Alston, 215 N.C. 713, 3 S.E.2d 11, 1939 N.C. LEXIS 353 (1939); State v. Kelly, 216 N.C. 627, 6 S.E.2d 533, 1940 N.C. LEXIS 356 (1940); State v. Biggs, 224 N.C. 722, 32 S.E.2d 352, 1944 N.C. LEXIS 256 (1944); State v. Maynard, 247 N.C. 462, 101 S.E.2d 340, 1958 N.C. LEXIS 562 (1958); State v. Bunton, 247 N.C. 510, 101 S.E.2d 454, 1958 N.C. LEXIS 579 (1958); State v. Bailey, 254 N.C. 380, 119 S.E.2d 165, 1961 N.C. LEXIS 459 (1961); State v. Haynes, 276 N.C. 150, 171 S.E.2d 435, 1970 N.C. LEXIS 648 (1970); State v. Wright, 282 N.C. 364, 192 S.E.2d 818, 1972 N.C. LEXIS 964 (1972); State v. Carey, 285 N.C. 509, 206 S.E.2d 222, 1974 N.C. LEXIS 1006 (1974); State v. Simmons, 286 N.C. 681, 213 S.E.2d 280, 1975 N.C. LEXIS 1271 (1975), vacated in part, 428 U.S. 903, 96 S. Ct. 3207, 49 L. Ed. 2d 1208, 1976 U.S. LEXIS 4204 (1976); State v. Carey, 288 N.C. 254, 218 S.E.2d 387, 1975 N.C. LEXIS 975 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1209, 1976 U.S. LEXIS 4210 (1976); State v. McZorn, 288 N.C. 417, 219 S.E.2d 201, 1975 N.C. LEXIS 1008 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3210, 49 L. Ed. 2d 1210, 1976 U.S. LEXIS 4214 (1976); State v. Bush, 289 N.C. 159, 221 S.E.2d 333, 1976 N.C. LEXIS 1239, 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 N.C. LEXIS 1058 (1976); State v. Swift, 290 N.C. 383, 226 S.E.2d 652, 1976 N.C. LEXIS 1084 (1976); State v. Dollar, 292 N.C. 344, 233 S.E.2d 521, 1977 N.C. LEXIS 1094 (1977); State v. Wall, 304 N.C. 609, 286 S.E.2d 68, 1982 N.C. LEXIS 1227 (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 N.C. LEXIS 986 (2008), cert. denied, 558 U.S. 851, 130 S. Ct. 129, 175 L. Ed. 2d 84, 2009 U.S. LEXIS 5323 (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 N.C. LEXIS 666 (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 N.C. LEXIS 1110 (1983); State v. Jackson, 309 N.C. 26, 305 S.E.2d 703, 1983 N.C. LEXIS 1312 (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 N.C. LEXIS 889 (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 N.C. LEXIS 2089 (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 N.C. LEXIS 423 (1992).

What Unspecified Felonies Are Within Purview of Section. —

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 N.C. LEXIS 1892 (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 N.C. App. LEXIS 622 (1999), aff'd in part and rev'd in part, 353 N.C. 159, 538 S.E.2d 917, 2000 N.C. LEXIS 894 (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 N.C. App. LEXIS 622 (1999), aff'd in part and rev'd in part, 353 N.C. 159, 538 S.E.2d 917, 2000 N.C. LEXIS 894 (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 N.C. LEXIS 776 (1973); State v. Williams, 21 N.C. App. 525, 204 S.E.2d 864, 1974 N.C. App. LEXIS 1859 (1974); State v. Swift, 290 N.C. 383, 226 S.E.2d 652, 1976 N.C. LEXIS 1084 (1976); State v. Wall, 304 N.C. 609, 286 S.E.2d 68, 1982 N.C. LEXIS 1227 (1982); State v. King, 316 N.C. 78, 340 S.E.2d 71, 1986 N.C. LEXIS 1892 (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 N.C. LEXIS 229 (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 N.C. LEXIS 229 (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 N.C. LEXIS 597 (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 N.C. LEXIS 386 (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 N.C. App. LEXIS 1344 (2009), cert. dismissed, 368 N.C. 926, 786 S.E.2d 919, 2016 N.C. LEXIS 522 (2016).

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 N.C. App. LEXIS 442 (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 N.C. App. LEXIS 226 (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 N.C. LEXIS 566 (1970); State v. Squire, 292 N.C. 494, 234 S.E.2d 563, 1977 N.C. LEXIS 1134, cert. denied, 434 U.S. 998, 98 S. Ct. 638, 54 L. Ed. 2d 493, 1977 U.S. LEXIS 4325 (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 N.C. LEXIS 1222 (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 N.C. LEXIS 2089 (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 N.C. App. LEXIS 688 (2007).

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 N.C. LEXIS 841 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2875, 33 L. Ed. 2d 762, 1972 U.S. LEXIS 1957 (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 N.C. LEXIS 404 (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 N.C. LEXIS 653 (1996), cert. denied, 522 U.S. 826, 118 S. Ct. 86, 139 L. Ed. 2d 43, 1997 U.S. LEXIS 4830 (1997), cert. dismissed, 368 N.C. 424, 779 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 N.C. LEXIS 489 (1997), cert. denied, 522 U.S. 1056, 118 S. Ct. 710, 139 L. Ed. 2d 652, 1998 U.S. LEXIS 190 (1998), writ denied, 362 N.C. 478, 667 S.E.2d 272, 2008 N.C. LEXIS 707 (2008), writ denied, 368 N.C. 770, 782 S.E.2d 736, 2016 N.C. LEXIS 227 (2016).

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 N.C. LEXIS 1090 (2001), cert. denied, 535 U.S. 1114, 122 S. Ct. 2332, 153 L. Ed. 2d 162, 2002 U.S. LEXIS 4081 (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 N.C. LEXIS 477 (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 N.C. App. LEXIS 541 (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 N.C. LEXIS 2004 (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 N.C. LEXIS 493 (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 N.C. LEXIS 487 (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, 2006 N.C. App. LEXIS 521 (2006), cert. dismissed, 365 N.C. 334, 2011 N.C. LEXIS 1167 (2011).

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, 264 N.C. App. 566, 826 S.E.2d 478, 2019 N.C. App. LEXIS 240 (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 N.C. LEXIS 1331 (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 N.C. LEXIS 1292 (1983), overruled, State v. Parker, 315 N.C. 222, 337 S.E.2d 487, 1985 N.C. LEXIS 1982 (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 N.C. LEXIS 1292 (1983), overruled, State v. Parker, 315 N.C. 222, 337 S.E.2d 487, 1985 N.C. LEXIS 1982 (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 N.C. LEXIS 1057 (1981), overruled, State v. Sanderson, 346 N.C. 669, 488 S.E.2d 133, 1997 N.C. LEXIS 491 (1997), State v. Adams, 347 N.C. 48, 490 S.E.2d 220, 1997 N.C. LEXIS 596 (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 N.C. LEXIS 1197 (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 N.C. LEXIS 239 (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 N.C. LEXIS 398 (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 N.C. LEXIS 1251 (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 N.C. App. LEXIS 908 (2015).

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 N.C. LEXIS 938 (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 N.C. LEXIS 960 (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, 1977 N.C. LEXIS 1134, cert. denied, 434 U.S. 998, 98 S. Ct. 638, 54 L. Ed. 2d 493, 1977 U.S. LEXIS 4325 (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 N.C. LEXIS 776 (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 N.C. App. LEXIS 1542 (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 N.C. App. LEXIS 689 (2008), cert. denied, 555 U.S. 1215, 129 S. Ct. 1532, 173 L. Ed. 2d 662, 2009 U.S. LEXIS 1704 (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 N.C. LEXIS 1997 (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 N.C. LEXIS 1057 (1981), overruled, State v. Sanderson, 346 N.C. 669, 488 S.E.2d 133, 1997 N.C. LEXIS 491 (1997), State v. Adams, 347 N.C. 48, 490 S.E.2d 220, 1997 N.C. LEXIS 596 (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 N.C. LEXIS 2004 (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 N.C. LEXIS 1057 (1981), overruled, State v. Sanderson, 346 N.C. 669, 488 S.E.2d 133, 1997 N.C. LEXIS 491 (1997), State v. Adams, 347 N.C. 48, 490 S.E.2d 220, 1997 N.C. LEXIS 596 (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 N.C. LEXIS 239 (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 N.C. LEXIS 2493 (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 N.C. LEXIS 1265 (2002), cert. denied, 539 U.S. 949, 123 S. Ct. 2624, 156 L. Ed. 2d 640, 2003 U.S. LEXIS 4928 (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, 1974 N.C. LEXIS 933, cert. denied, 419 U.S. 867, 95 S. Ct. 123, 42 L. Ed. 2d 104, 1974 U.S. LEXIS 2748 (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 N.C. LEXIS 2089 (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 N.C. App. LEXIS 576 (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, 1988 N.C. LEXIS 112, cert. denied, 488 U.S. 900, 109 S. Ct. 247, 102 L. Ed. 2d 235, 1988 U.S. LEXIS 4317 (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 N.C. LEXIS 2493 (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, 1930 N.C. LEXIS 8 (1930).

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 N.C. LEXIS 238 (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, 1934 N.C. LEXIS 35 (1934).

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 N.C. LEXIS 123 (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 N.C. LEXIS 316 (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 N.C. LEXIS 533 (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 N.C. LEXIS 775 (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 N.C. LEXIS 975 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1209, 1976 U.S. LEXIS 4210 (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 N.C. LEXIS 1331 (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 N.C. LEXIS 889 (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 N.C. LEXIS 1997 (1985).

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 N.C. LEXIS 2395 (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 N.C. LEXIS 1930 (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 N.C. LEXIS 7 (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 N.C. LEXIS 87 (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, 1991 N.C. LEXIS 326, cert. denied, 502 U.S. 915, 112 S. Ct. 319, 116 L. Ed. 2d 261, 1991 U.S. LEXIS 5855 (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 N.C. LEXIS 703 (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 N.C. LEXIS 703 (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 N.C. LEXIS 711 (1994), cert. denied, 515 U.S. 1163, 115 S. Ct. 2619, 132 L. Ed. 2d 861, 1995 U.S. LEXIS 4361 (1995), limited, State v. Richardson, 341 N.C. 658, 462 S.E.2d 492, 1995 N.C. LEXIS 532 (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 N.C. App. LEXIS 941 (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 N.C. App. LEXIS 2039 (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, 2006 N.C. App. LEXIS 521 (2006), cert. dismissed, 365 N.C. 334, 2011 N.C. LEXIS 1167 (2011).

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 N.C. App. LEXIS 880 (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 N.C. LEXIS 495 (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 N.C. LEXIS 1265 (2003), cert. denied, 541 U.S. 1088, 124 S. Ct. 2818, 159 L. Ed. 2d 252, 2004 U.S. LEXIS 4087 (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 N.C. App. LEXIS 134 (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 N.C. App. LEXIS 729 (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 N.C. LEXIS 455 (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 N.C. LEXIS 276 (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 N.C. LEXIS 1348 (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 N.C. LEXIS 735 (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 N.C. App. LEXIS 144 (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, 2007 N.C. App. LEXIS 1037 (2007), cert. denied, 552 U.S. 1126, 128 S. Ct. 941, 169 L. Ed. 2d 776, 2008 U.S. LEXIS 472 (2008).

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 N.C. LEXIS 536 (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 N.C. App. LEXIS 1519 (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, 1979 U.S. Dist. LEXIS 13170 (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 N.C. LEXIS 409 (1955); State v. Mercer, 275 N.C. 108, 165 S.E.2d 328, 1969 N.C. LEXIS 354 (1969), overruled, State v. Caddell, 287 N.C. 266, 215 S.E.2d 348, 1975 N.C. LEXIS 1120 (1975); State v. Winford, 279 N.C. 58, 181 S.E.2d 423, 1971 N.C. LEXIS 751 (1971); State v. Williams, 288 N.C. 680, 220 S.E.2d 558, 1975 N.C. LEXIS 1036 (1975).

Malice is always a necessary ingredient of murder. State v. Baldwin, 152 N.C. 822, 68 S.E. 148, 1910 N.C. LEXIS 389 (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, 1980 N.C. App. LEXIS 3073 (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 N.C. App. LEXIS 860 (1999), rev'd, 351 N.C. 448, 527 S.E.2d 45, 2000 N.C. LEXIS 233 (2000).

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 N.C. LEXIS 373 (1922), overruled, State v. Phillips, 264 N.C. 508, 142 S.E.2d 337, 1965 N.C. LEXIS 1227 (1965); State v. Starnes, 220 N.C. 384, 17 S.E.2d 346, 1941 N.C. LEXIS 543 (1941); State v. Downey, 253 N.C. 348, 117 S.E.2d 39, 1960 N.C. LEXIS 663 (1960); State v. Kea, 256 N.C. 492, 124 S.E.2d 174, 1962 N.C. LEXIS 475 (1962); State v. Foust, 258 N.C. 453, 128 S.E.2d 889, 1963 N.C. LEXIS 440 (1963); State v. McCain, 6 N.C. App. 558, 170 S.E.2d 531, 1969 N.C. App. LEXIS 1227 (1969); State v. Jennings, 276 N.C. 157, 171 S.E.2d 447, 1970 N.C. LEXIS 649 (1970); State v. Duboise, 279 N.C. 73, 181 S.E.2d 393, 1971 N.C. LEXIS 752 (1971); State v. Cannady, 16 N.C. App. 569, 192 S.E.2d 677, 1972 N.C. App. LEXIS 1762 (1972); State v. Fox, 18 N.C. App. 523, 197 S.E.2d 265, 1973 N.C. App. LEXIS 1927, cert. denied, 283 N.C. 755, 198 S.E.2d 725, 1973 N.C. LEXIS 1083 (1973); State v. Davis, 289 N.C. 500, 223 S.E.2d 296, 1976 N.C. LEXIS 1326, vacated in part, 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 N.C. LEXIS 1327, vacated in part, 429 U.S. 912, 97 S. Ct. 301, 50 L. Ed. 2d 278, 1976 U.S. LEXIS 3242 (1976); State v. Cousins, 289 N.C. 540, 223 S.E.2d 338, 1976 N.C. LEXIS 1330 (1976); State v. Christopher, 29 N.C. App. 231, 223 S.E.2d 835, 1976 N.C. App. LEXIS 2450 (1976); State v. Periman, 32 N.C. App. 33, 230 S.E.2d 802, 1977 N.C. App. LEXIS 1853 (1977); State v. Jones, 291 N.C. 681, 231 S.E.2d 252, 1977 N.C. LEXIS 1233 (1977); State v. Cates, 293 N.C. 462, 238 S.E.2d 465, 1977 N.C. LEXIS 972 (1977); State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978); State v. Hodges, 296 N.C. 66, 249 S.E.2d 371, 1978 N.C. LEXIS 1160 (1978); State v. Fleming, 296 N.C. 559, 251 S.E.2d 430, 1979 N.C. LEXIS 1198 (1979); State v. Rogers, 299 N.C. 597, 264 S.E.2d 89, 1980 N.C. LEXIS 988 (1980); State v. Brown, 300 N.C. 731, 268 S.E.2d 201, 1980 N.C. LEXIS 1135 (1980); State v. Jenkins, 300 N.C. 578, 268 S.E.2d 458, 1980 N.C. LEXIS 1117 (1980); State v. Mapp, 45 N.C. App. 574, 264 S.E.2d 348, 1980 N.C. App. LEXIS 2709 (1980); State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788, 1981 N.C. LEXIS 1186 (1981); State v. Simpson, 303 N.C. 439, 279 S.E.2d 542, 1981 N.C. LEXIS 1180 (1981); State v. Norris, 303 N.C. 526, 279 S.E.2d 570, 1981 N.C. LEXIS 1188 (1981); State v. Marshall, 304 N.C. 167, 282 S.E.2d 422, 1981 N.C. LEXIS 1327 (1981); State v. Cooke, 306 N.C. 117, 291 S.E.2d 649, 1982 N.C. LEXIS 1373 (1982); State v. Robbins, 309 N.C. 771, 309 S.E.2d 188, 1983 N.C. LEXIS 1456 (1983); State v. Allen, 77 N.C. App. 142, 334 S.E.2d 410, 1985 N.C. App. LEXIS 4056 (1985); State v. Head, 79 N.C. App. 1, 338 S.E.2d 908, 1986 N.C. App. LEXIS 1991 (1986); State v. Best, 79 N.C. App. 734, 340 S.E.2d 524, 1986 N.C. App. LEXIS 2112 (1986), overruled, State v. Maynor, 331 N.C. 695, 417 S.E.2d 453, 1992 N.C. LEXIS 417 (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 N.C. LEXIS 649 (1996).

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 N.C. LEXIS 1227 (1965); State v. Meadows, 272 N.C. 327, 158 S.E.2d 638, 1968 N.C. LEXIS 659 (1968); State v. Mercer, 275 N.C. 108, 165 S.E.2d 328, 1969 N.C. LEXIS 354 (1969), overruled, State v. Caddell, 287 N.C. 266, 215 S.E.2d 348, 1975 N.C. LEXIS 1120 (1975); State v. Bunn, 283 N.C. 444, 196 S.E.2d 777, 1973 N.C. LEXIS 992 (1973); State v. Williams, 288 N.C. 680, 220 S.E.2d 558, 1975 N.C. LEXIS 1036 (1975); State v. Lester, 289 N.C. 239, 221 S.E.2d 268, 1976 N.C. LEXIS 1246 (1976); State v. Alston, 295 N.C. 629, 247 S.E.2d 898, 1978 N.C. LEXIS 1076 (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 N.C. LEXIS 488 (1997), cert. denied, 522 U.S. 1056, 118 S. Ct. 710, 139 L. Ed. 2d 651, 1998 U.S. LEXIS 185 (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 N.C. App. LEXIS 89 (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 N.C. App. LEXIS 4056 (1985).

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 N.C. App. LEXIS 603 (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 N.C. LEXIS 1227 (1965); State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (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 N.C. LEXIS 1227 (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 N.C. LEXIS 1227 (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 N.C. LEXIS 1058 (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 N.C. App. LEXIS 2672 (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 N.C. LEXIS 909 (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 N.C. LEXIS 680 (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 N.C. LEXIS 375 (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 N.C. LEXIS 1070 (1978); State v. Mapp, 45 N.C. App. 574, 264 S.E.2d 348, 1980 N.C. App. LEXIS 2709 (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 N.C. LEXIS 373 (1922), overruled, State v. Phillips, 264 N.C. 508, 142 S.E.2d 337, 1965 N.C. LEXIS 1227 (1965); State v. Tilley, 18 N.C. App. 300, 196 S.E.2d 816, 1973 N.C. App. LEXIS 1843 (1973); State v. Fleming, 296 N.C. 559, 251 S.E.2d 430, 1979 N.C. LEXIS 1198 (1979); State v. Robbins, 309 N.C. 771, 309 S.E.2d 188, 1983 N.C. LEXIS 1456 (1983); State v. Hamilton, 77 N.C. App. 506, 335 S.E.2d 506, 1985 N.C. App. LEXIS 4170 (1985).

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 N.C. LEXIS 440 (1963); State v. Moore, 275 N.C. 198, 166 S.E.2d 652, 1969 N.C. LEXIS 375 (1969); State v. Drake, 8 N.C. App. 214, 174 S.E.2d 132, 1970 N.C. App. LEXIS 1519 (1970); State v. Patterson, 288 N.C. 553, 220 S.E.2d 600, 1975 N.C. LEXIS 1031 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1211, 1976 U.S. LEXIS 4216 (1976); State v. Cousins, 289 N.C. 540, 223 S.E.2d 338, 1976 N.C. LEXIS 1330 (1976); State v. Cates, 293 N.C. 462, 238 S.E.2d 465, 1977 N.C. LEXIS 972 (1977); State v. Fleming, 296 N.C. 559, 251 S.E.2d 430, 1979 N.C. LEXIS 1198 (1979); State v. Myers, 299 N.C. 671, 263 S.E.2d 768, 1980 N.C. LEXIS 996 (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 N.C. LEXIS 375 (1969); State v. Patterson, 288 N.C. 553, 220 S.E.2d 600, 1975 N.C. LEXIS 1031 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1211, 1976 U.S. LEXIS 4216 (1976); State v. Potter, 295 N.C. 126, 244 S.E.2d 397, 1978 N.C. LEXIS 982 (1978); State v. Fleming, 296 N.C. 559, 251 S.E.2d 430, 1979 N.C. LEXIS 1198 (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 N.C. LEXIS 1070 (1978); State v. Lang, 309 N.C. 512, 308 S.E.2d 317, 1983 N.C. LEXIS 1447 (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 N.C. App. LEXIS 2709 (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 N.C. LEXIS 1117 (1980); State v. Allen, 77 N.C. App. 142, 334 S.E.2d 410, 1985 N.C. App. LEXIS 4056 (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 N.C. LEXIS 440 (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 N.C. LEXIS 332 (1907).

Evidence was sufficient to sustain defendant’s conviction for murder by starvation because the act of starving another person to death, without more, sufficed to show malice; defendant proximately caused the child’s death by intentionally depriving him of needed hydration and nutrition, a showing that amply supported the trial court’s decision. State v. Cheeks, 2021-NCSC-69, 377 N.C. 528, 858 S.E.2d 566, 2021- NCSC-69, 2021 N.C. LEXIS 544 (2021).

Malice may be implied from the acts of defendant. State v. Mapp, 45 N.C. App. 574, 264 S.E.2d 348, 1980 N.C. App. LEXIS 2709 (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, 1961 N.C. LEXIS 412, cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49, 1961 U.S. LEXIS 646 (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 N.C. App. LEXIS 1853 (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 N.C. LEXIS 440 (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 N.C. LEXIS 749 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761, 1972 U.S. LEXIS 1952 (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, 1972 N.C. App. LEXIS 2273, cert. denied, 281 N.C. 316, 188 S.E.2d 900, 1972 N.C. LEXIS 1075 (1972); State v. Lang, 309 N.C. 512, 308 S.E.2d 317, 1983 N.C. LEXIS 1447 (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 N.C. LEXIS 1447 (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 N.C. LEXIS 1447 (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 N.C. LEXIS 1447 (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 N.C. App. LEXIS 846 (1998), aff'd, 350 N.C. 56, 510 S.E.2d 376, 1999 N.C. LEXIS 2 (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 N.C. App. LEXIS 2638 (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 N.C. App. LEXIS 193 (1999), aff'd, 351 N.C. 386, 527 S.E.2d 299, 2000 N.C. LEXIS 239 (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 N.C. App. LEXIS 1460 (2002), cert. denied, 357 N.C. 469, 587 S.E.2d 339, 2003 N.C. LEXIS 932 (2003).

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 N.C. App. LEXIS 514 (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 N.C. App. LEXIS 632 (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 N.C. LEXIS 409 (1955); State v. Revis, 253 N.C. 50, 116 S.E.2d 171, 1960 N.C. LEXIS 456 (1960); State v. Todd, 264 N.C. 524, 142 S.E.2d 154, 1965 N.C. LEXIS 1229 (1965); State v. Propst, 274 N.C. 62, 161 S.E.2d 560, 1968 N.C. LEXIS 734 (1968), limited, State v. Hammonds, 290 N.C. 1, 224 S.E.2d 595, 1976 N.C. LEXIS 1018 (1976); State v. Mercer, 275 N.C. 108, 165 S.E.2d 328, 1969 N.C. LEXIS 354 (1969), overruled, State v. Caddell, 287 N.C. 266, 215 S.E.2d 348, 1975 N.C. LEXIS 1120 (1975); State v. Jennings, 276 N.C. 157, 171 S.E.2d 447, 1970 N.C. LEXIS 649 (1970); State v. Drake, 8 N.C. App. 214, 174 S.E.2d 132, 1970 N.C. App. LEXIS 1519 (1970); State v. Reams, 277 N.C. 391, 178 S.E.2d 65, 1970 N.C. LEXIS 623 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74, 1971 U.S. LEXIS 1117 (1971), overruled, State v. Worsley, 336 N.C. 268, 443 S.E.2d 68, 1994 N.C. LEXIS 233 (1994); State v. Crump, 277 N.C. 573, 178 S.E.2d 366, 1971 N.C. LEXIS 1054 (1971); State v. Boyd, 278 N.C. 682, 180 S.E.2d 794, 1971 N.C. LEXIS 1023 (1971); State v. Winford, 279 N.C. 58, 181 S.E.2d 423, 1971 N.C. LEXIS 751 (1971); State v. Parker, 279 N.C. 168, 181 S.E.2d 432, 1971 N.C. LEXIS 763 (1971), cert. denied, 409 U.S. 987, 93 S. Ct. 342, 34 L. Ed. 2d 253, 1972 U.S. LEXIS 853 (1972); State v. McIlwain, 279 N.C. 469, 183 S.E.2d 538, 1971 N.C. LEXIS 849 (1971); State v. Wrenn, 279 N.C. 676, 185 S.E.2d 129, 1971 N.C. LEXIS 909 (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 N.C. App. LEXIS 1566 (1972), cert. denied, 282 N.C. 674, 194 S.E.2d 154, 1973 N.C. LEXIS 1147 (1973); State v. Barnwell, 17 N.C. App. 299, 194 S.E.2d 63, 1973 N.C. App. LEXIS 1343, cert. denied, 283 N.C. 106, 194 S.E.2d 634, 1973 N.C. LEXIS 910 (1973); State v. Oxendine, 24 N.C. App. 444, 210 S.E.2d 908, 1975 N.C. App. LEXIS 2400, cert. denied, 287 N.C. 667, 216 S.E.2d 910, 1975 N.C. LEXIS 1186 (1975); State v. Bush, 289 N.C. 159, 221 S.E.2d 333, 1976 N.C. LEXIS 1239, 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, 1976 N.C. LEXIS 1327, vacated in part, 429 U.S. 912, 97 S. Ct. 301, 50 L. Ed. 2d 278, 1976 U.S. LEXIS 3242 (1976); State v. Chavis, 30 N.C. App. 75, 226 S.E.2d 389, 1976 N.C. App. LEXIS 2149, cert. denied, 290 N.C. 778, 229 S.E.2d 33, 1976 N.C. LEXIS 1203 (1976); State v. Lee, 292 N.C. 617, 234 S.E.2d 574, 1977 N.C. LEXIS 1144 (1977); State v. Myers, 299 N.C. 671, 263 S.E.2d 768, 1980 N.C. LEXIS 996 (1980); State v. Lang, 309 N.C. 512, 308 S.E.2d 317, 1983 N.C. LEXIS 1447 (1983); State v. Robbins, 309 N.C. 771, 309 S.E.2d 188, 1983 N.C. LEXIS 1456 (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 N.C. LEXIS 332 (1907); State v. Brinkley, 183 N.C. 720, 110 S.E. 783, 1922 N.C. LEXIS 350 (1922); State v. Pasour, 183 N.C. 793, 111 S.E. 779, 1922 N.C. LEXIS 372 (1922); State v. Payne, 213 N.C. 719, 197 S.E. 573, 1938 N.C. LEXIS 184 (1938); State v. Hawkins, 214 N.C. 326, 199 S.E. 284, 1938 N.C. LEXIS 339 (1938); State v. Bright, 215 N.C. 537, 2 S.E.2d 541, 1939 N.C. LEXIS 304 (1939); State v. Chavis, 231 N.C. 307, 56 S.E.2d 678, 1949 N.C. LEXIS 533 (1949); State v. Lamm, 232 N.C. 402, 61 S.E.2d 188, 1950 N.C. LEXIS 542 (1950); State v. Brown, 249 N.C. 271, 106 S.E.2d 232, 1958 N.C. LEXIS 472 (1958); State v. Downey, 253 N.C. 348, 117 S.E.2d 39, 1960 N.C. LEXIS 663 (1960); State v. Faust, 254 N.C. 101, 118 S.E.2d 769, 1961 N.C. LEXIS 412, cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49, 1961 U.S. LEXIS 646 (1961); State v. Foust, 258 N.C. 453, 128 S.E.2d 889, 1963 N.C. LEXIS 440 (1963); State v. McCain, 6 N.C. App. 558, 170 S.E.2d 531, 1969 N.C. App. LEXIS 1227 (1969); State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788, 1981 N.C. LEXIS 1186 (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 N.C. LEXIS 132 (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 N.C. LEXIS 373 (1922), overruled, State v. Phillips, 264 N.C. 508, 142 S.E.2d 337, 1965 N.C. LEXIS 1227 (1965); State v. Walker, 193 N.C. 489, 137 S.E. 429, 1927 N.C. LEXIS 386 (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, 1975 N.C. App. LEXIS 2406, cert. denied, 287 N.C. 262, 214 S.E.2d 434, 1975 N.C. LEXIS 1106 (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 N.C. LEXIS 1227 (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, 1973 N.C. App. LEXIS 1343, cert. denied, 283 N.C. 106, 194 S.E.2d 634, 1973 N.C. LEXIS 910 (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 N.C. LEXIS 1227 (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 N.C. LEXIS 734 (1968), limited, State v. Hammonds, 290 N.C. 1, 224 S.E.2d 595, 1976 N.C. LEXIS 1018 (1976).

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 N.C. App. LEXIS 1519 (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 N.C. LEXIS 751 (1971); State v. Duboise, 279 N.C. 73, 181 S.E.2d 393, 1971 N.C. LEXIS 752 (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 N.C. App. LEXIS 1708 (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 N.C. App. LEXIS 1246 (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 N.C. App. LEXIS 2571 (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 N.C. LEXIS 488 (1997), cert. denied, 522 U.S. 1056, 118 S. Ct. 710, 139 L. Ed. 2d 651, 1998 U.S. LEXIS 185 (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 N.C. App. LEXIS 1309 (1999).

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 N.C. App. LEXIS 2745 (1986).

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, 1986 U.S. App. LEXIS 22069 (4th Cir.), cert. denied, 478 U.S. 1022, 106 S. Ct. 3315, 92 L. Ed. 2d 745, 1986 U.S. LEXIS 2868 (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 N.C. App. LEXIS 193 (1999), aff'd, 351 N.C. 386, 527 S.E.2d 299, 2000 N.C. LEXIS 239 (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 N.C. LEXIS 391 (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 N.C. App. LEXIS 69 (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 N.C. App. LEXIS 698 (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, 270 N.C. App. 345, 840 S.E.2d 881, 2020 N.C. App. LEXIS 166 (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 N.C. LEXIS 1034 (1975), rev'd, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 306, 1977 U.S. LEXIS 121 (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 N.C. LEXIS 1034 (1975), rev'd, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 306, 1977 U.S. LEXIS 121 (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 N.C. LEXIS 1246 (1976); State v. Biggs, 292 N.C. 328, 233 S.E.2d 512, 1977 N.C. LEXIS 1093 (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, 1976 N.C. App. LEXIS 2661, cert. denied, 289 N.C. 454, 223 S.E.2d 162, 1976 N.C. LEXIS 1314 (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 N.C. LEXIS 1093 (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 N.C. LEXIS 239 (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 N.C. LEXIS 1247 (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 N.C. LEXIS 1667 (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 N.C. LEXIS 1160 (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 N.C. LEXIS 1454 (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 N.C. LEXIS 1247 (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 N.C. LEXIS 1247 (1979); State v. Lang, 309 N.C. 512, 308 S.E.2d 317, 1983 N.C. LEXIS 1447 (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 N.C. LEXIS 1034 (1975), rev'd, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 306, 1977 U.S. LEXIS 121 (1977); State v. McLaurin, 46 N.C. App. 746, 266 S.E.2d 406, 1980 N.C. App. LEXIS 2919 (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 N.C. LEXIS 1160 (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 N.C. LEXIS 1447 (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 N.C. App. LEXIS 2413 (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 N.C. LEXIS 1348 (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 N.C. LEXIS 1348 (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 N.C. LEXIS 375 (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 N.C. LEXIS 1034 (1975), rev'd, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 306, 1977 U.S. LEXIS 121 (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 N.C. LEXIS 1386 (1982), cert. denied, 459 U.S. 1056, 103 S. Ct. 474, 74 L. Ed. 2d 622 (1982), writ denied, 366 S.E.2d 868, 1988 N.C. LEXIS 183 (1988), overruled, State v. Benson, 323 N.C. 318, 372 S.E.2d 517, 1988 N.C. LEXIS 612 (1988), overruled, State v. Robinson, 336 N.C. 78, 443 S.E.2d 306, 1994 N.C. LEXIS 229 (1994), overruled, State v. Rouse, 339 N.C. 59, 451 S.E.2d 543, 1994 N.C. LEXIS 719 (1994); State v. Robinson, 336 N.C. 78, 443 S.E.2d 306, 1994 N.C. LEXIS 229 (1994), cert. denied, 513 U.S. 1089, 115 S. Ct. 750, 130 L. Ed. 2d 650, 1995 U.S. LEXIS 276 (1995); State v. Rouse, 339 N.C. 59, 451 S.E.2d 543, 1994 N.C. LEXIS 719 (1994), cert. denied, 516 U.S. 832, 116 S. Ct. 107, 133 L. Ed. 2d 60, 1995 U.S. LEXIS 5654 (1995), overruled in part, State v. Hurst, 360 N.C. 181, 624 S.E.2d 309, 2006 N.C. LEXIS 7 (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 N.C. LEXIS 1454 (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 N.C. LEXIS 1670 (1982), limited, State v. Richardson, 341 N.C. 658, 462 S.E.2d 492, 1995 N.C. LEXIS 532 (1995).

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 N.C. LEXIS 1247 (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 N.C. LEXIS 1247 (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 U.S. LEXIS 70 (1975) and State v. Hankerson, 288 N.C. 632, 220 S.E.2d 575, 1975 N.C. LEXIS 1034 (1975), rev'd, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 306, 1977 U.S. LEXIS 121 (1977); State v. McLaurin, 33 N.C. App. 589, 235 S.E.2d 871, 1977 N.C. App. LEXIS 2257 (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, 1979 U.S. Dist. LEXIS 13170 (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 N.C. LEXIS 735 (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 N.C. LEXIS 1073 (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 N.C. LEXIS 1070 (1978); State v. Mapp, 45 N.C. App. 574, 264 S.E.2d 348, 1980 N.C. App. LEXIS 2709 (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 N.C. App. LEXIS 2571 (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 N.C. App. LEXIS 2112 (1986), overruled, State v. Maynor, 331 N.C. 695, 417 S.E.2d 453, 1992 N.C. LEXIS 417 (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 N.C. App. LEXIS 2112 (1986), overruled, State v. Maynor, 331 N.C. 695, 417 S.E.2d 453, 1992 N.C. LEXIS 417 (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 N.C. App. LEXIS 2112 (1986), overruled, State v. Maynor, 331 N.C. 695, 417 S.E.2d 453, 1992 N.C. LEXIS 417 (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 N.C. App. LEXIS 340 (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 N.C. LEXIS 1085 (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, 2007 N.C. App. LEXIS 1037 (2007), cert. denied, 552 U.S. 1126, 128 S. Ct. 941, 169 L. Ed. 2d 776, 2008 U.S. LEXIS 472 (2008).

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 N.C. App. LEXIS 1708 (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 N.C. LEXIS 124 (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 N.C. App. LEXIS 880 (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 N.C. App. LEXIS 1356 (2016).

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 N.C. App. LEXIS 1356 (2016).

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 N.C. LEXIS 917 (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 N.C. LEXIS 917 (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 N.C. LEXIS 2560 (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 N.C. LEXIS 6 (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 N.C. LEXIS 6 (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 N.C. LEXIS 117 (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 N.C. App. LEXIS 445 (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 N.C. App. LEXIS 144 (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 N.C. LEXIS 493 (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 N.C. App. LEXIS 633 (2000), aff'd in part and rev'd in part, 353 N.C. 364, 543 S.E.2d 478, 2001 N.C. LEXIS 267 (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 N.C. LEXIS 752 (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 N.C. App. LEXIS 2413 (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 N.C. LEXIS 1024 (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, 1981 N.C. App. LEXIS 2110 (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 N.C. LEXIS 699 (1961), cert. denied, 376 U.S. 927, 84 S. Ct. 691, 11 L. Ed. 2d 622, 1964 U.S. LEXIS 1942 (1964); State v. McCain, 6 N.C. App. 558, 170 S.E.2d 531, 1969 N.C. App. LEXIS 1227 (1969); State v. Moore, 46 N.C. App. 563, 265 S.E.2d 421, 1980 N.C. App. LEXIS 2841 (1980); State v. Farris, 93 N.C. App. 757, 379 S.E.2d 283, 1989 N.C. App. LEXIS 395 (1989).

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 N.C. App. LEXIS 2668 (1986), aff'd, 319 N.C. 599, 356 S.E.2d 352, 1987 N.C. LEXIS 2086 (1987); State v. Adams, 85 N.C. App. 200, 354 S.E.2d 338, 1987 N.C. App. LEXIS 2571 (1987); State v. Blake, 319 N.C. 599, 356 S.E.2d 352, 1987 N.C. LEXIS 2086 (1987); State v. Hemphill, 104 N.C. App. 431, 409 S.E.2d 744, 1991 N.C. App. LEXIS 1054 (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 N.C. App. LEXIS 2729 (1986).

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 N.C. App. LEXIS 2746 (1986).

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, 1987 N.C. App. LEXIS 2638 (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 N.C. App. LEXIS 3201 (1987).

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, 1988 N.C. App. LEXIS 357, cert. denied, 323 N.C. 627, 374 S.E.2d 597, 1988 N.C. LEXIS 761 (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, 1988 N.C. App. LEXIS 449, writ denied, 322 N.C. 484, 370 S.E.2d 237, 1988 N.C. LEXIS 318 (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 N.C. App. LEXIS 1128 (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 N.C. App. LEXIS 495 (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 N.C. App. LEXIS 495 (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, 1993 N.C. App. LEXIS 708 (1993), aff'd, 337 N.C. 674, 447 S.E.2d 349, 1994 N.C. LEXIS 490 (1994).

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 N.C. App. LEXIS 600 (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 N.C. App. LEXIS 373 (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 N.C. App. LEXIS 1535 (2003), aff'd, 359 N.C. 63, 602 S.E.2d 359, 2004 N.C. LEXIS 1129 (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 N.C. App. LEXIS 2133 (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 N.C. App. LEXIS 500 (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 N.C. App. LEXIS 2209 (2007), cert. denied, 555 U.S. 954, 129 S. Ct. 418, 172 L. Ed. 2d 303, 2008 U.S. LEXIS 7664 (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 N.C. App. LEXIS 2253 (2007), cert. denied, 363 N.C. 586, 683 S.E.2d 214, 2009 N.C. LEXIS 823 (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 N.C. App. LEXIS 51 (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 N.C. App. LEXIS 880 (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 N.C. App. LEXIS 2111 (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 N.C. LEXIS 241, cert. denied, 516 U.S. 996, 116 S. Ct. 533, 133 L. Ed. 2d 438, 1995 U.S. LEXIS 7957 (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, 1986 N.C. App. LEXIS 2003, writ denied, 316 N.C. 382, 342 S.E.2d 902, 1986 N.C. LEXIS 2089 (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 N.C. App. LEXIS 1058 (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 N.C. LEXIS 233 (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 N.C. App. LEXIS 1275 (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 N.C. App. LEXIS 600 (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 N.C. App. LEXIS 653 (2010).

VI.Defenses and Denials

A.In General

The common law “year and a day rule” purports to bar a prosecution for a person’s death where death actually occurs more than a year and a day after the time of the injuries inflicted by the defendant. The rationale for this rule was that causation was less certain when the victim’s death occurred so long after the defendant’s act, however, where there was sufficient evidence to support the conclusion that victim’s death was the proximate result of injuries he received due to defendant’s actions, the court would not apply that rule. State v. Vance, 98 N.C. App. 105, 390 S.E.2d 165, 1990 N.C. App. LEXIS 315 (1990), rev'd, 328 N.C. 613, 403 S.E.2d 495, 1991 N.C. LEXIS 324 (1991).

Defendant may rely on more than one defense. State v. Todd, 264 N.C. 524, 142 S.E.2d 154, 1965 N.C. LEXIS 1229 (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, 1988 N.C. App. LEXIS 1189, writ denied, 322 N.C. 327, 368 S.E.2d 871, 1988 N.C. LEXIS 246 (1988).

For discussion of defense of habitation, see State v. Roberson, 90 N.C. App. 219, 368 S.E.2d 3, 1988 N.C. App. LEXIS 449, writ denied, 322 N.C. 484, 370 S.E.2d 237, 1988 N.C. LEXIS 318 (1988).

B.Accident

When Homicide Will Be Excused as Accidental. —

A homicide will be excused as accidental where (1) the killing was unintentional, (2) the perpetrator acted with no wrongful purpose, (3) the killing occurred while the perpetrator was engaged in a lawful enterprise, and (4) the killing did not occur as a result of culpable negligence. State v. Knight, 87 N.C. App. 125, 360 S.E.2d 125, 1987 N.C. App. LEXIS 3074 (1987).

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 N.C. LEXIS 375 (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, 1978 N.C. App. LEXIS 2417, cert. denied, 295 N.C. 470, 246 S.E.2d 11, 1978 N.C. LEXIS 923 (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 N.C. LEXIS 354 (1969), overruled, State v. Caddell, 287 N.C. 266, 215 S.E.2d 348, 1975 N.C. LEXIS 1120 (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 N.C. LEXIS 2027 (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 N.C. LEXIS 1227 (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 N.C. LEXIS 909 (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 N.C. LEXIS 1251 (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 N.C. LEXIS 1227 (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 N.C. LEXIS 1220 (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 N.C. LEXIS 1227 (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 N.C. LEXIS 1227 (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 N.C. App. LEXIS 743 (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, 1976 N.C. App. LEXIS 2364, cert. denied, 289 N.C. 728, 224 S.E.2d 675, 1976 N.C. LEXIS 1385 (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, 1989 N.C. App. LEXIS 83, writ denied, 324 N.C. 338, 378 S.E.2d 802, 1989 N.C. LEXIS 225 (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, 1982 N.C. App. LEXIS 2827 (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 N.C. App. LEXIS 1724 (1977), cert. denied, 294 N.C. 445, 241 S.E.2d 847, 1978 N.C. LEXIS 1284 (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 N.C. LEXIS 2027 (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, 1987 N.C. App. LEXIS 2638 (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 N.C. LEXIS 2179 (1987).

C.Insanity

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 N.C. LEXIS 1886 (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 N.C. LEXIS 1993 (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 N.C. App. LEXIS 1965 (1974), cert. denied, 286 N.C. 419, 211 S.E.2d 799, 1975 N.C. LEXIS 1230 (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 N.C. LEXIS 1886 (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 N.C. LEXIS 2506 (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 N.C. LEXIS 1266 (1975); State v. Shepherd, 288 N.C. 346, 218 S.E.2d 176, 1975 N.C. LEXIS 982 (1975); State v. Hammonds, 290 N.C. 1, 224 S.E.2d 595, 1976 N.C. LEXIS 1018 (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 N.C. LEXIS 1997 (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 N.C. LEXIS 1993 (1985); State v. Evangelista, 319 N.C. 152, 353 S.E.2d 375, 1987 N.C. LEXIS 1886 (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 N.C. LEXIS 1886 (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 N.C. LEXIS 2506 (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, 1988 N.C. LEXIS 126, cert. denied, 487 U.S. 1220, 108 S. Ct. 2876, 101 L. Ed. 2d 911, 1988 U.S. LEXIS 2963 (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 N.C. LEXIS 1993 (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 N.C. LEXIS 6 (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 N.C. LEXIS 982 (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 N.C. LEXIS 488 (1997), cert. denied, 522 U.S. 1056, 118 S. Ct. 710, 139 L. Ed. 2d 651, 1998 U.S. LEXIS 185 (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 N.C. LEXIS 739 (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 N.C. LEXIS 293 (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 N.C. LEXIS 293 (1988) (overruling) State v. Kirkley, 308 N.C. 196, 302 S.E.2d 144, 1983 N.C. LEXIS 1158 (1983) (and) State v. Anderson, 303 N.C. 185, 278 S.E.2d 238, 1981 N.C. LEXIS 1100 (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, 1987 N.C. LEXIS 2168, cert. denied, 484 U.S. 916, 108 S. Ct. 267, 98 L. Ed. 2d 224, 1987 U.S. LEXIS 4370 (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 N.C. LEXIS 969 (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 N.C. LEXIS 2505 (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 N.C. LEXIS 1886 (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 N.C. LEXIS 6 (1988).

D.Intoxication

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 N.C. LEXIS 734 (1968), limited, State v. Hammonds, 290 N.C. 1, 224 S.E.2d 595, 1976 N.C. LEXIS 1018 (1976).

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 N.C. LEXIS 739 (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 N.C. LEXIS 970 (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, 1974 N.C. App. LEXIS 2355, cert. denied, 285 N.C. 760, 209 S.E.2d 284, 1974 N.C. LEXIS 1156 (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 N.C. App. LEXIS 2924 (1978); State v. King, 49 N.C. App. 499, 272 S.E.2d 26, 1980 N.C. App. LEXIS 3423 (1980).

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 N.C. LEXIS 938 (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 N.C. LEXIS 992 (1973); State v. McLaughlin, 286 N.C. 597, 213 S.E.2d 238, 1975 N.C. LEXIS 1267 (1975), vacated in part, 428 U.S. 903, 96 S. Ct. 3206, 29 L. Ed. 2d 1208, 1976 U.S. LEXIS 4202 (1976); State v. Bock, 288 N.C. 145, 217 S.E.2d 513, 1975 N.C. LEXIS 891 (1975), vacated in part, 428 U.S. 903, 96 S. Ct. 3208, 49 L. Ed. 2d 1209, 1976 U.S. LEXIS 4207 (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 N.C. LEXIS 737 (1970), vacated, 408 U.S. 937, 92 S. Ct. 2862, 33 L. Ed. 2d 754, 1972 U.S. LEXIS 1911 (1972); State v. Duncan, 282 N.C. 412, 193 S.E.2d 65, 1972 N.C. LEXIS 970 (1972); State v. Bunn, 283 N.C. 444, 196 S.E.2d 777, 1973 N.C. LEXIS 992 (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 N.C. LEXIS 1463 (1983); State v. Locklear, 322 N.C. 349, 368 S.E.2d 377, 1988 N.C. LEXIS 364 (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 N.C. LEXIS 737 (1970), vacated, 408 U.S. 937, 92 S. Ct. 2862, 33 L. Ed. 2d 754, 1972 U.S. LEXIS 1911 (1972); State v. Bunn, 283 N.C. 444, 196 S.E.2d 777, 1973 N.C. LEXIS 992 (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 N.C. LEXIS 608 (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 N.C. LEXIS 739 (1970); State v. Medley, 295 N.C. 75, 243 S.E.2d 374, 1978 N.C. LEXIS 947 (1978); State v. Lowery, 309 N.C. 763, 309 S.E.2d 232, 1983 N.C. LEXIS 1463 (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 N.C. LEXIS 970 (1972); State v. Bunn, 283 N.C. 444, 196 S.E.2d 777, 1973 N.C. LEXIS 992 (1973); State v. Medley, 295 N.C. 75, 243 S.E.2d 374, 1978 N.C. LEXIS 947 (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 N.C. LEXIS 737 (1970), vacated, 408 U.S. 937, 92 S. Ct. 2862, 33 L. Ed. 2d 754, 1972 U.S. LEXIS 1911 (1972); State v. Bunn, 283 N.C. 444, 196 S.E.2d 777, 1973 N.C. LEXIS 992 (1973); State v. Bock, 288 N.C. 145, 217 S.E.2d 513, 1975 N.C. LEXIS 891 (1975), vacated in part, 428 U.S. 903, 96 S. Ct. 3208, 49 L. Ed. 2d 1209, 1976 U.S. LEXIS 4207 (1976); State v. Locklear, 322 N.C. 349, 368 S.E.2d 377, 1988 N.C. LEXIS 364 (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 N.C. LEXIS 1267 (1975), vacated in part, 428 U.S. 903, 96 S. Ct. 3206, 29 L. Ed. 2d 1208, 1976 U.S. LEXIS 4202 (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 N.C. LEXIS 608 (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) (in light of) In re Howett, 76 N.C. App. 142, 331 S.E.2d 701, 1985 N.C. App. LEXIS 3819 (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 N.C. LEXIS 739 (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 N.C. LEXIS 947 (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 N.C. LEXIS 947 (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 N.C. LEXIS 737 (1970), vacated, 408 U.S. 937, 92 S. Ct. 2862, 33 L. Ed. 2d 754, 1972 U.S. LEXIS 1911 (1972); State v. Lowery, 309 N.C. 763, 309 S.E.2d 232, 1983 N.C. LEXIS 1463 (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 N.C. LEXIS 841 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2875, 33 L. Ed. 2d 762, 1972 U.S. LEXIS 1957 (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 N.C. LEXIS 2505 (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 N.C. LEXIS 5 (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, 1974 N.C. App. LEXIS 2355, cert. denied, 285 N.C. 760, 209 S.E.2d 284, 1974 N.C. LEXIS 1156 (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 N.C. LEXIS 377 (1989), vacated, 494 U.S. 1022, 110 S. Ct. 1465, 108 L. Ed. 2d 603, 1990 U.S. LEXIS 1489 (1990).

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 N.C. LEXIS 242 (1995).

E.Provocation

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 N.C. LEXIS 1229 (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 N.C. LEXIS 140 (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, 1978 N.C. App. LEXIS 2476, cert. denied, 295 N.C. 468, 246 S.E.2d 216, 1978 N.C. LEXIS 913 (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 N.C. App. LEXIS 3076 (1987).

For case defining the term “heat of passion,” see State v. Pope, 24 N.C. App. 217, 210 S.E.2d 267, 1974 N.C. App. LEXIS 1965 (1974), cert. denied, 286 N.C. 419, 211 S.E.2d 799, 1975 N.C. LEXIS 1230 (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 N.C. LEXIS 1073 (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 N.C. LEXIS 1073 (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 N.C. App. LEXIS 2112 (1986), overruled, State v. Maynor, 331 N.C. 695, 417 S.E.2d 453, 1992 N.C. LEXIS 417 (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 N.C. LEXIS 418 (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, 1995 N.C. LEXIS 94 (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, 1978 N.C. App. LEXIS 2476, cert. denied, 295 N.C. 468, 246 S.E.2d 216, 1978 N.C. LEXIS 913 (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 N.C. App. LEXIS 3389 (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 N.C. LEXIS 2561 (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 N.C. LEXIS 401 (1991).

F.Self-Defense

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 N.C. LEXIS 1188 (1981); State v. Cooke, 306 N.C. 117, 291 S.E.2d 649, 1982 N.C. LEXIS 1373 (1982); State v. Bush, 307 N.C. 152, 297 S.E.2d 563, 1982 N.C. LEXIS 1670 (1982), limited, State v. Richardson, 341 N.C. 658, 462 S.E.2d 492, 1995 N.C. LEXIS 532 (1995); State v. Vaughan, 59 N.C. App. 318, 296 S.E.2d 516, 1982 N.C. App. LEXIS 3106 (1982), cert. denied, 461 U.S. 943, 103 S. Ct. 2120, 77 L. Ed. 2d 1301, 1983 U.S. LEXIS 219 (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 N.C. LEXIS 158 (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 N.C. LEXIS 1188 (1981); State v. Vaughan, 59 N.C. App. 318, 296 S.E.2d 516, 1982 N.C. App. LEXIS 3106 (1982), cert. denied, 461 U.S. 943, 103 S. Ct. 2120, 77 L. Ed. 2d 1301, 1983 U.S. LEXIS 219 (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 N.C. LEXIS 1188 (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 N.C. LEXIS 1229 (1965); State v. Jackson, 284 N.C. 383, 200 S.E.2d 596, 1973 N.C. LEXIS 870 (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 N.C. LEXIS 1229 (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 N.C. LEXIS 937 (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 N.C. App. LEXIS 1876 (1975), cert. denied, 289 N.C. 141, 220 S.E.2d 799, 1976 N.C. LEXIS 1233 (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 N.C. App. LEXIS 1876 (1975), cert. denied, 289 N.C. 141, 220 S.E.2d 799, 1976 N.C. LEXIS 1233 (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 N.C. LEXIS 413 (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, 1972 N.C. App. LEXIS 2043, cert. denied, 281 N.C. 157, 188 S.E.2d 366, 1972 N.C. LEXIS 1035 (1972); State v. Davis, 289 N.C. 500, 223 S.E.2d 296, 1976 N.C. LEXIS 1326, vacated in part, 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 N.C. App. LEXIS 4170 (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 N.C. App. LEXIS 1876 (1975), cert. denied, 289 N.C. 141, 220 S.E.2d 799, 1976 N.C. LEXIS 1233 (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 N.C. LEXIS 982 (1978); State v. Norris, 303 N.C. 526, 279 S.E.2d 570, 1981 N.C. LEXIS 1188 (1981); State v. Cooke, 306 N.C. 117, 291 S.E.2d 649, 1982 N.C. LEXIS 1373 (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 N.C. LEXIS 888 (1978).

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 N.C. LEXIS 982 (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 N.C. LEXIS 1886 (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 N.C. LEXIS 716 (1994).

Self-Defense and Felony Murder. —

Absent (i) a reasonable basis upon which the jury may have disbelieved the prosecution’s evidence of the underlying felony; (ii) a factual showing that defendant clearly articulated his intent to withdraw from the situation; or (iii) a factual showing that at the time of the violence the dangerous situation no longer existed, defendant has forfeited his right to claim self-defense as a defense to felony murder. State v. Bell, 338 N.C. 363, 450 S.E.2d 710, 1994 N.C. LEXIS 711 (1994), cert. denied, 515 U.S. 1163, 115 S. Ct. 2619, 132 L. Ed. 2d 861, 1995 U.S. LEXIS 4361 (1995), limited, State v. Richardson, 341 N.C. 658, 462 S.E.2d 492, 1995 N.C. LEXIS 532 (1995).

And Is Guilty at Least of Manslaughter. —

If defendant believed it was necessary to kill the deceased in order to save herself from death or great bodily harm, and if defendant’s belief was reasonable in that the circumstances as they appeared to her at the time were sufficient to create such a belief in the mind of a person of ordinary firmness, but defendant, although without murderous intent, was the aggressor in bringing on the difficulty, or defendant used excessive force, the defendant under those circumstances has only the imperfect right of self-defense, having lost the benefit of perfect self-defense, and is guilty at least of voluntary manslaughter. State v. Norris, 303 N.C. 526, 279 S.E.2d 570, 1981 N.C. LEXIS 1188 (1981); State v. Vaughan, 59 N.C. App. 318, 296 S.E.2d 516, 1982 N.C. App. LEXIS 3106 (1982), cert. denied, 461 U.S. 943, 103 S. Ct. 2120, 77 L. Ed. 2d 1301, 1983 U.S. LEXIS 219 (1983).

Where the issue in a homicide case narrows to the exercise of either the perfect or imperfect right of self-defense, as the jury may find, the question for the jury is not limited to whether defendant is guilty of first-degree murder or not guilty by reason of self-defense. When the defendant has exercised the imperfect right of self-defense, the homicide is reduced from murder to manslaughter. State v. Norris, 303 N.C. 526, 279 S.E.2d 570, 1981 N.C. LEXIS 1188 (1981).

Unless He Quits the Combat. —

A defendant, prosecuted for homicide in a difficulty which he had himself wrongfully provoked, may not maintain the position of perfect self-defense unless, at a time prior to the killing, he had quitted the combat. State v. Potter, 295 N.C. 126, 244 S.E.2d 397, 1978 N.C. LEXIS 982 (1978).

A defendant, prosecuted for a homicide in a situation that he has provoked by the use of language “calculated and intended” to bring on the encounter, cannot maintain the position of perfect self-defense unless, at a time prior to the killing, he withdrew from the encounter within the meaning of the law. State v. Watson, 287 N.C. 147, 214 S.E.2d 85, 1975 N.C. LEXIS 1073 (1975).

In order that the right of self-defense may be restored to a person who has provoked or commenced a combat, he must attempt in good faith to withdraw from the combat. He must also in some manner make known his intention to his adversary; and if the circumstances are such that he cannot notify his adversary, as where the injuries inflicted by him are such as to deprive his adversary of his capacity to receive impressions concerning his assailant’s design and endeavor to cease further combat, it is the assailant’s fault and he must bear the consequences. As long as a person keeps his gun in his hand prepared to shoot, the person opposing him is not expected or required to accept any act or statement as indicative of an intent to discontinue the assault. State v. Winford, 279 N.C. 58, 181 S.E.2d 423, 1971 N.C. LEXIS 751 (1971).

Instruction as to Precipitation of Fight or Assault. —

In a prosecution for the murder of a military policeman while defendant was in a holding cell after having been illegally arrested, trial court’s instruction, dealing with the right to kill in self-defense, that “one enters a fight voluntarily if he uses toward his opponent such abusive language which considering all of the circumstances is calculated and intended to bring on a fight, and if a person precipitates an altercation or a fight with the intent to provoke a deadly assault by the victim in order that he might kill him the subsequent killing of the victim in response to the attack is murder” was a correct statement of the law and was supported by the evidence. State v. Sanders, 303 N.C. 608, 281 S.E.2d 7, 1981 N.C. LEXIS 1201, cert. denied, 454 U.S. 973, 102 S. Ct. 523, 70 L. Ed. 2d 392, 1981 U.S. LEXIS 4315 (1981).

Amount of Force Used. —

If the defendant in killing the deceased was acting in self-defense but used more force than was necessary or reasonably appeared necessary under the circumstances, he is guilty of voluntary manslaughter. State v. Burden, 36 N.C. App. 332, 244 S.E.2d 204, 1978 N.C. App. LEXIS 2476, cert. denied, 295 N.C. 468, 246 S.E.2d 216, 1978 N.C. LEXIS 913 (1978).

The defense of habitation or domicile is limited to those cases where a defendant is attempting to prevent a forcible entry into his home. State v. McLaurin, 46 N.C. App. 746, 266 S.E.2d 406, 1980 N.C. App. LEXIS 2919 (1980).

For a case reviewing the law of the defense of habitation, and the distinction between the defense of habitation and ordinary self-defense, see State v. McCombs, 297 N.C. 151, 253 S.E.2d 906, 1979 N.C. LEXIS 1139 (1979).

Under the evidence, the trial court in a second-degree murder case erred in failing to charge the jury on defense of habitation. State v. Hedgepeth, 46 N.C. App. 569, 265 S.E.2d 413, 1980 N.C. App. LEXIS 2839 (1980).

Neither permanency of residence nor a leasehold interest in the premises is required before a person is legally justified in standing her ground, rather than retreating, before using deadly force in self-defense. One must show only that she is a member of a household, however temporarily, and that she possesses an intent to reside in that particular place at the time of the attack. State v. Stevenson, 81 N.C. App. 409, 344 S.E.2d 334, 1986 N.C. App. LEXIS 2315 (1986).

When a person who is free from fault in bringing on a difficulty is attacked in his own home or on his own premises, the law imposes on him no duty to retreat before he can justify his fighting in self-defense, regardless of the character of the assault, but he is entitled to stand his ground, to repel force with force, and to increase his force, so as not only to resist, but also to overcome the assault and secure himself from all harm. This, of course, would not excuse the defendant if he used excessive force in repelling the attack and overcoming his adversary. This rule applies even when both defendant and victim reside in the same dwelling. State v. Hearn, 89 N.C. App. 103, 365 S.E.2d 206, 1988 N.C. App. LEXIS 240 (1988).

For discussion of defense of habitation, see State v. Roberson, 90 N.C. App. 219, 368 S.E.2d 3, 1988 N.C. App. LEXIS 449, writ denied, 322 N.C. 484, 370 S.E.2d 237, 1988 N.C. LEXIS 318 (1988).

Once an assailant gains entry into an occupied dwelling, the usual rules of self-defense replace the rules governing defense of habitation. State v. Roberson, 90 N.C. App. 219, 368 S.E.2d 3, 1988 N.C. App. LEXIS 449, writ denied, 322 N.C. 484, 370 S.E.2d 237, 1988 N.C. LEXIS 318 (1988).

Use of Force in Resisting Unlawful Arrest. —

In a prosecution for the murder of a military policeman while defendant was in a holding cell after he had been unlawfully arrested, trial court did not err in failing to charge that defendant was entitled to use deadly force if such was required to prevent the arrest or to free himself from unlawful confinement, since the victim of an unlawful arrest is not ipso facto entitled to kill or to use deadly force against the person attempting arrest. State v. Sanders, 303 N.C. 608, 281 S.E.2d 7, 1981 N.C. LEXIS 1201, cert. denied, 454 U.S. 973, 102 S. Ct. 523, 70 L. Ed. 2d 392, 1981 U.S. LEXIS 4315 (1981).

Battered Spouse. —

For case declining to expand the law of self-defense so as to entitle a battered spouse who killed her intoxicated husband while he slept to jury instructions on either perfect or imperfect self-defense, see State v. Norman, 324 N.C. 253, 378 S.E.2d 8, 1989 N.C. LEXIS 158 (1989).

Evidence of Victim’s Character. —

When self-defense is raised as a defense, the defendant may produce evidence of the victim’s character tending to show (1) that the victim was the aggressor, or (2) that defendant had a reasonable apprehension of death or bodily harm, or both. State v. Corn, 307 N.C. 79, 296 S.E.2d 261, 1982 N.C. LEXIS 1591 (1982).

Evidence of the deceased’s violent character, whether known to the defendant or not, is admissible in a homicide case where self-defense is in issue and the State’s evidence is wholly circumstantial or the nature of the transaction is in doubt, in order to shed light on the question of which party was the first aggressor. State v. Barbour, 295 N.C. 66, 243 S.E.2d 380, 1978 N.C. LEXIS 946 (1978); State v. Price, 301 N.C. 437, 272 S.E.2d 103, 1980 N.C. LEXIS 1185 (1980).

Evidence as to the general moral character of the deceased is not admissible in a prosecution for homicide. State v. Vestal, 278 N.C. 561, 180 S.E.2d 755, 1971 N.C. LEXIS 1013 (1971).

It is true that upon a proper showing that the accused in a homicide case may have acted in self-defense, the jury is entitled to hear and evaluate evidence of uncommunicated threats and evidence of the general character of the victim as a violent and dangerous man; however, as a condition precedent to the admissibility of such evidence, the defendant must first present viable evidence of the necessity of the self-defense. State v. Jones, 83 N.C. App. 593, 351 S.E.2d 122, 1986 N.C. App. LEXIS 2745 (1986).

In defendant’s murder trial, defendant was not required to make an offer of proof regarding testimony that her victim had told her former employee that he was going to “shoot up his house” that was excluded when the trial court granted the state’s motion to strike the testimony. State v. Everett, 178 N.C. App. 44, 630 S.E.2d 703, 2006 N.C. App. LEXIS 1302 (2006), aff'd, 361 N.C. 217, 639 S.E.2d 442, 2007 N.C. LEXIS 36 (2007).

In defendant’s trial ending in her conviction for second-degree murder, evidence of her prior conduct in shooting a dog was irrelevant under G.S. 8C-1-401; the evidence was not necessary to show that defendant was knowledgeable about firearms or had used a gun in the past because defendant had admitted that she shot her victim and whether or not she knew how to use a pistol was not contested, and the evidence was irrelevant to her claim of self-defense. State v. Everett, 178 N.C. App. 44, 630 S.E.2d 703, 2006 N.C. App. LEXIS 1302 (2006), aff'd, 361 N.C. 217, 639 S.E.2d 442, 2007 N.C. LEXIS 36 (2007).

Testimony from a witness who saw defendant’s victim breaking car windows at an automobile dealership should have been admitted during her murder trial, which ended in her conviction for second-degree murder, as an essential element of her assertion of self-defense under G.S. 8C-1-405(b). State v. Everett, 178 N.C. App. 44, 630 S.E.2d 703, 2006 N.C. App. LEXIS 1302 (2006), aff'd, 361 N.C. 217, 639 S.E.2d 442, 2007 N.C. LEXIS 36 (2007).

Erroneous exclusion of testimony from a car dealership employee who saw defendant’s victim breaking car windows at the dealership, which should have been admitted during defendant’s murder trial as evidence of the victim’s violent character, was prejudicial under G.S. 15A-1443(a) even though defendant testified to the same incident on direct and redirect examination. State v. Everett, 178 N.C. App. 44, 630 S.E.2d 703, 2006 N.C. App. LEXIS 1302 (2006), aff'd, 361 N.C. 217, 639 S.E.2d 442, 2007 N.C. LEXIS 36 (2007).

Evidence of Acts of Violence Committed by Victim. —

In a criminal prosecution for homicide, if there is a proper showing that the accused may have acted in self-defense or some comparable justification, evidence of specific acts of violence committed by the victim is admissible. However, as a condition precedent to the admissibility of such evidence, the defendant must first present viable evidence of the necessity of self-defense. This logically extends to defense of others. State v. Stone, 73 N.C. App. 691, 327 S.E.2d 644, 1985 N.C. App. LEXIS 3391 (1985).

If defendant seeks to offer evidence for the purpose of showing that the victim was the aggressor, it must be done through testimony concerning the victim’s general reputation for violence, but this rule does not render admissible evidence of specific acts of violence which have no connection with the homicide. State v. Corn, 307 N.C. 79, 296 S.E.2d 261, 1982 N.C. LEXIS 1591 (1982).

Where the defendant in a homicide prosecution has offered evidence tending to show self-defense, testimony by him of specific acts of violence committed by the deceased in his presence or of which the defendant had knowledge prior to the homicide is admissible to show the deceased’s character as a violent and dangerous fighting man, in order to permit the jury to determine whether the defendant acted under a reasonable apprehension of danger to his person or his life. State v. Barbour, 295 N.C. 66, 243 S.E.2d 380, 1978 N.C. LEXIS 946 (1978).

The trial court’s actions in excluding a witness’s testimony regarding specific acts of violence by the deceased which were not shown to be within defendant’s knowledge prior to the homicide and striking her statements as to the deceased’s violent character based solely on her personal experience were correct, since specific acts and a witness’s personal opinion are not admissible to show another person’s character as evidence of his conduct on a particular occasion. State v. Barbour, 295 N.C. 66, 243 S.E.2d 380, 1978 N.C. LEXIS 946 (1978).

Evidence to Be Interpreted in Light Most Favorable to Defendant. —

In determining whether there was any evidence of self defense presented, the evidence must be interpreted in the light most favorable to the defendant. State v. Gappins, 320 N.C. 64, 357 S.E.2d 654, 1987 N.C. LEXIS 2177 (1987).

Error in Preventing Defendant from Testifying About Fear for Life. —

In first-degree murder case where defendant was prevented from testifying to an essential element of self-defense, his fear for his life, this was error and the court granted a new trial. State v. Reed, 324 N.C. 535, 379 S.E.2d 828, 1989 N.C. LEXIS 294 (1989).

The State bears the burden of proving that defendant did not act in self-defense; to survive a motion to dismiss, the State must therefore present sufficient substantial evidence which, when taken in the light most favorable to the State, is sufficient to convince a rational trier of fact that defendant did not act in self-defense. State v. Hamilton, 77 N.C. App. 506, 335 S.E.2d 506, 1985 N.C. App. LEXIS 4170 (1985).

When the issue of self-defense is raised, the State continues to have the burden of proving each element of the crime of murder in the second degree beyond a reasonable doubt. Simultaneously, the additional burden is added of proving malice based on inferences rather than presumptions. State v. McLaurin, 46 N.C. App. 746, 266 S.E.2d 406, 1980 N.C. App. LEXIS 2919 (1980).

The burden was on the State to prove beyond a reasonable doubt that defendant did not act in self-defense, there being evidence in the case that he did. State v. Potter, 295 N.C. 126, 244 S.E.2d 397, 1978 N.C. LEXIS 982 (1978).

In a conviction of first-degree felony murder under G.S. 14-17 based on discharging a firearm into an occupied vehicle under G.S. 14-34.1, the jury instructions did not deprive defendant of his defense of self-defense but properly placed the burden of proof on the State as to self-defense, with respect to both the degrees of homicide and as to the firing into an occupied vehicle. State v. Hunt, 198 N.C. App. 488, 680 S.E.2d 720, 2009 N.C. App. LEXIS 1344 (2009), cert. dismissed, 368 N.C. 926, 786 S.E.2d 919, 2016 N.C. LEXIS 522 (2016).

Such Burden May Not Be Shifted to Defendant. —

On review of a conviction for second-degree murder the Supreme Court of North Carolina erred in declining to hold retroactive the rule in Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975), which requires the State to establish all elements of a criminal offense beyond a reasonable doubt, and which invalidates presumptions that shift the burden of proving such elements, including self-defense, to the defendant. Hankerson v. North Carolina, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 306, 1977 U.S. LEXIS 121 (1977).

Instruction Placing Burden of Proving Self-Defense on Defendant Unconstitutional. —

In a prosecution for second-degree murder, an instruction placing the burden of proving self-defense upon the defendant was constitutionally infirm, since North Carolina considers unlawfulness, or the absence of self-defense, to be an element of murder. Wynn v. Mahoney, 600 F.2d 448, 1979 U.S. App. LEXIS 13537 (4th Cir.), cert. denied, 444 U.S. 950, 100 S. Ct. 423, 62 L. Ed. 2d 320, 1979 U.S. LEXIS 3727 (1979).

When Defendant Is Entitled to Instruction on Self-Defense. —

A defendant is entitled to an instruction on self-defense if there is any evidence in the record from which it can be determined that it was necessary or reasonably appeared to be necessary for him to kill his adversary in order to protect himself from death or great bodily harm. If, however, there is no evidence from which the jury reasonably could find that the defendant in fact believed that it was necessary to kill his adversary to protect himself from death or great bodily harm, the defendant is not entitled to have the jury instructed on self-defense. It is for the court to determine in the first instance as a matter of law whether there is any evidence that the defendant reasonably believed it to be necessary to kill his adversary in order to protect himself from death or great bodily harm. State v. Bush, 307 N.C. 152, 297 S.E.2d 563, 1982 N.C. LEXIS 1670 (1982), limited, State v. Richardson, 341 N.C. 658, 462 S.E.2d 492, 1995 N.C. LEXIS 532 (1995).

When the State or defendant produces evidence that defendant acted in self-defense, the question of self-defense becomes a substantial feature of the case requiring the trial judge to state and apply the law of self-defense to the facts of the case. State v. Davis, 289 N.C. 500, 223 S.E.2d 296, 1976 N.C. LEXIS 1326, vacated in part, 429 U.S. 809, 97 S. Ct. 47, 50 L. Ed. 2d 69 (1976).

If the evidence is insufficient to evoke the doctrine of self-defense in a prosecution for first-degree murder, the trial judge is not required to give instructions on that defense even when specifically requested. State v. Davis, 289 N.C. 500, 223 S.E.2d 296, 1976 N.C. LEXIS 1326, vacated in part, 429 U.S. 809, 97 S. Ct. 47, 50 L. Ed. 2d 69 (1976).

Where there is evidence that defendant acted in self-defense, the court must charge on this aspect, even though there is contradictory evidence by the State or discrepancies in defendant’s evidence. State v. Dooley, 285 N.C. 158, 203 S.E.2d 815, 1974 N.C. LEXIS 930 (1974).

If the court determines as a matter of law that there is no evidence in the record from which the jury could find that the defendant reasonably could have believed it to be necessary to kill to protect himself from death or great bodily harm, then the defendant is not entitled to an instruction on self-defense. State v. Hughes, 82 N.C. App. 724, 348 S.E.2d 147, 1986 N.C. App. LEXIS 2619 (1986).

A defendant is entitled to an instruction on self-defense if there is any evidence in the record which establishes that it was necessary or that it reasonably appeared to the defendant to be necessary to kill in order to protect himself from death or great bodily harm. State v. Hughes, 82 N.C. App. 724, 348 S.E.2d 147, 1986 N.C. App. LEXIS 2619 (1986).

When defendant’s evidence is sufficient to support an instruction on self-defense, the instruction must be given, even though the State’s evidence is contradictory. State v. Hughes, 82 N.C. App. 724, 348 S.E.2d 147, 1986 N.C. App. LEXIS 2619 (1986).

A defendant is entitled to an instruction on perfect self defense as an excuse for a killing when evidence is presented tending to show that, at the time of the killing: (1) it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and (2) defendant’s belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness; and (3) defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and (4) defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm. State v. Gappins, 320 N.C. 64, 357 S.E.2d 654, 1987 N.C. LEXIS 2177 (1987).

Where there is no evidence from which the jury reasonably could find that the defendant in fact believed that it was necessary to kill his adversary to protect himself from death or great bodily harm, the defendant is not entitled to have the jury instructed on self defense. State v. Blankenship, 320 N.C. 152, 357 S.E.2d 357, 1987 N.C. LEXIS 2175 (1987); State v. Gappins, 320 N.C. 64, 357 S.E.2d 654, 1987 N.C. LEXIS 2177 (1987).

Before defendant is entitled to an instruction on self-defense, two questions must be answered in the affirmative: (1) Is there any evidence that the defendant in fact formed a belief that it was necessary to kill her adversary in order to protect herself from death or great bodily harm, and (2) If so, was that belief reasonable? If both queries are answered in the affirmative, then an instruction on self-defense must be given. State v. Hayes, 88 N.C. App. 749, 364 S.E.2d 712, 1988 N.C. App. LEXIS 1189, writ denied, 322 N.C. 327, 368 S.E.2d 871, 1988 N.C. LEXIS 246 (1988).

Request Is Unnecessary. —

As the defense of self-defense was a substantial and essential feature of the case arising on defendant’s evidence, no special prayers for instructions were required, and the judge’s failure to charge with respect thereto was prejudicial error, and entitled defendant to a new trial. State v. Todd, 264 N.C. 524, 142 S.E.2d 154, 1965 N.C. LEXIS 1229 (1965).

The trial court is required to charge on self-defense, even without a special request, when, but only when, there is some construction of the evidence from which could be drawn a reasonable inference that the defendant assaulted the victim in self-defense. State v. Lewis, 27 N.C. App. 426, 219 S.E.2d 554, 1975 N.C. App. LEXIS 1876 (1975), cert. denied, 289 N.C. 141, 220 S.E.2d 799, 1976 N.C. LEXIS 1233 (1976).

When Instruction on Imperfect Self-Defense to Be Given. —

A defendant is entitled to an instruction on imperfect self defense only if the first two elements of perfect self defense are shown to exist. State v. Gappins, 320 N.C. 64, 357 S.E.2d 654, 1987 N.C. LEXIS 2177 (1987).

Excessive Force Basis for Imperfect Self-Defense. —

Whether defendant used excessive force is a question for the jury to determine; thus, the trial court properly instructed jury that if it found defendant to have used excessive force in defending himself, he was entitled, at most, to the defense of imperfect self-defense. State v. Bell, 338 N.C. 363, 450 S.E.2d 710, 1994 N.C. LEXIS 711 (1994), cert. denied, 515 U.S. 1163, 115 S. Ct. 2619, 132 L. Ed. 2d 861, 1995 U.S. LEXIS 4361 (1995), limited, State v. Richardson, 341 N.C. 658, 462 S.E.2d 492, 1995 N.C. LEXIS 532 (1995).

Instruction on Defense of Another. —

North Carolina law recognizes that a person may not only take life in his own defense, but he may also do so in defense of another who stands in a family relation to him. The failure to instruct the jury on this fundamental issue constitutes prejudicial error. State v. Spencer, 21 N.C. App. 445, 204 S.E.2d 552, 1974 N.C. App. LEXIS 1832 (1974).

Instruction on Self-Defense Required. —

Where the State’s evidence presented testimony which would have permitted, but not required, the jury to find that: (1) Defendant was without fault in bringing on the difficulty, (2) deceased was armed with and first assaulted defendant with a deadly weapon, (3) the fatal blow was struck during a struggle for the weapon first used by the deceased and (4) the defendant used such force as was necessary or as appeared to him to be necessary to save himself from death or great bodily harm, the evidence was sufficient to require the trial judge to state and apply the law of self-defense to the facts of the case and the court’s failure to so do constituted prejudicial error. State v. Deck, 285 N.C. 209, 203 S.E.2d 830, 1974 N.C. LEXIS 937 (1974).

Defendant on trial for second degree murder held entitled to an instruction on self-defense. State v. Hayes, 88 N.C. App. 749, 364 S.E.2d 712, 1988 N.C. App. LEXIS 1189, writ denied, 322 N.C. 327, 368 S.E.2d 871, 1988 N.C. LEXIS 246 (1988).

Where there was testimony that 1) defendant and decedent resided in the same house; 2) defendant loaded a gun in fear that decedent’s father was coming to the house to “cut” her; 3) defendant saw decedent approaching the house with what appeared to her to be a pipe or tire iron in his hand; 4) decedent and defendant argued and decedent threatened defendant’s life; and 5) defendant shot decedent as he was coming at her with a pipe raised in his hand, it was error for the court to fail to submit the question and to charge upon defendant’s right to stand her ground without retreating. State v. Hearn, 89 N.C. App. 103, 365 S.E.2d 206, 1988 N.C. App. LEXIS 240 (1988) (distinguishing) State v. Bennett, 67 N.C. App. 407, 313 S.E.2d 277, 1984 N.C. App. LEXIS 3073 (1984) (which held that a trial court’s refusal to instruct the jury that there was no duty to retreat was not in error because there was uncontradicted evidence that defendant was the initial aggressor) .

Defendant who undeniably was the aggressor in the final confrontation when he went to victim’s trailer about 3 a.m., woke him, and shot him to death, believing it necessary to kill victim before victim killed him, was not entitled to an instruction on the doctrine of imperfect self-defense, because he was the aggressor with murderous intent in the fatal confrontation. State v. Mize, 316 N.C. 48, 340 S.E.2d 439, 1986 N.C. LEXIS 1886 (1986).

In a prosecution for first-degree murder, evidence of powder burns on defendant’s hands, which at most permitted an inference that defendant struggled for possession of the murder weapon before the fatal shots were fired, was insufficient to require an instruction to the jury on self-defense. State v. Davis, 289 N.C. 500, 223 S.E.2d 296, 1976 N.C. LEXIS 1326, vacated in part, 429 U.S. 809, 97 S. Ct. 47, 50 L. Ed. 2d 69 (1976).

The trial court was correct in refusing to instruct the jury on either perfect or imperfect self defense, where the defendant’s evidence tended to show that the shooting was an accident. State v. Blankenship, 320 N.C. 152, 357 S.E.2d 357, 1987 N.C. LEXIS 2175 (1987).

Where evidence clearly tended to show that defendant was the aggressor the court did not err by instructing jury that self-defense would not be available to defendant if he were found to be aggressor. State v. Williams, 100 N.C. App. 567, 397 S.E.2d 364, 1990 N.C. App. LEXIS 1077 (1990), cert. dismissed, 328 N.C. 576, 403 S.E.2d 520, 1991 N.C. LEXIS 274 (1991).

Court did not err by refusing to give jury instruction concerning right of a person who is without fault in a situation to stand his ground, with no duty to retreat, when in his own home where there was no evidence suggesting that defendant was assaulted or attacked by victim at time of shooting. State v. Williams, 100 N.C. App. 567, 397 S.E.2d 364, 1990 N.C. App. LEXIS 1077 (1990), cert. dismissed, 328 N.C. 576, 403 S.E.2d 520, 1991 N.C. LEXIS 274 (1991).

Defendant was awarded a new trial on charges of second degree murder because there was testimony from the prosecution’s witnesses that defendant returned fire only after a person in the car shot at defendant. According to such evidence, defendant was not the initial aggressor and his right to stand his ground was at least a substantial feature of his defense of self-defense; because this instructional error had a probable impact on the jury’s finding of guilt, the error was prejudicial, the trial court’s failure to give the instruction was thus plain error. State v. Davis, 177 N.C. App. 98, 627 S.E.2d 474, 2006 N.C. App. LEXIS 696 (2006).

Instruction on Self-Defense Not Required. —

Where defendant did not testify and presented absolutely no evidence, either circumstantial or direct, which would establish the necessity of his killing the victim but, instead, defendant relied on permissible inferences from testimony elicited on cross-examination of the State’s witnesses; and where the evidence established that defendant, at some point, introduced a knife into the fight and stabbed the victim, the trial court’s decision not to give an instruction on self-defense was proper. State v. Stone, 104 N.C. App. 448, 409 S.E.2d 719, 1991 N.C. App. LEXIS 1063 (1991).

If there is no evidence from which a jury reasonably could find that the defendant in fact believed that it was necessary to kill to protect another from death or great bodily harm, the defendant is not entitled to have the jury instructed on either perfect or imperfect defense of another. State v. Perry, 338 N.C. 457, 450 S.E.2d 471, 1994 N.C. LEXIS 713 (1994).

Trial court did not err in declining defendant’s request to instruct the jury on either the affirmative defense of perfect self-defense or imperfect self-defense because defendant’s own depictions of his act of killing the victim as an accident, his decision to obtain a knife due to being motivated by fear, and his intention to use the knife to persuade the victim to leave his premises established it was not appropriate for defendant to receive the benefit of an instruction on self-defense. State v. Harvey, 372 N.C. 304, 828 S.E.2d 481, 2019 N.C. LEXIS 522 (2019).

Requirements for a jury instruction on self-defense did not exist; defendant failed to present evidence that he formed a reasonable belief that it was necessary for him to fatally stab the victim in order for defendant to protect himself from death or great bodily harm because there was no evidence from which a jury could reasonably make such a finding so as to entitle defendant to have the jury to be instructed on self-defense. State v. Harvey, 372 N.C. 304, 828 S.E.2d 481, 2019 N.C. LEXIS 522 (2019).

Defendant’s testimony that he did not recall shooting the victim, combined with his expert’s testimony that defendant acted involuntarily, defeated his self-defense argument, and the trial court did not err in instructing the jury that it could not find defendant guilty if he was not able to exercise voluntary control of his actions. State v. Yarborough, 271 N.C. App. 159, 843 S.E.2d 454, 2020 N.C. App. LEXIS 307 (2020).

Instructions as to Implication from Use of Deadly Weapon. —

Jury instructions in a first degree murder case, that told the jury that if they found that defendant killed victim intentionally with a deadly weapon, it was “implied in law” that the killing was done with malice, constituted prejudicial error, as they essentially eliminated his defense of self-defense from trial. Bush v. Stephenson, 669 F. Supp. 1322, 1986 U.S. Dist. LEXIS 21582 (E.D.N.C. 1986), aff'd, 826 F.2d 1059, 1987 U.S. App. LEXIS 10654 (4th Cir. 1987).

Where jury could have logically deduced from instruction of self-defense that defendant was under a duty to retreat in his own home if the assault upon him was not murderous, defendant deserved a new trial due to error in the charge. State v. Boswell, 24 N.C. App. 94, 210 S.E.2d 129, 1974 N.C. App. LEXIS 1936 (1974).

Questions for Jury. —

The reasonableness of defendant’s belief that self-defense is necessary is to be determined by the jury from the facts and circumstances as they appeared to the accused at the time of the killing. State v. Deck, 285 N.C. 209, 203 S.E.2d 830, 1974 N.C. LEXIS 937 (1974); State v. Davis, 289 N.C. 500, 223 S.E.2d 296, 1976 N.C. LEXIS 1326, vacated in part, 429 U.S. 809, 97 S. Ct. 47, 50 L. Ed. 2d 69 (1976).

The jury is permitted to consider all facts and circumstances, including evidence of self-defense, in determining whether a killing was unlawful. State v. McLaurin, 46 N.C. App. 746, 266 S.E.2d 406, 1980 N.C. App. LEXIS 2919 (1980).

The evidence was not sufficient to warrant an instruction on either perfect or imperfect self-defense where defendant failed to present evidence to support a finding that he in fact formed a belief that it was necessary to kill the victim in order to protect himself from death or great bodily harm, nor was there evidence that if defendant had formed such a belief, the belief was reasonable under the circumstances; defendant’s own statement acknowledged that the victim was unarmed and walking away from defendant when defendant shot him in the back, and thus, defendant was not facing an imminent threat of death or great bodily harm from the victim when defendant fired the fatal shot. State v. Ross, 338 N.C. 280, 449 S.E.2d 556, 1994 N.C. LEXIS 652 (1994).

Defendant was not entitled to instruction on voluntary manslaughter based on imperfect self-defense where the evidence showed defendant shot the unarmed victim in the back as the victim was walking away from defendant. There was no evidence that defendant believed it necessary to kill the victim in order to save himself, and if defendant had presented evidence of such a belief, the belief would not have been reasonable under the circumstances. State v. Exxum, 338 N.C. 297, 449 S.E.2d 554, 1994 N.C. LEXIS 641 (1994).

VII.Evidence

A.In General

Circumstantial Evidence Is Admissible. —

Circumstantial evidence may be used in homicide cases to establish the cause of death and the criminal agency. State v. Lawson, 6 N.C. App. 1, 169 S.E.2d 265, 1969 N.C. App. LEXIS 1129 (1969).

Circumstances immediately connected with the killing by the defendant, the viciousness and depravity of his acts and conduct attending the killing, are evidence of malice and are properly considered. State v. Fleming, 296 N.C. 559, 251 S.E.2d 430, 1979 N.C. LEXIS 1198 (1979).

And May Be Used to Prove Corpus Delicti. —

The death, the felonious cause of death, and the identification of an accused as the person who caused the death can all be shown by circumstances from which these facts might reasonably be inferred. If the evidence is only circumstantial, it should be so strong and cogent that there can be no doubt of the death. State v. Head, 79 N.C. App. 1, 338 S.E.2d 908, 1986 N.C. App. LEXIS 1991 (1986).

But circumstantial evidence must exclude every reasonable hypothesis of innocence. See State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572, 1971 N.C. LEXIS 749 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761, 1972 U.S. LEXIS 1952 (1972).

Applicability of Reasonable Doubt Standard to Circumstantial Evidence. —

The convincing effect of circumstantial evidence on the mind of the jury is measured by the same standard of intensity required of any other evidence: the jury must be convinced beyond a reasonable doubt as to every element of the crime before they find the defendant guilty of it, whether the evidence is wholly circumstantial, only partly so, or entirely direct. State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572, 1971 N.C. LEXIS 749 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761, 1972 U.S. LEXIS 1952 (1972).

Defendant cannot deprive State of right to show all the circumstances of homicide by admitting the bare facts as to identity, the location where the body was found, its general condition and the cause of death. State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572, 1971 N.C. LEXIS 749 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761, 1972 U.S. LEXIS 1952 (1972).

Failure to Produce or Contradict Evidence. —

Although the defendant’s failure to take the stand and deny the charges against him may not be the subject of comment, the defendant’s failure to produce exculpatory evidence or to contradict evidence presented by the State may properly be brought to the jury’s attention by the State in its closing argument. State v. Taylor, 337 N.C. 597, 447 S.E.2d 360, 1994 N.C. LEXIS 496 (1994), cert. denied, 533 S.E.2d 475, 1999 N.C. LEXIS 174 (1999).

Improper Reference to Defendant’s Silence. —

Because the State wrongfully referred to the defendant’s silence in the face of the agent’s accusation of murder, and it allowed the jury to infer guilt and lack of remorse through defendant’s exercise of his constitutional right to silence, the testimony should have been excluded. State v. Quick, 337 N.C. 359, 446 S.E.2d 535, 1994 N.C. LEXIS 406 (1994).

Proper Reference to Defendant’s Silence. —

The defendant’s pre-Miranda right to counsel could be used against him in his murder trial; in other words, his refusal to speak with a youth detective without his lawyer could be used to rebut his earlier voluntary statement that he “didn’t mean to do it.” State v. Salmon, 140 N.C. App. 567, 537 S.E.2d 829, 2000 N.C. App. LEXIS 1242 (2000).

Where a prosecutor, during cross-examination in a second-degree murder trial, questioned defendant on the reason for omitting from a voluntary discussion with a deputy such important facts as that the victim had been drunk, was possibly on cocaine, and had threatened defendant’s life several times prior to the shooting, defendant’s right to remain silent was not violated, because the cross-examination questions did not constitute an impermissible comment upon the invocation of the right, and any error was harmless. State v. Ezzell, 182 N.C. App. 417, 642 S.E.2d 274, 2007 N.C. App. LEXIS 695 (2007).

Instruction as to Circumstantial Evidence. —

While circumstantial evidence is sufficient to justify a conviction when, and only when, the circumstances proved are consistent with the hypothesis of guilt and inconsistent with every other reasonable hypothesis, no set form of words is required to be used in conveying to the jury this rule relating to the degree of proof required for conviction upon circumstantial evidence. State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572, 1971 N.C. LEXIS 749 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761, 1972 U.S. LEXIS 1952 (1972).

In the absence of a request to do so, the failure of the court to instruct the jury regarding circumstantial evidence, or as to what such evidence should show, will not be held for reversible error, if the charge is correct in all other respects as to the burden and measure of proof. State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572, 1971 N.C. LEXIS 749 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761, 1972 U.S. LEXIS 1952 (1972).

Evidence Favorable to Defendant. —

In defendant’s trial on charges of conspiracy to commit first degree murder, attempted first degree murder, and assault with a deadly weapon with intent to kill, the State did not have a duty to locate evidence favorable to defendant and the trial court did not err by denying defendant’s request that the State determine the identities of mental health professionals who were treating a prosecution witness and to provide defendant with that information, or by denying defendant access to mental health records concerning the witness that were made available to the court, after the court reviewed those records in camera and decided they did not contain exculpatory information. State v. Lynn, 157 N.C. App. 217, 578 S.E.2d 628, 2003 N.C. App. LEXIS 533 (2003).

Exculpatory Statements. —

It is well established that when the State introduces into evidence a defendant’s confession containing exculpatory statements which are not contradicted or shown to be false by any other facts or circumstances in evidence, the State is bound by the exculpatory statements. State v. Joyner, 329 N.C. 211, 404 S.E.2d 653, 1991 N.C. LEXIS 418 (1991).

A defendant’s statement was not exculpatory where it in no way indicated that defendant was provoked to shoot or that his action was reflexive. State v. Joyner, 329 N.C. 211, 404 S.E.2d 653, 1991 N.C. LEXIS 418 (1991).

Inculpatory Statements Admitted Where Voluntarily Made. —

Defendant’s motion to suppress post-arrest inculpatory statements was properly denied in his trial for first-degree murder and for robbery with a dangerous weapon where the totality of the circumstances indicated that defendant had voluntarily made the statements, that his waiver of his Miranda rights was voluntary, intelligent, and knowingly made, that he never asked for counsel, that the conditions of the interview were of a non-coercive nature, that he was not on any substance or in need of food or bathroom breaks, and the fact that he had subnormal mental capacity did not, alone, render the statement incompetent; accordingly, there was no violation of his rights under U.S. Const. amend. V or N.C. Const. Art. I, § 23 and suppression of his statements was not required. State v. Mahatha, 157 N.C. App. 183, 578 S.E.2d 617, 2003 N.C. App. LEXIS 539 (2003).

Expert Testimony. —

Expert testimony was properly excluded where it would have directed the jury’s attention away from defendant’s actual conduct and confused it with evidence unrelated to the legality of the arrest or the force the officers used in attempting to apprehend defendant. State v. Harden, 344 N.C. 542, 476 S.E.2d 658, 1996 N.C. LEXIS 500 (1996), cert. denied, 520 U.S. 1147, 117 S. Ct. 1321, 137 L. Ed. 2d 483, 1997 U.S. LEXIS 2017 (1997).

Expert Medical Testimony — Child Abuse. —

Testimony of a physician in a prosecution for the murder of a two-year-old child that the bruises on the child’s chest did not form the typical bruising pattern normally sustained by children in day-to-day activities, and the opinion of another physician that the child was a “battered” child, and his explanation of that term, were well within the bounds of permissible expert medical testimony. State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978).

In a prosecution of defendant for the murder of his 18-month-old step-daughter, the trial court did not err in admitting the testimony of three doctors who opined that decedent’s injury was probably not caused by a fall down a flight of stairs, since all three medical experts were in a better position to have an opinion on the cause of the deceased’s injuries than the jury because of their medical training and their experience in observing and treating skull fractures; the witnesses stated only their opinions as to the possibilities, not the certainties, of the cause of deceased’s injuries; and none of the three experts made any statement as to their opinion of defendant’s guilt or innocence. State v. Brown, 300 N.C. 731, 268 S.E.2d 201, 1980 N.C. LEXIS 1135 (1980).

Same — Bite Marks. —

In a prosecution for first-degree murder, the trial court did not err in allowing an expert witness to testify that bite marks appearing on victim’s body were made by defendant’s teeth, since the expert witness did not rely on untested methods or unproved hypotheses, but applied scientifically established techniques of dentistry and photography to determine whether the bite marks were caused by defendant’s teeth. State v. Temple, 302 N.C. 1, 273 S.E.2d 273, 1981 N.C. LEXIS 1017 (1981).

Same — Cause of Death. —

In a prosecution for murder, the witness’s position as assistant medical examiner and his testimony regarding the number of other cases he had seen indicated sufficient expertise such that the trial court did not err in admitting his opinion of the cause of death. State v. Hamilton, 77 N.C. App. 506, 335 S.E.2d 506, 1985 N.C. App. LEXIS 4170 (1985).

Same — Intent to Kill. —

Admission of psychiatrist’s testimony with respect to defendant’s specific intent to kill was reversible error. However, where the jury found that defendant was guilty of murder in the first degree both under the theory of premeditation and deliberation and under the theory of felony murder, only the jury’s finding that defendant was guilty of murder based on premeditation and deliberation would be set aside. State v. Johnson, 317 N.C. 343, 346 S.E.2d 596, 1986 N.C. LEXIS 2426 (1986) (decided under the law as it obtained prior to the effective date of Chapter 8C).

Testimony of expert for the State that defendant was capable of forming the specific intent to kill was not error. State v. Hedgepeth, 330 N.C. 38, 409 S.E.2d 309, 1991 N.C. LEXIS 663 (1991).

Doctor’s testimony regarding the manner and duration of death by strangulation was competent, admissible, and relevant to show the manner and means by which the killing was carried out, with respect to whether the killing was a premeditated and deliberate murder. State v. Drayton, 323 N.C. 585, 374 S.E.2d 262, 1988 N.C. LEXIS 701 (1988).

Evidence Sufficient to Prove Accessory Before the Fact. —

Evidence held sufficient to convict defendant of being an accessory before the fact to murder committed by his teenage girlfriend by burning her grandparents’ house. State v. Johnson, 340 N.C. 32, 455 S.E.2d 644, 1995 N.C. LEXIS 151 (1995).

Evidence of Killing in Perpetration of Felony. —

In a prosecution for murder in the first degree, testimony that in his voluntary confession defendant stated he entered deceased’s house to rape her was competent to show that killing was done in perpetration or attempt to perpetrate rape, which constitutes murder in first degree without proof of premeditation and deliberation. State v. King, 226 N.C. 241, 37 S.E.2d 684, 1946 N.C. LEXIS 430 (1946).

Evidence tending to show that the prisoner killed the deceased in the perpetration or attempt to perpetrate a robbery is expressly made competent by this section and may be considered by the jury in determining the degree of crime, and whether the accused committed the highest felony or one of lower degree. State v. Westmoreland, 181 N.C. 590, 107 S.E. 438, 1921 N.C. LEXIS 156 (1921).

Proving Premeditation and Deliberation. —

Premeditation and deliberation ordinarily must be proved by circumstantial evidence, such as the absence of provocation by the victim, the conduct of the defendant before and after the killing, ill will or other difficulties between the parties, or evidence that the killing was done in a brutal manner. State v. Artis, 325 N.C. 278, 384 S.E.2d 470, 1989 N.C. LEXIS 482 (1989), vacated, 494 U.S. 1023, 110 S. Ct. 1466, 108 L. Ed. 2d 604, 1990 U.S. LEXIS 1467 (1990) (in light of) State v. Dillard, 90 N.C. App. 318, 368 S.E.2d 442, 1988 N.C. App. LEXIS 529 (1988).

Premeditation and Deliberation Shown. —

Fact that defendant carried a loaded .32-caliber pistol for several days prior to robbery and murder, and threatened two persons with this weapon during two armed robberies just days before he killed victim with it, supported inference of premeditation and deliberation, as did defendant’s conduct in removing money and keys from victim and money from cash register after he shot the victim while he lay bleeding on the floor. State v. Miller, 339 N.C. 663, 455 S.E.2d 137, 1995 N.C. LEXIS 94 (1995).

Evidence of premeditation and deliberation held sufficient to support first-degree murder conviction of 14 year old defendant who killed and robbed stepfather who drank and abused his family. State v. Bunnell, 340 N.C. 74, 455 S.E.2d 426, 1995 N.C. LEXIS 168 (1995).

Evidence held sufficient to permit a reasonable jury to find beyond a reasonable doubt that defendant shot the victim with premeditation and deliberation and was guilty of first-degree murder. State v. Baity, 340 N.C. 65, 455 S.E.2d 621, 1995 N.C. LEXIS 165 (1995).

The fact that one of two defendants drew his pistol, pointed it at victim, a pawnshop clerk and then told him, “Don’t even try it,” prior to shooting him was sufficient evidence of premeditation and deliberation to support a charge of first-degree murder. State v. Davis, 340 N.C. 1, 455 S.E.2d 627, 1995 N.C. LEXIS 152, cert. denied, 516 U.S. 846, 116 S. Ct. 136, 133 L. Ed. 2d 83, 1995 U.S. LEXIS 5843 (1995).

Each element of first-degree murder, including premeditation and deliberation, was positively supported by the evidence where the day before child was killed, defendant grabbed the crying child, swung him out over the water and only when two fishermen spotted defendant did he put him down, remarking that he would finish what he wanted to do later and on the day of the murder, defendant threatened to kill both mother and child while he physically assaulted them. State v. Walls, 342 N.C. 1, 463 S.E.2d 738, 1995 N.C. LEXIS 537 (1995), cert. denied, 517 U.S. 1197, 116 S. Ct. 1694, 134 L. Ed. 2d 794, 1996 U.S. LEXIS 3175 (1996).

The evidence was sufficient to establish that the defendant acted with premeditation and deliberation where there was evidence of ill will between the defendant and the victim resulting from a previous altercation and the evidence showed that the defendant shot the victim six times, three of the wounds to the head, and at least one shot to the victim’s head was fired with the muzzle of the gun pressed against the victim’s skin, inflicted while the victim was lying helpless on the ground, thus showing a conscious decision on the part of the defendant to ensure that his victim was dead. State v. McCray, 342 N.C. 123, 463 S.E.2d 176, 1995 N.C. LEXIS 534 (1995).

Where defendant shot the victim as the victim moved toward his (victim’s) truck, defendant then shot the victim several times while chasing him through the woods and shot him in the head a number of times at close range while he was helpless on the ground, and the victim was discovered face-down on the ground with his arms folded up under his face and upper body, the evidence was sufficient to warrant an instruction on premeditated and deliberate first-degree murder. State v. Gibson, 342 N.C. 142, 463 S.E.2d 193, 1995 N.C. LEXIS 545 (1995).

The State adequately established intent, malice, premeditation and deliberation where the defendant approached the victim several hours after the two had been involved in an altercation, got out of the car, pointed a gun at him, shot at the victim, first missing and then hitting him in the leg, and then continued to approach him with an angry look on his face, only retreating at the urging of his aunt. State v. Peoples, 141 N.C. App. 115, 539 S.E.2d 25, 2000 N.C. App. LEXIS 1290 (2000).

Evidence in attempted first-degree murder conviction was sufficient to show premeditation and deliberation on defendant’s part when defendant refused to be handcuffed by an officer, struck the officer, struggled with the officer, took the officer’s handgun out of its holster after repeated attempts, aimed the handgun at the officer, and shot the officer in the hand. State v. Haynesworth, 146 N.C. App. 523, 553 S.E.2d 103, 2001 N.C. App. LEXIS 990 (2001).

Deliberation and premeditation in the victim’s murder were shown by the fact that defendant took a revolver to a meeting with the victim, indicative of some preparation and intent to do harm to the victim; his statement that “she was going to take my kids” demonstrated ill will or previous difficulties. State v. Williams, 151 N.C. App. 535, 566 S.E.2d 155, 2002 N.C. App. LEXIS 772, cert. denied, 356 N.C. 313, 571 S.E.2d 214, 2002 N.C. LEXIS 999 (2002).

In a murder prosecution, evidence of defendant’s intent to kill was sufficient when it showed: (1) ill-will between defendant and the victim, based on the warrants they had obtained against each other, (2) defendant’s statement to another that he was going to shoot the victim, (3) defendant’s statement to another that he would rather see the victim dead than with another person, and (4) defendant shot the victim twice in the back as she was attempting to flee him. State v. McClary, 157 N.C. App. 70, 577 S.E.2d 690, 2003 N.C. App. LEXIS 378 (2003).

Although the trial court erred in admitting the hearsay statements of the witness, the error was harmless under G.S. 15A-1443(b) given the presence of overwhelming evidence of premeditation required for the conviction of first-degree murder; this evidence included the fact that defendant brought the murder weapon to the residence where the murder occurred, that defendant stabbed or lacerated the victim 51 times, and that the responding police officer saw that defendant’s clothes were heavily blood stained. State v. Champion, 171 N.C. App. 716, 615 S.E.2d 366, 2005 N.C. App. LEXIS 1364 (2005).

Jury could determine deliberation and premeditation beyond a reasonable doubt to support defendant’s convictions for attempted murder and assault with a deadly weapon with intent to kill or inflicting serious injury as: (1) defendant entered the victim’s house without the victim’s permission; (2) a fight resulted when defendant broke the victim’s television, and defendant pulled a knife on the victim; (3) defendant’s girlfriend testified that ill-will had developed between defendant and the victim; (4) defendant left his house with a gun in his truck; and (5) after shooting the victim in the shoulder yelled out, “I got one now and I got one more to go.” State v. Watkins, 181 N.C. App. 502, 640 S.E.2d 409, 2007 N.C. App. LEXIS 360 (2007).

In a case in which a jury convicted defendant of first degree murder of victim A, defendant unsuccessfully argued that the court erred in denying his motion to dismiss the charge of first degree murder on the grounds that the evidence was insufficient to establish every element of the crime. Defendant killed victim A after advancing from his hide-out in a wooded area, going back into the home, and killing victim B; thus, the evidence showed a time lapse for reflection during which defendant decided to go back into the home armed with the victim B’s gun, and forensic evidence showed that victim A was shot twice at close range, which required multiple pulls of the trigger. State v. Stitt, 201 N.C. App. 233, 689 S.E.2d 539, 2009 N.C. App. LEXIS 2252 (2009), writ denied, 377 N.C. 557, 857 S.E.2d 531, 2021 N.C. LEXIS 508 (2021).

Evidence was sufficient to convict defendant of first-degree murder based on premeditation and deliberation, as it established that he shot the victim eight times, that there was no provocation, and that he went to the victim’s home with the express purpose of committing robbery. State v. Rogers, 227 N.C. App. 617, 742 S.E.2d 622, 2013 N.C. App. LEXIS 613 (2013).

Trial court did not err by denying defendant’s motion to dismiss a first degree murder charge based upon the theory of premeditation and deliberation because the State of North Carolina presented sufficient evidence to put the issue of premeditation and deliberation before the jury as the evidence showed that defendant got a ride to where the victim was, approached the car wherein defendant was seated, exchanged words with the driver, pulled out a gun, opened a car door, shot the unarmed victim four time, and fled the scene. State v. Hicks, 241 N.C. App. 345, 772 S.E.2d 486, 2015 N.C. App. LEXIS 449 (2015).

Even assuming arguendo that an instruction on flight was improper, it did not prejudice defendant; evidence that a bullet from defendant’s gun went through the victim’s abdomen and lodged in his underwear, combined with defendant’s own confession to law enforcement, provided overwhelming evidence that defendant committed a murder. In addition, the trial court’s instruction correctly informed the jury that proof of flight was not sufficient by itself to establish guilt and would not be considered as tending to show premeditation and deliberation. State v. Taylor, 362 N.C. 514, 669 S.E.2d 239, 2008 N.C. LEXIS 986 (2008), cert. denied, 558 U.S. 851, 130 S. Ct. 129, 175 L. Ed. 2d 84, 2009 U.S. LEXIS 5323 (2009).

Evidence of Prior Crime as Indicative of Intent. —

Evidence of the defendant’s participation in a prior armed robbery is admissible for the purpose of showing intent in a prosecution for murder committed during the perpetration or attempted perpetration of a robbery. State v. May, 292 N.C. 644, 235 S.E.2d 178, 1977 N.C. LEXIS 1167, cert. denied, 434 U.S. 928, 98 S. Ct. 414, 54 L. Ed. 2d 288, 1977 U.S. LEXIS 3839 (1977).

Evidence of Prior Abuse of Victim. —

Evidence that, on various occasions during approximately three and one-half years prior to her death, defendant had intentionally inflicted personal injuries upon his wife was admissible as bearing on intent, malice, motive, premeditation and deliberation on the part of the prisoner. State v. Moore, 275 N.C. 198, 166 S.E.2d 652, 1969 N.C. LEXIS 375 (1969).

In a prosecution for second-degree murder, where the victim was a five-year-old child who died as a result of injuries to her head which could have been caused by a beating on one or several occasions by the defendant, previous acts of physical abuse were competent to show defendant’s predisposition to commit the violent act complained of in the indictment. Moreover, the evidence of child abuse was competent to show the state of mind necessary to establish malice, an essential element of second-degree murder. State v. Vega, 40 N.C. App. 326, 253 S.E.2d 94, 1979 N.C. App. LEXIS 2267, cert. denied, 297 N.C. 457, 256 S.E.2d 809, 1979 N.C. LEXIS 1457 (1979), cert. denied, 444 U.S. 968, 100 S. Ct. 459, 62 L. Ed. 2d 382, 1979 U.S. LEXIS 3869 (1979).

Witness’ testimony that defendant told her he had exposed himself and masturbated in the presence of her three-year-old daughter was admissible as evidence of the defendant’s felonious intent in kidnapping 10-year-old murder victim, and was sufficient evidence to support the defendant’s conviction for first-degree murder under the felony murder theory. State v. Coffey, 326 N.C. 268, 389 S.E.2d 48, 1990 N.C. LEXIS 119 (1990), writ denied, 421 S.E.2d 360, 1992 N.C. LEXIS 569 (1992).

North Carolina, to prove the disputed issue of defendant’s intent to kill after defendant’s forensic psychologist testified that defendant was unable to form the specific intent to kill, elicited testimony on defendant’s prior misconduct toward his wife; thus, the psychologist’s testimony regarding the statements of defendant’s prior bad acts was properly admitted under G.S. 8C-1-404(b). State v. Nguyen, 178 N.C. App. 447, 632 S.E.2d 197, 2006 N.C. App. LEXIS 1571 (2006).

Evidence of Prior Similar Act. —

Where defendant was on trial for murdering his 21/2 year old niece, evidence that 6 months prior defendant became angry with girlfriend’s 4 year old son and shook him and threw him into a chair which then slid and hit the wall was relevant to establish defendant’s motive and intent in shaking niece and to show absence of mistake on defendant’s part. State v. Pierce, 346 N.C. 471, 488 S.E.2d 576, 1997 N.C. LEXIS 477 (1997).

Evidence of the disappearance of defendant’s co-worker was properly admitted in defendant’s trial for murdering his girlfriend; both women were residents of the same area, disappeared within nine months of each other, had legal, financial, and substance abuse problems, and had sustained relationships with defendant. The co-worker’s disappearance and the police investigation that followed led to the discovery of the girlfriend’s body, such that the disappearances and investigations of both were inextricably intertwined. N.C. v. Bradley, 279 N.C. App. 389, 864 S.E.2d 850, 2021- NCCOA-495, 2021 N.C. App. LEXIS 513 (2021).

Trial court did not err in admitting evidence of the disappearance of defendant’s co-worker, which led to the discovery of defendant’s girlfriend’s body; the investigations were intertwined and the evidence demonstrated how defendant targeted both of them pursuant to a common plan. N.C. v. Bradley, 279 N.C. App. 389, 864 S.E.2d 850, 2021- NCCOA-495, 2021 N.C. App. LEXIS 513 (2021).

Evidence of threats is admissible and may be offered as tending to show premeditation and deliberation, and previous express malice, which are necessary to convict of murder in the first degree. State v. Faust, 254 N.C. 101, 118 S.E.2d 769, 1961 N.C. LEXIS 412, cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49, 1961 U.S. LEXIS 646 (1961).

Evidence of threats against the victim are admissible in evidence to show premeditation and deliberation. State v. Reams, 277 N.C. 391, 178 S.E.2d 65, 1970 N.C. LEXIS 623 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74, 1971 U.S. LEXIS 1117 (1971), overruled, State v. Worsley, 336 N.C. 268, 443 S.E.2d 68, 1994 N.C. LEXIS 233 (1994).

In homicide cases, threats by the accused have always been freely admitted either to identify him as the killer or to disprove accident or justification, or to show premeditation and deliberation. Remoteness in time of the threat does not render the evidence incompetent, but goes only to its weight. State v. Potter, 295 N.C. 126, 244 S.E.2d 397, 1978 N.C. LEXIS 982 (1978); State v. Sanders, 295 N.C. 361, 245 S.E.2d 674, 1978 N.C. LEXIS 888 (1978).

General threats to kill not shown to have any reference to deceased are not admissible in evidence, but a threat to kill or injure someone not definitely designated is admissible in evidence where other facts adduced give individuation to it. State v. Faust, 254 N.C. 101, 118 S.E.2d 769, 1961 N.C. LEXIS 412, cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49, 1961 U.S. LEXIS 646 (1961).

Uncommunicated Threats. —

Generally speaking, uncommunicated threats are not admissible in homicide cases. But there are exceptions to the rule which must be considered in light of the facts of the particular case. Such exceptions occur where the evidence has an explanatory bearing on the plea of self-defense. State v. Hurdle, 5 N.C. App. 610, 169 S.E.2d 17, 1969 N.C. App. LEXIS 1406 (1969).

In trials for homicide uncommunicated threats are admissible where they tend to throw light on the occurrence and aid the jury to a correct interpretation of the same, and there is testimony ultra sufficient to carry the case to the jury tending to show that the killing may have been done from a principle of self-preservation. State v. Hurdle, 5 N.C. App. 610, 169 S.E.2d 17, 1969 N.C. App. LEXIS 1406 (1969).

Defendant’s conviction and sentence on a charge of first-degree murder pursuant to G.S. 14-17 was upheld; the trial court properly excluded the victim’s uncommunicated threats to defendant into evidence, because defendant failed to put on evidence of self-defense as was required to admit such evidence pursuant to G.S. 8C-1, N.C. R. Evid. 803(3), and defendant did not suffer any prejudice pursuant to G.S. 15A-1443(a) because defendant testified to substantially the same evidence that was contained in the uncommunicated threat. State v. Messick, 159 N.C. App. 232, 585 S.E.2d 392, 2003 N.C. App. LEXIS 1493 (2003).

Evidence bearing upon the atrocity of the offense and the callous disregard exhibited by the defendant toward the victim is especially relevant and material when the punishment to be imposed is to be fixed by the jury in its discretion. State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572, 1971 N.C. LEXIS 749 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761, 1972 U.S. LEXIS 1952 (1972).

Brutal or Vicious Circumstances Permitting Inference of Premeditation. —

It was not error to instruct jurors that they could infer premeditation and deliberation from the “brutal or vicious circumstances of the killing” and from defendant’s use of “grossly excessive force” where there was evidence of defendant’s use of grossly excessive force and he fired a semi-automatic rifle, fully loaded with 16 rounds, seven times at the victim, hitting his target twice. This is enough to show grossly excessive force. State v. Terry, 329 N.C. 191, 404 S.E.2d 658, 1991 N.C. LEXIS 401 (1991).

Evidence of Private Prosecution. —

In first-degree murder prosecution, the court erred in excluding evidence that wife of deceased had employed private prosecution in the case. State v. White, 286 N.C. 395, 211 S.E.2d 445, 1975 N.C. LEXIS 1192 (1975).

Use of Admissions Regarding Second-Degree Murder to Prove First-Degree Murder. —

Where defendant made affirmative admissions of the existence of malice and unlawfulness by admitting commission of two second-degree murders, there could not possibly be any constitutional transgressions or prejudice in the remarks of either the prosecutor or the trial court concerning the presumption of the existence of those very same elements in the charges of first-degree murder. State v. Pinch, 306 N.C. 1, 292 S.E.2d 203, 1982 N.C. LEXIS 1386 (1982), cert. denied, 459 U.S. 1056, 103 S. Ct. 474, 74 L. Ed. 2d 622 (1982), writ denied, 366 S.E.2d 868, 1988 N.C. LEXIS 183 (1988), overruled, State v. Benson, 323 N.C. 318, 372 S.E.2d 517, 1988 N.C. LEXIS 612 (1988), overruled, State v. Robinson, 336 N.C. 78, 443 S.E.2d 306, 1994 N.C. LEXIS 229 (1994), overruled, State v. Rouse, 339 N.C. 59, 451 S.E.2d 543, 1994 N.C. LEXIS 719 (1994); State v. Robinson, 336 N.C. 78, 443 S.E.2d 306, 1994 N.C. LEXIS 229 (1994), cert. denied, 513 U.S. 1089, 115 S. Ct. 750, 130 L. Ed. 2d 650, 1995 U.S. LEXIS 276 (1995); State v. Rouse, 339 N.C. 59, 451 S.E.2d 543, 1994 N.C. LEXIS 719 (1994), cert. denied, 516 U.S. 832, 116 S. Ct. 107, 133 L. Ed. 2d 60, 1995 U.S. LEXIS 5654 (1995), overruled in part, State v. Hurst, 360 N.C. 181, 624 S.E.2d 309, 2006 N.C. LEXIS 7 (2006).

Evidence of Malice from Defendant’s Statements. —

Statements by defendant that he believed the law in Anson County did not prevent the killing of blacks clearly tended to prove malice. State v. Hamilton, 77 N.C. App. 506, 335 S.E.2d 506, 1985 N.C. App. LEXIS 4170 (1985).

Conviction Based Largely on Defendant’s Own Statements. —

Substantial evidence of first-degree murder was presented to sustain defendant’s conviction where the forensic pathologist testified that the victim could only have survived a matter of minutes after the infliction of the head wounds and where the defendant stated that he did not see anyone else in the store on the morning of the murder, that the victim was still alive when he saw him lying behind the counter, and that he picked up the stick containing the victim’s hair, blood and tissue; his own statements placed him as the person who had access to the victim, the victim’s blood, and other physical evidence, making it unnecessary for the police to match fingerprints taken in the store to defendant. State v. Barnett, 141 N.C. App. 378, 540 S.E.2d 423, 2000 N.C. App. LEXIS 1397 (2000), aff'd, 354 N.C. 350, 554 S.E.2d 644, 2001 N.C. LEXIS 1079 (2001).

Letters Showing Financial Motive to Kill Properly Admitted. —

Letters were relevant as they indicated that defendant faced financial hardships, and this, coupled with evidence that the victim had threatened to remove defendant from the home and continue to request child support, indicated that the letters made the existence of a financial motive to murder the victim more probable; the court also limited the danger of unfair prejudice by prohibiting the State from publishing to the jury letters which indicated a criminal action against defendant. State v. Holmes, 263 N.C. App. 289, 822 S.E.2d 708, 2018 N.C. App. LEXIS 1260 (2018).

Causal Connection Between Assault and Death. —

Nonexpert testimony, even without an opinion as to the cause of death, can establish a causal connection between an assault and death sufficient to take the State’s case to the jury. State v. Luther, 21 N.C. App. 13, 203 S.E.2d 343, 1974 N.C. App. LEXIS 1698, aff'd, 285 N.C. 570, 206 S.E.2d 238, 1974 N.C. LEXIS 1012 (1974).

Establishing Theory of Acting in Concert. —

Where victim was murdered in her own home, evidence of an unidentified latent fingerprint in addition to those of defendant supported the jury instruction concerning the theory of acting in concert. State v. Smart, 99 N.C. App. 730, 394 S.E.2d 475, 1990 N.C. App. LEXIS 829 (1990).

Evidence of Conspiracy. —

Motion to dismiss was properly denied where the evidence showed that defendant drove through an apartment complex in a borrowed car with victim’s brother, exited the vehicle in a certain area and returned to the vehicle after gunshots, and the brother fabricated a story to police to avoid identification, there was sufficient evidence to support a finding of conspiracy to commit murder. State v. Brewton, 173 N.C. App. 323, 618 S.E.2d 850, 2005 N.C. App. LEXIS 2027 (2005), writ denied, 636 S.E.2d 812, 2006 N.C. LEXIS 1141 (2006).

Sufficiency of Evidence to Deny Motion to Dismiss. —

Evidence tending to show defendant was the perpetrator of the homicide was sufficient to justify the trial court’s denial of defendant’s motion to dismiss. State v. Demery, 113 N.C. App. 58, 437 S.E.2d 704, 1993 N.C. App. LEXIS 1311 (1993).

In an action in which defendants appealed from a judgment of the Wayne County Court which convicted defendants of first-degree murder, there was sufficient evidence to persuade a rational trier of fact of each essential element beyond a reasonable doubt regarding the first defendant; the introduction of evidence showing that defendant said “I’m going to kill this expletive,” and that he had the gun when he pursued the victim’s car, provided sufficient evidence to support a guilty verdict. State v. Sloan, 180 N.C. App. 527, 638 S.E.2d 36, 2006 N.C. App. LEXIS 2517 (2006), aff'd, 361 N.C. 584, 650 S.E.2d 594, 2007 N.C. LEXIS 1011 (2007).

Defendant’s motion to dismiss was properly denied as there was ample evidence that defendant shot the victim since: (1) defendant and the victim fought with each other before the shooting and defendant pulled a knife on the victim; (2) after the fight, defendant sat in defendant’s truck and pointed a gun toward the victim’s house; (3) the victim and the victim’s brother identified defendant’s voice as the voice they heard when the shooting occurred; (4) defendant’s girlfriend saw defendant leave in defendant’s truck shortly before the shooting; and (5) a .22 rifle and bullets were found in defendant’s shop. State v. Watkins, 181 N.C. App. 502, 640 S.E.2d 409, 2007 N.C. App. LEXIS 360 (2007).

Testimony that defendant and the victim wrestled for a gun, which the witness was told was a nine-millimeter, in the victim’s bedroom, that defendant was using a smaller gun to hit the victim, and the witness did not see who fired the gunshot that led to the victim’s death, was sufficient to support the denial of defendant’s motion to dismiss because it was sufficient for the jury to reasonably infer that defendant shot the victim, either with defendant’s own gun or the victim’s gun, and thus to allow the jury to conclude that defendant acted to cause the victim’s death. State v. Williams, 185 N.C. App. 318, 648 S.E.2d 896, 2007 N.C. App. LEXIS 1824 (2007).

As the State presented evidence that defendant retrieved a gun from his vehicle and intentionally fired the gun at defendant, killing him, the State presented sufficient evidence for the jury to infer malice on the part of defendant; thus, the trial court properly denied the motion to dismiss. State v. Banks, 191 N.C. App. 743, 664 S.E.2d 355, 2008 N.C. App. LEXIS 1484 (2008).

Evidence that the victim was with defendant less than 10 minutes before the victim was found; defendant was driving the victim’s car, which had blood in it; defendant bought bleach shortly after the body was found; the victim’s broken cell phones were found behind the store where defendant bought the bleach; and defendant had money with the victim’s blood on defendant was sufficient to support the denial of defendant’s motion to dismiss the first-degree murder charge. State v. Dawkins, 196 N.C. App. 719, 675 S.E.2d 402, 2009 N.C. App. LEXIS 513 (2009).

Evidence was sufficient to support defendant’s conviction of first-degree murder because it showed that: (1) after defendant and his accomplice beat and kicked the victim, he was carried into a bedroom, where he was tied with his hands and feet behind his back; (2) his neck was tied, pulled close to the legs area, and the feet and legs pulled up toward the neck area in the back area, and two pieces of tissue were inserted into his mouth; and (3) due to the severe arching of his back, the victim suffered a fracture in his thoracic spine and ultimately died from a combination of suffocation and strangulation. State v. Bonilla, 209 N.C. App. 576, 706 S.E.2d 288, 2011 N.C. App. LEXIS 213 (2011).

Evidence that defendant, after being kicked in the face in a fight inside the nightclub, became angry, retrieved a 9 mm semi-automatic pistol from under the driver’s seat of his car, loaded the gun, and fired seven times toward the big crowd, resulting in the death of a police officer, was sufficient to support the trial court’s submission to the jury of a second-degree murder charge. Accordingly, the trial court did not err in denying defendant’s motion to dismiss the second-degree murder charge for insufficient evidence. State v. Carter, 212 N.C. App. 516, 711 S.E.2d 515, 2011 N.C. App. LEXIS 1175 (2011).

Substantial evidence supported a trial court’s denial of defendant’s motion to dismiss a first-degree murder charge because defendant was stopped while driving the victim’s truck, shoe prints found on the store floor under the victim, as well as, on the victim’s clothes were consistent with the soles of shoes found in defendant’s possession when he was arrested approximately 24 hours after the murder, fingerprints matching defendant’s were found in the store bathroom, and the victim’s DNA was found on the cash and shoes defendant had in his possession at the time he was arrested. State v. Kidwell, 218 N.C. App. 134, 720 S.E.2d 795, 2012 N.C. App. LEXIS 69 (2012).

There was substantial evidence to support the denial of defendant’s motion to dismiss a first-degree murder charge based on a claim that defendant had committed a premeditated and deliberate act in shooting a victim where the evidence did not demonstrate any provocation on the part of the victim, and the victim’s girlfriend testified that defendant simply walked up to the victim, shot him, and then ran. State v. Avent, 222 N.C. App. 147, 729 S.E.2d 708, 2012 N.C. App. LEXIS 948, writ denied, 366 N.C. 397, 736 S.E.2d 176, 2012 N.C. LEXIS 1169 (2012).

Denial of defendant’s motion to dismiss the charge of first-degree murder arising from defendant’s act of shooting his wife, which led to the later death of his child was proper because the evidence here established that the child was born alive after the shooting and lived for one month before dying; while the record supported defendant’s contention that the bullet did not strike the fetus, his insistence that the emergency cesarean section was performed solely for the safety of the mother was clearly contradicted by the record, and the record supported the conclusion that defendant’s shooting of the mother started a foreseeable chain of events that led to the child’s death. The State also provided sufficient evidence that defendant acted with premeditation and deliberation. State v. Broom, 225 N.C. App. 137, 736 S.E.2d 802, 2013 N.C. App. LEXIS 69 (2013).

Denial of defendant’s motion to dismiss the charge of attempted first-degree murder arising from defendant’s act of shooting his wife was proper because the State presented evidence that defendant removed the wife’s cell phone from her reach, left the room, returned with a .45 caliber pistol, and shot her in the abdomen with a hollow point bullet; defendant then denied the wife medical assistance for approximately twelve hours. State v. Broom, 225 N.C. App. 137, 736 S.E.2d 802, 2013 N.C. App. LEXIS 69 (2013).

To convict a defendant of first-degree murder, the State presented expert medical testimony by the forensic pathologist, and while he was unable to clinically determine a cause of death, the State presented substantial evidence from which the jury could determine that the cause was the natural result of a criminal act, given the presence of petechiae and bruising, plus the pathologist ruled out suicide, drowning, and electrocution, and defendant’s motion to dismiss was properly denied. State v. Holmes, 263 N.C. App. 289, 822 S.E.2d 708, 2018 N.C. App. LEXIS 1260 (2018).

There was sufficient evidence from which a reasonable inference of defendant’s guilt could be drawn, and thus the trial court did not err in denying defendant’s motion to dismiss; his financial hardships, coupled with the victim’s threat to end their relationship, were sufficient to show motive, plus he was in the home between the time that the victim returned home the night before and when her body was found the next day, and he had the means of suffocating the victim with the feather pillow found in his room. State v. Holmes, 263 N.C. App. 289, 822 S.E.2d 708, 2018 N.C. App. LEXIS 1260 (2018).

Evidence was sufficient to support defendant’s conviction of felony murder because a reasonable juror could have concluded that defendant had motive to kill the victim based on the hostility that existed between them, defendant’s opportunity to commit the crimes was established by physical evidence at the crime scene and testimony of those who interacted with defendant near the scene shortly after the victim’s death, and it was undisputed that, regardless of who fired a weapon into the residence, it resulted in the victim’s death. State v. Gray, 261 N.C. App. 499, 820 S.E.2d 364, 2018 N.C. App. LEXIS 927 (2018).

Trial court did not err by denying defendant’s motion to dismiss based on insufficient evidence because the deputy testified that she saw defendant point a gun at her face and that she heard a gunshot after ducking behind her dashboard, and the jury could have reasonably inferred that defendant, in a conspiracy with another suspect, attempted to kill the deputy by firing a gun at her. Because intentional failure was not necessary to a charge of conspiracy to commit attempted murder, the State was not required to show that defendant intended to fail in his attempt to take the deputy’s life. State v. Lyons, 268 N.C. App. 603, 836 S.E.2d 917, 2019 N.C. App. LEXIS 974 (2019).

State’s evidence was sufficient to present the charge of first-degree murder to the jury, as the evidence showed that the victim was killed as the proximate cause of an assault with a deadly weapon, by an accomplice and defendant lying in wait to ambush the victim as he drove through the intersection. State v. Baldwin, 276 N.C. App. 368, 856 S.E.2d 897, 2021- NCCOA-97, 2021 N.C. App. LEXIS 124 (2021).

Sufficient Circumstantial Evidence. —

The State presented sufficient evidence to the jury that the defendant committed the subject crime where the evidence showed that the victim knew his assailant; that the defendant had borrowed money from the victim before; that the defendant’s behavior was suspicious to several witnesses, including his mother; that the defendant spent all his paycheck on beer and crack cocaine on the night of the murder; that, after the time of the murder, defendant returned to his friend’s house with more cocaine than he possessed before leaving and also with his shirt covered with blood; that defendant related three different stories as to how his shirt got bloody; and that a shoeprint found on the scene could be a match to the defendant’s shoe. State v. Brooks, 136 N.C. App. 124, 523 S.E.2d 704, 1999 N.C. App. LEXIS 1309 (1999).

Admissible Evidence. —

All statements made by defendant were fully authorized by the defendant and did not constitute a breach of the attorney-client privilege or any other right of the defendant and it was not error for the trial court to allow evidence of the defendant’s statements to be admitted. State v. McIntosh, 336 N.C. 517, 444 S.E.2d 438, 1994 N.C. LEXIS 285 (1994).

In defendant’s trial on charges of first degree murder, first degree burglary, second degree kidnapping, and robbery with a dangerous weapon, the trial court properly admitted the videotaped statement that defendant’s wife gave to police, pursuant to G.S. 8C-1, N.C. R. Evid. 804(b)(5), after defendant’s wife refused to testify for the State at defendant’s trial, properly admitted letters one of defendant’s co-conspirators wrote to a girlfriend urging the girlfriend to lie about the girlfriend’s involvement in the co-conspirator’s attempt to conceal evidence of the crime, pursuant to G.S. 8C-1, N.C. R. Evid. 804(b)(3), (b)(5), and properly admitted evidence of similar crimes defendant committed shortly after the murder, pursuant to G.S. 8C-1, N.C. R. Evid. 404(b). State v. Carter, 156 N.C. App. 446, 577 S.E.2d 640, 2003 N.C. App. LEXIS 178 (2003), cert. denied, 358 N.C. 547, 2004 N.C. LEXIS 1107 (2004), cert. denied, 543 U.S. 1058, 125 S. Ct. 868, 160 L. Ed. 2d 784, 2005 U.S. LEXIS 565 (2005).

Evidence as to defendant’s prior convictions for driving while impaired and driving while license revoked was properly admitted, under G.S. 8C-1, N.C. R. Evid. 404(b), as the evidence was relevant to show malice to support defendant’s charge for second degree murder following an auto accident in which defendant was driving while impaired. Further, there was no plain error in the trial court admitting evidence of defendant’s empty prescription pill bottle, testimony by an officer identifying the pills from the label, and testimony by a pharmacist about the interaction between the pills and alcohol, as the evidence was relevant to the charges against defendant. State v. Edwards, 170 N.C. App. 381, 612 S.E.2d 394, 2005 N.C. App. LEXIS 992 (2005).

Defendant’s first degree murder conviction for stabbing his wife to death was affirmed because defendant’s written waiver of his Miranda rights and written confession were made understandingly, knowingly, and voluntarily through a police officer that served as defendant’s interpreter. State v. Nguyen, 178 N.C. App. 447, 632 S.E.2d 197, 2006 N.C. App. LEXIS 1571 (2006).

Evidence permitted the inference that defendant was the aggressor at the time he shot the victim, where, although the evidence showed that the victim initially went to defendant’s home and began to argue with him, the evidence also showed that immediately before the victim was shot she was about to leave. State v. Cannon, 341 N.C. 79, 459 S.E.2d 238, 1995 N.C. LEXIS 386 (1995).

Evidence of Prior Violent Behavior by Victim When an Accident Defense Used. —

In Defendant’s trial for second degree murder, trial court properly excluded evidence that defendant’s wife had shot her former husband, as defendant relied on a defense of accident, and the wife’s alleged violent character had no bearing on whether a rifle fired accidentally. State v. Crawford, 163 N.C. App. 122, 592 S.E.2d 719, 2004 N.C. App. LEXIS 307 (2004).

Evidence Held Sufficient to Support Conviction. —

Evidence that defendant, a gang member, (1) on one night met with other gang members to participate in an initiation of gang members, (2) participated in obtaining bullets to support gang missions, (3) asked to be allowed to shoot a victim that was abducted by other gang members, and (4) grumbled when he was not chosen to shoot and kill the victim, was sufficient to show that defendant joined with one or more persons to kidnap, rob, assault with a deadly weapon, and attempt to murder the victim, and was constructively present when the crimes were carried out. State v. Tirado, 358 N.C. 551, 599 S.E.2d 515, 2004 N.C. LEXIS 911 (2004), cert. denied, 544 U.S. 909, 125 S. Ct. 1600, 161 L. Ed. 2d 285, 2005 U.S. LEXIS 2312 (2005).

Evidence, including a history of violence and hostility between the parties, testimony from defendant’s girlfriend that she thought defendant was going to shoot the victim, and defendant’s DNA on a beer can, was sufficient to support defendant’s conviction for first-degree murder. State v. Hocutt, 177 N.C. App. 341, 628 S.E.2d 832, 2006 N.C. App. LEXIS 966 (2006).

Sufficient evidence supported a murder conviction where testimony revealed that defendant attacked the victim after the victim had been knocked to the ground by another, that defendant then beat the victim with a rubber mallet, that defendant then stole the shoes off the victim’s feet and fled the scene, and that during his flight, defendant stated to others “I killed him, I killed him.” State v. Yarrell, 172 N.C. App. 135, 616 S.E.2d 258, 2005 N.C. App. LEXIS 1428 (2005).

There was sufficient evidence of malice to support defendant’s second-degree murder conviction as: (1) there was evidence that defendant had consumed 9 to 12 beers in a two-hour timeframe; (2) defendant’s blood alcohol content was well-above the threshold for driving while impaired; (3) defendant got into a truck, ran over a sign and continued driving; and (4) defendant eventually ran off the road and crashed into the victims’ truck. State v. Davis, 197 N.C. App. 738, 678 S.E.2d 385, 2009 N.C. App. LEXIS 1080 (2009), aff'd in part and rev'd in part, 364 N.C. 297, 698 S.E.2d 65, 2010 N.C. LEXIS 585 (2010).

Sufficient evidence supported defendant’s attempted first-degree murder conviction, given that defendant told the victim he would kill her if she did not follow his commands, he struck her over the head twice with his gun, he stated on the phone that he had a hostage, and when the victim tried to escape by shutting the front door, defendant shot the door near the doorknob four to six times before kicking the door and yelling. State v. Yarborough, 271 N.C. App. 159, 843 S.E.2d 454, 2020 N.C. App. LEXIS 307 (2020).

Error in admission of victim’s statements without cross-examination was harmless. —

Defendant’s conviction for first-degree murder was upheld on appeal, despite that the trial court erring by admitting the statements of two unavailable robbery victims with regard to their statements to police after the crime, which identified and implicated defendant and three others, without affording defendant the right to confrontation, because the evidence of defendant’s guilt was overwhelming, which rendered the trial court’s error harmless. State v. Allen, 171 N.C. App. 71, 614 S.E.2d 361, 2005 N.C. App. LEXIS 1186 (2005).

B.Physical Evidence

Real Evidence Must Be Properly Identified. —

Any evidence which is relevant to the trial of a criminal action is admissible but when real evidence (i.e. the object itself) is offered into evidence, it must be properly identified and offered. State v. Winford, 279 N.C. 58, 181 S.E.2d 423, 1971 N.C. LEXIS 751 (1971).

Analysis by Expert Witness. —

In defendant’s trial on a charge of first degree murder, the trial court erred by denying defendant’s motion for a continuance so she could find an expert to analyze the State’s expert’s conclusion that there was blood splatter on defendant’s clothes which suggested that defendant was present when a victim was struck; the appellate court ordered a new trial because the State did not carry its burden of showing that the trial court’s ruling was harmless beyond a reasonable doubt. State v. Barlowe, 157 N.C. App. 249, 578 S.E.2d 660, 2003 N.C. App. LEXIS 536 (2003).

When Clothing Is Admissible. —

In cases of homicide or other crimes against the person, clothing worn by the defendant or by the victim is admissible if its appearance throws any light on the circumstances of the crime. State v. Norwood, 289 N.C. 424, 222 S.E.2d 253, 1976 N.C. LEXIS 1295 (1976).

Clothing of Victim. —

The admission into evidence of the articles of clothing found upon a murder victim’s body was not error, where the location of the bullet holes in her dress and the presence thereon of stains, identified by an expert witness as powder burns, were material and tended to show that when the shots were fired the pistol was held close to the victim’s body. State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572, 1971 N.C. LEXIS 749 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761, 1972 U.S. LEXIS 1952 (1972).

In a prosecution for first-degree murder, the clothing of deceased is admissible if its appearance throws any light on the circumstances of the crime. State v. Williams, 289 N.C. 439, 222 S.E.2d 242, 1976 N.C. LEXIS 1297, vacated in part, 429 U.S. 809, 97 S. Ct. 45, 50 L. Ed. 2d 69, 1976 U.S. LEXIS 2345 (1976).

Fingerprints of Codefendant. —

In the prosecution of two defendants for armed robbery and murder, there was no merit to one defendant’s contention that the trial court erred in admitting evidence of fingerprints of a codefendant found on the murder weapon as well as cards containing his fingerprints which were never linked to the murder weapon, since the evidence of the fingerprints was relevant because the State proceeded upon a theory of acting in concert, and, in criminal cases, every circumstance that is calculated to throw any light upon the supposed crime is admissible. State v. Smith, 301 N.C. 695, 272 S.E.2d 852, 1981 N.C. LEXIS 1014 (1981).

Fruits of Plain View Seizure. —

In a prosecution of first-degree murder, where a State trooper had stopped defendants’ car for reckless driving and had subsequently observed the butt of a revolver protruding from under the center armrest, the revolver was properly admissible in evidence as the fruit of a lawful warrantless “plain view” seizure under circumstances requiring no search. State v. Smith, 289 N.C. 143, 221 S.E.2d 247, 1976 N.C. LEXIS 1238 (1976).

Nontestimonial Identification. —

In a prosecution for first-degree murder, the trial court’s denial of defendant’s motion to suppress nontestimonial identification evidence was without error where, pursuant to an order of the trial court, fingernail scrapings, samples of defendant’s head and pubic hair, saliva samples, blood samples, and photographs of any wounds on defendant’s body were taken; the order stated defendant’s right to counsel; the State stipulated that nothing defendant said during the procedure would be offered into evidence; and defendant was fully advised of his constitutional right to the presence of counsel; and the State was not in violation of any provision of Chapter 15A, Article 14, by not procuring an express waiver from defendant, as the statute does not require an express waiver of the right to have counsel present at a nontestimonial identification procedure. State v. Temple, 302 N.C. 1, 273 S.E.2d 273, 1981 N.C. LEXIS 1017 (1981).

Photographs — Scene of the Crime. —

In a prosecution under this section, where photographs are identified as accurate representations of the scene of the crime by the witness, the photographs are competent in evidence for the purpose of enabling the witness to explain his testimony, and a general objection to the admission of the photographs in evidence cannot be sustained. State v. Casper, 256 N.C. 99, 122 S.E.2d 805, 1961 N.C. LEXIS 699 (1961), cert. denied, 376 U.S. 927, 84 S. Ct. 691, 11 L. Ed. 2d 622, 1964 U.S. LEXIS 1942 (1964).

Same — Body of Victim. —

There was no error in the admission of the two photographs of the body of a murder victim, the court instructing the jury that they were to be considered solely for the purpose of illustrating the testimony of the witness. State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572, 1971 N.C. LEXIS 749 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761, 1972 U.S. LEXIS 1952 (1972).

In a prosecution for first-degree murder, a photograph is admissible for the purpose of illustrating the testimony of the doctor who examined the deceased. State v. Williams, 289 N.C. 439, 222 S.E.2d 242, 1976 N.C. LEXIS 1297, vacated in part, 429 U.S. 809, 97 S. Ct. 45, 50 L. Ed. 2d 69, 1976 U.S. LEXIS 2345 (1976).

Photographs and videotape used to illustrate testimony as to the location and condition of victim’s body, where each photograph showed something different, none was especially inflammatory, and the total amount of photographic evidence was not excessive, did not prejudice defendant, in light of the overwhelming evidence of defendant’s guilt, and in light of his receiving a sentence of life imprisonment, the minimum sentence for first-degree murder. State v. Murphy, 321 N.C. 738, 365 S.E.2d 615, 1988 N.C. LEXIS 231 (1988).

Properly authenticated photographs of a homicide victim may be introduced into evidence even if they are gory, gruesome, horrible or revolting, so long as they are used by a witness to illustrate his testimony and so long as an excessive number of photographs are not used solely to arouse the passions of the jury. State v. Murphy, 321 N.C. 738, 365 S.E.2d 615, 1988 N.C. LEXIS 231 (1988).

Same — Body in Casket. —

The trial court erred in a first-degree murder case in allowing the jury to be shown certain photographs of the victim’s body lying in a casket, but such error was harmless beyond a reasonable doubt in view of the overwhelming evidence of defendant’s guilt. State v. Temple, 302 N.C. 1, 273 S.E.2d 273, 1981 N.C. LEXIS 1017 (1981).

Same — Effect of Defendant’s Admissions. —

Photographs of the victim’s body and articles of clothing found upon it were competent notwithstanding the admission by the defendant, through his counsel, in open court, that the body was that of the victim, that it was discovered in a wooded area, partially hidden under boards and an old quilt and in a state of decomposition, and that the cause of death was five gunshot wounds in the abdomen. Notwithstanding these admissions, the circumstances with reference to the shooting of the deceased and the disposition of her body were material upon the question of the degree of the homicide and the decision as to the punishment to be inflicted, if the jury should find the defendant guilty of murder in the first degree. State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572, 1971 N.C. LEXIS 749 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761, 1972 U.S. LEXIS 1952 (1972).

In a prosecution for first-degree murder, photographs of deceased and the clothing of deceased are admissible despite defendant’s contention that since he did not controvert the killing, the photographs and clothing were prejudicial and inflammatory, since the burden was still on the State to prove its case beyond a reasonable doubt so as to convince the jury that there had been an unlawful killing with malice and that the circumstances of the killing justified a finding of premeditation, deliberation and a specific intent to kill. State v. Williams, 289 N.C. 439, 222 S.E.2d 242, 1976 N.C. LEXIS 1297, vacated in part, 429 U.S. 809, 97 S. Ct. 45, 50 L. Ed. 2d 69, 1976 U.S. LEXIS 2345 (1976).

Same — Gruesome Character. —

If a photograph is relevant and material, the fact that it is gory or gruesome, and thus may tend to arouse prejudice, will not alone render it inadmissible. State v. Mercer, 275 N.C. 108, 165 S.E.2d 328, 1969 N.C. LEXIS 354 (1969), overruled, State v. Caddell, 287 N.C. 266, 215 S.E.2d 348, 1975 N.C. LEXIS 1120 (1975).

In a prosecution for homicide, photographs showing the condition of the body when found, the location where found, and the surrounding conditions at the time the body was found are not rendered incompetent by their portrayal of the gruesome spectacle and horrifying events which the witness testifies they accurately portray. State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241, 1969 N.C. LEXIS 393 (1969), rev'd, 403 U.S. 948, 91 S. Ct. 2283, 29 L. Ed. 2d 859 (1971); State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572, 1971 N.C. LEXIS 749 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761, 1972 U.S. LEXIS 1952 (1972).

The fact that a photograph depicts a horrible, gruesome and revolting scene, indicating a vicious, calculated act of cruelty, malice or lust, does not render the photograph incompetent in evidence, when properly authenticated. State v. Duncan, 282 N.C. 412, 193 S.E.2d 65, 1972 N.C. LEXIS 970 (1972).

In a prosecution for second-degree murder or involuntary manslaughter photographs depicting the way deceased looked at the hospital the night he died are not inadmissible because they were not made at the time of the event, or because they were gory or gruesome. State v. Cox, 289 N.C. 414, 222 S.E.2d 246, 1976 N.C. LEXIS 1294 (1976).

In a prosecution for first-degree murder the fact that a photograph depicts a gruesome scene does not render it incompetent. State v. Williams, 289 N.C. 439, 222 S.E.2d 242, 1976 N.C. LEXIS 1297, vacated in part, 429 U.S. 809, 97 S. Ct. 45, 50 L. Ed. 2d 69, 1976 U.S. LEXIS 2345 (1976).

Same — Excessive Repetition. —

Where a prejudicial photograph is relevant, competent and therefore admissible, the admission of an excessive number of photographs depicting substantially the same scene may be sufficient ground for a new trial when the additional photographs add nothing in the way of probative value but tend solely to inflame the jurors. State v. Mercer, 275 N.C. 108, 165 S.E.2d 328, 1969 N.C. LEXIS 354 (1969), overruled, State v. Caddell, 287 N.C. 266, 215 S.E.2d 348, 1975 N.C. LEXIS 1120 (1975).

Map. —

In a murder trial where guilt was based on circumstantial evidence, the trial court committed reversible error in refusing to admit into evidence defendant’s proposed exhibit, a drawing found by law enforcement officers among victim’s personal effects, which included a rough map of the area surrounding defendant’s North Carolina home and numerous written notations indicating a possible larceny scheme. The exhibit was clearly relevant to a crucial issue in the case, namely, whether this defendant, and not some other person, was in fact the perpetrator of the crime, and it therefore should have been admitted into evidence at trial. State v. McElrath, 322 N.C. 1, 366 S.E.2d 442, 1988 N.C. LEXIS 122 (1988).

Victim’s Medical Records. —

The court examined sealed medical records of the victim, which the victim’s hospital asserted as privileged under G.S. 8-53, and concluded that they contained no information exculpatory of defendant’s guilt or material to her defense or punishment. State v. Jarrett, 137 N.C. App. 256, 527 S.E.2d 693, 2000 N.C. App. LEXIS 318 (2000).

VIII.Instructions

A.In General

Degree of Proof. —

No set formula is required to convey to the jury the fixed principle relating to the degree of proof required for conviction. State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572, 1971 N.C. LEXIS 749 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761, 1972 U.S. LEXIS 1952 (1972).

A trial judge is not required to define “reasonable doubt” without a request to do so, but if he does undertake to define it, the definition should be in substantial accord with the definitions of this court. State v. Shepherd, 288 N.C. 346, 218 S.E.2d 176, 1975 N.C. LEXIS 982 (1975).

The defining of “reasonable doubt” as a possibility of innocence not only was not reversible error but constituted an instruction more favorable to the defendant than the usual definitions such as “fully satisfied,” “entirely convinced,” or “satisfied to a moral certainty.” State v. Wright, 282 N.C. 364, 192 S.E.2d 818, 1972 N.C. LEXIS 964 (1972).

Reasonable Doubt as “Honest, Substantial Misgiving”. —

Instruction in murder trial which read in part “A reasonable doubt, as that term is employed in the administration of criminal law, is an honest, substantial misgiving,” was not error. State v. Hudson, 331 N.C. 122, 415 S.E.2d 732, 1992 N.C. LEXIS 211 (1992), cert. denied, 506 U.S. 1055, 113 S. Ct. 983, 122 L. Ed. 2d 136, 1993 U.S. LEXIS 150 (1993).

Ability to Form Specific Intent. —

The trial court committed reversible error in refusing to instruct the jury to consider the defendant’s mental condition in connection with his ability to form a specific intent to kill and instead gave the pattern instruction which explains intent as a state of mind or mental attitude which may be inferred from surrounding circumstances rather than by direct evidence. State v. Williams, 116 N.C. App. 225, 447 S.E.2d 817, 1994 N.C. App. LEXIS 900 (1994).

Defendant’s first degree murder conviction for stabbing his wife to death was affirmed because the trial court did not error in giving a jury instruction which limited the purpose of evidence that was introduced regarding defendant’s prior bad acts to the determination of defendant’s intent. State v. Nguyen, 178 N.C. App. 447, 632 S.E.2d 197, 2006 N.C. App. LEXIS 1571 (2006).

Inability to Form Specific Intent. —

The trial court did not err in instructing the jury that in order to find that defendant could not form a specific intent to commit a felony or that the defendant was mentally incapable of premeditation and deliberation they must find that the defendant was “utterly incapable” (or “utterly unable”) of forming a specific intent. State v. Griffin, 288 N.C. 437, 219 S.E.2d 48, 1975 N.C. LEXIS 1009 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3210, 49 L. Ed. 2d 1210, 1976 U.S. LEXIS 4212 (1976).

Killing Must Have Been Intentional. —

While it was error for the trial court to omit the word “intentionally” before the word “killed” in each instance that the court instructed on the inference of malice from use of a deadly weapon, the omission did not constitute plain error where the instructions, taken as a whole, made it clear that the killing must have been intentional in order for defendant to be convicted of first-degree murder, and essentially all the evidence, both that of the State and defendant, showed that the killing was intentional. State v. Hedgepeth, 330 N.C. 38, 409 S.E.2d 309, 1991 N.C. LEXIS 663 (1991).

A charge, in the court’s final mandate, that the jury had to be satisfied beyond a reasonable doubt that the killing was with premeditation and deliberation, also charged that the killing had to be intentional. State v. Larrimore, 340 N.C. 119, 456 S.E.2d 789, 1995 N.C. LEXIS 242 (1995).

With respect to jury instructions, the phrase “that he intended to kill” is self-explanatory, and absent a special request for instructions from the defendant, the presiding judge was not required to supply its definition. State v. Sparks, 285 N.C. 631, 207 S.E.2d 712, 1974 N.C. LEXIS 1065 (1974), vacated, 428 U.S. 905, 96 S. Ct. 3213, 49 L. Ed. 2d 1212, 1976 U.S. LEXIS 2265 (1976).

Instruction Held to Relieve State’s Burden of Proving Specific Intent. —

Trial court’s instruction to the jury that “[t]he phrase intentionally killed refers not to the presence of a specific intent to kill; the sense of the expression is that the act that resulted in death is intentionally committed,” entirely relieved the State of its burden of proving the specific intent required for first-degree murder, and was, therefore, error. State v. Keel, 333 N.C. 52, 423 S.E.2d 458, 1992 N.C. LEXIS 668 (1992).

Instruction Held Not to Relieve State’s Burden of Proving Malice. —

Instruction stating that if the State proved beyond a reasonable doubt that defendant killed deceased with a deadly weapon or intentionally inflicted a wound upon the deceased with a deadly weapon that proximately caused the deceased’s death, the law requires, first, that the killing was unlawful and, second, that it was done with malice, the use of the word “requires” did not create a mandatory presumption of malice. The instruction was more likely to be interpreted by lay jurors as creating additional requirements for the State’s proof, by depriving the State of any permissible inference of malice from an intentional killing with a deadly weapon. Therefore, the instruction did not relieve the State of its burden to prove malice beyond a reasonable doubt. State v. Laws, 325 N.C. 81, 381 S.E.2d 609, 1989 N.C. LEXIS 377 (1989), vacated, 494 U.S. 1022, 110 S. Ct. 1465, 108 L. Ed. 2d 603, 1990 U.S. LEXIS 1489 (1990) (in light of) 316 N.C. 382, 342 S.E.2d 901 (1986).

Given defendant’s use of a deadly weapon and the fact that when the victim tried to escape by shutting the front door, defendant shot the door near the doorknob four to six times before kicking the door, the court was not persuaded that, absent the malice instruction, there was a reasonable possibility that the jury would have reached a different verdict on the charge of attempted first-degree murder. State v. Yarborough, 271 N.C. App. 159, 843 S.E.2d 454, 2020 N.C. App. LEXIS 307 (2020).

Instruction on Inference of Premeditation and Deliberation. —

In trial for first-degree murder and robbery, evidence of lack of provocation, including victim’s weakened condition and defendant’s physical integrity on examination, and of defendant’s conduct in leaving the scene of the assault and callously selling victim’s personal belongings constituted evidence from which premeditation could be inferred; therefore, instruction regarding proof from which premeditation and deliberation could be inferred was supported by the evidence. State v. Davis, 325 N.C. 607, 386 S.E.2d 418, 1989 N.C. LEXIS 596 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2587, 110 L. Ed. 2d 268, 1990 U.S. LEXIS 2900 (1990).

“Lack of provocation by the victim,” “use of grossly excessive force,” and “infliction of lethal wounds after the victim is felled,” as cited in the North Carolina Pattern Jury Instructions, N.C.P.I.-Crim. 206.10 are merely examples of circumstances which, if found, the jury could use to infer premeditation and deliberation. It is not required that each of the listed elements be proven beyond a reasonable doubt before the jury may infer premeditation and deliberation. State v. Cummings, 326 N.C. 298, 389 S.E.2d 66, 1990 N.C. LEXIS 116 (1990).

Failure to give defendant’s requested instruction on the felled victim theory of premeditation and deliberation was not error because the State established the elements of premeditation and deliberation by evidence other than the number of shots fired; the State presented evidence that defendant walked away from the argument with the victim, entered his house, retrieved a firearm from a closet, exited the house, and then shot the victim, forming intent sometime within that timeframe. State v. Snider, 168 N.C. App. 701, 609 S.E.2d 231, 2005 N.C. App. LEXIS 395 (2005).

Instruction on Premeditation Not Plain Error Where Defense Was Total Innocence. —

Where, upon defendant’s trial for murder, he did not attempt to establish that he shot victim in an unpremeditated manner, but rather, his defense, presented by the testimony of several alibi witnesses, was total innocence, the trial court’s failure to elucidate the meaning of premeditation in its instructions to the jury did not constitute plain error. State v. Brown, 327 N.C. 1, 394 S.E.2d 434, 1990 N.C. LEXIS 563 (1990).

Alibi Instruction Not Required. —

In prosecution for first-degree murder, where the record showed that the crime was committed on a certain corner at a specified time, and defendant testified that he was on that corner at that time, there was insufficient evidence to require an instruction on alibi, even had there been a special request for it. State v. Waddell, 289 N.C. 19, 220 S.E.2d 293, 1975 N.C. LEXIS 871 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1210, 1976 U.S. LEXIS 4215 (1976).

Instruction on Diminished Capacity Not Required. —

While there was expert testimony indicating that defendant suffered from post traumatic stress disorder, the after-effects of a concussion, and alcohol dependence, defendant was not entitled to an instruction on diminished capacity because the expert testimony did not explain how those circumstances impaired defendant’s ability to premeditate, deliberate, or form specific intent to kill. State v. McDowell, 215 N.C. App. 184, 715 S.E.2d 602, 2011 N.C. App. LEXIS 1896 (2011).

Instruction on accident not required. —

Defendant was not entitled an instruction on the defense of accident, despite defendant’s claim to have abandoned the burglary before shooting the murder victim, because defendant was engaged in misconduct, breaking and entering into a home with the intent to commit robbery, at the time of the shooting. State v. Yarborough, 198 N.C. App. 22, 679 S.E.2d 397, 2009 N.C. App. LEXIS 1078 (2009), cert. denied, 363 N.C. 812, 693 S.E.2d 143, 2010 N.C. LEXIS 144 (2010).

Judge’s failure to give instruction on accident in a murder prosecution was error; however, where defendant’s testimony was contradicted by State’s witness, defendant was impeached by his prior inconsistent statements and his past criminal activity, and defendant’s story completely lacked the ring of truth, no plain error was found. See State v. Loftin, 322 N.C. 375, 368 S.E.2d 613, 1988 N.C. LEXIS 363 (1988).

Guilt of Accomplice. —

In a prosecution for murder where an accomplice testified for the State, the trial court did not err in failing to instruct the jury that the accomplice was guilty, as an accomplice, of the crime charged against defendant. State v. Keller, 50 N.C. App. 364, 273 S.E.2d 741, 1981 N.C. App. LEXIS 2123 (1981).

Instruction as to Aiding and Abetting. —

Defendant’s conviction for first-degree murder, under a theory of aiding and abetting, was affirmed because the trial court’s clarifying instructions properly set out the elements of the crime and did not lessen the state’s burden of proof. State v. Glynn, 178 N.C. App. 689, 632 S.E.2d 551, 2006 N.C. App. LEXIS 1676 (2006), writ denied, 819 S.E.2d 732, 2018 N.C. LEXIS 984 (2018).

Instruction as to Accessory Before the Fact. —

Where the trial court’s instructions made no mention of the necessary causal connection between defendant’s alleged statements and principal’s actions, simply stating that defendant should be found guilty if the jury found that principal murdered victim, and that defendant “knowingly instigated, counseled or procured” the murder, the jury was not adequately instructed with respect to the chain of causation necessary to a conviction of accessory before the fact to murder. State v. Davis, 319 N.C. 620, 356 S.E.2d 340, 1987 N.C. LEXIS 2088 (1987).

Instruction Permitting Verdict of Guilty as Accessory to Second-Degree Murder. —

In a prosecution of a defendant as an accessory before the fact to the murder of her husband, defendant was not prejudiced by an instruction which would permit the jury to return a verdict of guilty as an accessory to murder in the second degree. State v. Benton, 276 N.C. 641, 174 S.E.2d 793, 1970 N.C. LEXIS 735 (1970).

It was not plain error for a trial court to instruct on the offense of accessory after the fact to second-degree murder because the State presented no evidence about what may have transpired between the victim and the principal offender before the principal shot the victim, and while physical evidence could have supported a finding of premeditation and deliberation, there was also testimony that the witness thought the victim had been “jumped,” supporting a reasonable inference that the attack was spontaneous. State v. Brewington, 179 N.C. App. 772, 635 S.E.2d 512, 2006 N.C. App. LEXIS 2133 (2006).

Instruction Permitting Verdict of Guilty of Voluntary Manslaughter. —

Where the jury was instructed that it could find defendant guilty of first-degree murder, second-degree murder, or not guilty, and the jury returned a verdict of guilty of first-degree murder, any error in the trial court’s failure to instruct the jury on voluntary manslaughter was harmless. State v. Bunnell, 340 N.C. 74, 455 S.E.2d 426, 1995 N.C. LEXIS 168 (1995).

Instruction on Lesser-Included Offense of Involuntary Manslaughter. —

Evidence of recklessness by defendant in selling the victim methadone supported charges on both second-degree murder and the lesser-included offense of involuntary manslaughter to the jury. State v. Barnes, 226 N.C. App. 318, 741 S.E.2d 457, 2013 N.C. App. LEXIS 344 (2013).

The court did not commit “plain error” in failing to charge the jury on involuntary manslaughter, where the only possible evidentiary support for an involuntary manslaughter verdict was defendant’s statement to the police to the effect that he did not stab the victim and that she twice ran onto his knife, because defendant did not rely upon the statement in the trial court, but repudiated it as a lie. State v. Pulley, 90 N.C. App. 673, 369 S.E.2d 634, 1988 N.C. App. LEXIS 591 (1988).

Instruction on action in concert, as a permissible basis for finding defendant guilty of first-degree murder was properly given in view of the evidence, and where defendant himself struck the fatal blow. State v. Wilson, 322 N.C. 117, 367 S.E.2d 589, 1988 N.C. LEXIS 297 (1988).

Although evidence adduced at trial would support a jury finding that the defendant acted in perfect defense of another, as it also would support a finding that the defendant and another acted in concert to commit first-degree murder, the trial court properly gave an instruction on the acting in concert theory. State v. Perry, 338 N.C. 457, 450 S.E.2d 471, 1994 N.C. LEXIS 713 (1994).

District court did not abuse its discretion by instructing the jury where it gave the definition of conspiracy four times and gave a long instruction on the definition of murder under North Carolina law. United States v. Celestine, 43 Fed. Appx. 586, 2002 U.S. App. LEXIS 16140 (4th Cir. 2002), cert. denied, 537 U.S. 1061, 123 S. Ct. 644, 154 L. Ed. 2d 546, 2002 U.S. LEXIS 8929 (2002), cert. denied, 537 U.S. 1094, 123 S. Ct. 706, 154 L. Ed. 2d 642, 2002 U.S. LEXIS 9354 (2002), cert. denied, 537 U.S. 1095, 123 S. Ct. 708, 154 L. Ed. 2d 644, 2002 U.S. LEXIS 9369 (2002), cert. denied, 537 U.S. 1144, 123 S. Ct. 944, 154 L. Ed. 2d 843, 2003 U.S. LEXIS 212 (2003).

Was erroneously given regarding defendant’s first-degree murder charge, as the State failed to present any evidence that defendant acted with another; moreover, the error was not harmless, as contended by the State, because the trial court also erroneously informed the jury in its instructions that it could convict defendant of first-degree murder on the basis of acting in concert under both felony murder and premeditation and deliberation theories. State v. Windley, 173 N.C. App. 187, 617 S.E.2d 682, 2005 N.C. App. LEXIS 1927 (2005), cert. dismissed, 360 N.C. 295, 629 S.E.2d 290, 2006 N.C. LEXIS 541 (2006), cert. dismissed, 629 S.E.2d 288, 2006 N.C. LEXIS 833 (2006).

Finding of “an agreement to kill” is equivalent to finding an agreement to commit an intentional murder, even in the absence of an instruction requiring the latter finding, and the finding of an agreement to kill is equivalent to the finding of an agreement to premeditate and deliberate. State v. Brewton, 173 N.C. App. 323, 618 S.E.2d 850, 2005 N.C. App. LEXIS 2027 (2005), writ denied, 636 S.E.2d 812, 2006 N.C. LEXIS 1141 (2006).

Instructions Permitting Conviction of Both Defendants If One Found Guilty. —

Where the jury instructions in a case in which two defendants were jointly tried for rape and murder were susceptible of the construction that the jury should convict both defendants if it found one of them guilty, defendants would be granted a new trial as to the charges against them. State v. McCollum, 321 N.C. 557, 364 S.E.2d 112, 1988 N.C. LEXIS 11 (1988).

Characterization of Deceased Held Harmless Error. —

In a prosecution for first-degree murder, the trial judge’s characterization of deceased as the common-law husband of the defendant in his charge to the jury was harmless error. State v. Hunt, 289 N.C. 403, 222 S.E.2d 234, 1976 N.C. LEXIS 1293, vacated in part, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976).

Instruction as to Definition of Life Imprisonment in First-Degree Murder Case. —

When jurors sent a question regarding the definition of life imprisonment in a first-degree murder case, the trial judge erred by adding a statement to the definition of life in prison without parole that the jurors should decide punishment “wholly uninfluenced by consideration of what another arm of the government might or might not do in the future”; that extraneous language contained the suggestion that “life without parole” was not the only alternative to the death sentence and was, therefore, erroneous. State v. Boggess, 358 N.C. 676, 600 S.E.2d 453, 2004 N.C. LEXIS 912 (2004).

Instruction as to Right to Consider Eligibility to Parole. —

When, in a prosecution for murder in the first degree, the question of eligibility for parole arises spontaneously during the deliberations of the jury and is brought to the attention of the court by independent inquiry of the jury and request for information, the court should instruct the jury that the question of eligibility for parole is not a proper matter for the jury to consider and should be eliminated entirely from their deliberations, and the action of the court in merely telling the jury that it cannot answer the inquiry must be held for prejudicial error upon appeal from conviction of the capital felony without recommendation of life imprisonment. State v. Conner, 241 N.C. 468, 85 S.E.2d 584, 1955 N.C. LEXIS 385 (1955).

Aggravating Factor of Pecuniary Gain. —

Submission to the jury of the aggravating factor of pecuniary gain does not relitigate the question of intentional killing or any element of the offense of first-degree murder under the felony-murder rule. State v. Irwin, 304 N.C. 93, 282 S.E.2d 439, 1981 N.C. LEXIS 1331 (1981).

Flight. —

So long as there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged, an instruction of flight is properly given. State v. Green, 321 N.C. 594, 365 S.E.2d 587, 1988 N.C. LEXIS 112, cert. denied, 488 U.S. 900, 109 S. Ct. 247, 102 L. Ed. 2d 235, 1988 U.S. LEXIS 4317 (1988).

The fact that there may be other reasonable explanations for defendant’s conduct does not render an instruction on flight improper. State v. Green, 321 N.C. 594, 365 S.E.2d 587, 1988 N.C. LEXIS 112, cert. denied, 488 U.S. 900, 109 S. Ct. 247, 102 L. Ed. 2d 235, 1988 U.S. LEXIS 4317 (1988).

Instruction on Flight Held Warranted. —

As an escape from custody constitutes evidence of flight, evidence of defendant’s attempt to escape from custody following his arrest provided support for the trial court’s instruction on flight. State v. Levan, 326 N.C. 155, 388 S.E.2d 429, 1990 N.C. LEXIS 10 (1990).

Where following the shooting, defendant first attempted to conceal victim’s body by ordering accomplice to drag it further into the woods by the roadside where the shooting had occurred, ordered accomplice to wipe the fingerprints off the gun and then to throw the murder weapon into a nearby river from which it was never recovered, tried to throw victim’s clothes and personal effects into a dumpster and eventually threw the items over the guard rail along a major highway, his actions were sufficient to support the trial court’s instruction on flight, despite fact defendant returned to his home following shooting and approached five law enforcement officers within 48 hours of victim’s murder. State v. Levan, 326 N.C. 155, 388 S.E.2d 429, 1990 N.C. LEXIS 10 (1990).

Trial court properly refused to instruct that the automatism/unconsciousness defense applied to charges of felony murder, G.S. 14-17, because the underlying kidnapping of the victim and the killing of the victim were a single transaction, and thus the kidnapping provided the voluntary act for purposes of the felony murder rule; although a psychiatrist testified that defendant was in a dissociative state when he actually killed the victim, there was no evidence that defendant was in a dissociative state when he kidnapped the victim. State v. Boggess, 195 N.C. App. 770, 673 S.E.2d 791, 2009 N.C. App. LEXIS 257 (2009).

Voluntary Intoxication. —

There was no prejudicial error in refusing to instruct the jury on voluntary intoxication as it related to the burning of defendant’s dwelling in a felony murder case, where the court did so charge the jury in the murder part of the case. State v. Hales, 344 N.C. 419, 474 S.E.2d 328, 1996 N.C. LEXIS 487 (1996).

Defendant’s conviction of first-degree murder under G.S. 14-17, was affirmed; the trial court properly denied defendant’s requested jury instructions on voluntary intoxication and second-degree murder, as defendant showed no signs of intoxication when he committed the crime, and the evidence of premeditation was very strong, and the trial court did not abuse its authority to question witnesses under G.S. 8C-1, N.C. R. Crim. P. 614(b), as the trial court only questioned jurors to focus the witness, or to clarify the testimony. State v. Rios, 169 N.C. App. 270, 610 S.E.2d 764, 2005 N.C. App. LEXIS 685 (2005).

Robbery Occurring after Murder. —

Where a jury could reasonably infer that murder and subsequent robbery were all part of one continuous transaction, the trial court’s instructions on this issue were properly supported by the evidence. State v. Morganherring, 350 N.C. 701, 517 S.E.2d 622, 1999 N.C. LEXIS 881 (1999), cert. denied, 529 U.S. 1024, 120 S. Ct. 1432, 146 L. Ed. 2d 322, 2000 U.S. LEXIS 1998 (2000).

Inaccurate Statements of Law. —

The court did not err in refusing to give defendant’s requested instruction where it was not an accurate statement of the law. State v. Harden, 344 N.C. 542, 476 S.E.2d 658, 1996 N.C. LEXIS 500 (1996), cert. denied, 520 U.S. 1147, 117 S. Ct. 1321, 137 L. Ed. 2d 483, 1997 U.S. LEXIS 2017 (1997).

Instruction on Second-Degree Murder Not Required. —

Because the evidence did not establish that defendant formed the intent to kill the victim under the influence of provocation such that premeditation and deliberation were negated, the trial court did not err in failing to instruct the jury on second-degree murder. State v. Holmes, 263 N.C. App. 289, 822 S.E.2d 708, 2018 N.C. App. LEXIS 1260 (2018).

Instruction on Voluntary Manslaughter Not Required. —

Defendant did not present evidence of sudden provocation, and the State’s evidence did not establish sudden provocation, much less that he acted under an immediate grip of sufficient passion to warrant a voluntary manslaughter instruction; without evidence of such a provocation and heat of passion, the trial court did not err in failing to instruct the jury on voluntary manslaughter. State v. Holmes, 263 N.C. App. 289, 822 S.E.2d 708, 2018 N.C. App. LEXIS 1260 (2018).

Double Jeopardy. —

Trial court did not err by submitting to the jury both attempted first-degree murder and assault with a deadly weapon inflicting serious injury, and by imposing consecutive sentences for the offenses, because each offense contained at least one element not included in the other; therefore, defendants were not been subjected to double jeopardy. State v. Tirado, 358 N.C. 551, 599 S.E.2d 515, 2004 N.C. LEXIS 911 (2004), cert. denied, 544 U.S. 909, 125 S. Ct. 1600, 161 L. Ed. 2d 285, 2005 U.S. LEXIS 2312 (2005).

Failure to Give Instruction Was Harmless. —

In a case in which defendant passed a tow truck on the shoulder and struck and killed the victim, because the trial court instructed the jury on second-degree murder and the lesser-included offenses of involuntary manslaughter and misdemeanor death by vehicle, both of which were lesser offenses that involved killings that were unintentional, but the jury chose to convict defendant of second-degree murder, which required a mens rea of malice, the jury’s verdict rejected the notion that defendant’s passing of the tow truck along the shoulder was unintentional, and, thus, any error in failing to give an instruction on accident was harmless. State v. Nazzal, 270 N.C. App. 345, 840 S.E.2d 881, 2020 N.C. App. LEXIS 166 (2020).

B.Degree of Offense

When Jury May Be Instructed to Find Defendant Guilty of First-Degree Murder or Not Guilty. —

It is only in cases where all of the evidence tends to show that the homicide was committed by means of poison, lying in wait, imprisonment, starving, torture, or in the perpetration or attempt to perpetrate a felony, that the trial judge can instruct the jury that they must return a verdict of murder in the first degree or not guilty. State v. Perry, 209 N.C. 604, 184 S.E. 545, 1936 N.C. LEXIS 307 (1936).

Where no inference can fairly be deduced from the evidence of or tending to prove a murder in the second degree or manslaughter, the trial judge should instruct the jury that it is their duty to render a verdict of “guilty of murder in the first degree,” if they are satisfied beyond a reasonable doubt, or of “not guilty.” State v. Smith, 294 N.C. 365, 241 S.E.2d 674, 1978 N.C. LEXIS 1255 (1978).

If the evidence is sufficient to fully satisfy the state’s burden of proving each and every element of the offense of first-degree murder and there is no evidence to negate these elements other than the defendant’s denial that he committed the offense, second-degree murder should not be submitted to the jury. State v. Moseley, 336 N.C. 710, 445 S.E.2d 906, 1994 N.C. LEXIS 420 (1994), cert. denied, 513 U.S. 1120, 115 S. Ct. 923, 130 L. Ed. 2d 802, 1995 U.S. LEXIS 677 (1995), cert. denied, 345 N.C. 645, 483 S.E.2d 716, 1997 N.C. LEXIS 139 (1997).

The absence of self-defense is not an “element” of murder, nevertheless, upon the particular evidence presented, the trial court correctly instructed the jury that to convict the defendant of murder in the first degree the jury must find that he did not act in self-defense. State v. Keel, 337 N.C. 469, 447 S.E.2d 748, 1994 N.C. LEXIS 486 (1994), cert. denied, 513 U.S. 1198, 115 S. Ct. 1270, 131 L. Ed. 2d 147, 1995 U.S. LEXIS 1797 (1995).

Murder by Means of Lying in Wait. —

When the evidence supports a finding that the murder was perpetrated by means of lying in wait and there is no conflict in the evidence, the trial court is not required to instruct the jury on second-degree murder. State v. Leroux, 326 N.C. 368, 390 S.E.2d 314, 1990 N.C. LEXIS 163, cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155, 1990 U.S. LEXIS 4767 (1990).

The trial court may not give an instruction on second-degree murder when the state’s evidence supports a jury finding of each element of lying in wait and when there is no conflict with respect to such evidence. State v. Leroux, 326 N.C. 368, 390 S.E.2d 314, 1990 N.C. LEXIS 163, cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155, 1990 U.S. LEXIS 4767 (1990).

Trial court did not commit plain error by instructing the jury that it could convict defendant of first-degree murder based on the theory of lying in wait because the evidence suggested that the shooting immediately, or almost immediately, followed defendant’s ambush of the victim outside the house, and the evidence did not show that the victim was aware of defendant’s presence outside the house or defendant’s purpose to kill her; even if defendant could show error on that basis, defendant could not show prejudice resulting from the error because there was no possibility that, had the error in question not been committed, a different result would have been reached at trial. State v. Gosnell, 231 N.C. App. 106, 750 S.E.2d 593, 2013 N.C. App. LEXIS 1246 (2013).

It was no error to instruct a jury on a lying in wait theory of first degree murder absent evidence of a deadly purpose to kill, because (1) a lying in wait theory of murder did not require proof of a specific intent to kill, synonymous with a deadly purpose to kill, and (2) the evidence was sufficient where the initial rationale for a concealed attack on a victim which ended in murder was to “get some money.” State v. Grullon, 240 N.C. App. 55, 770 S.E.2d 379, 2015 N.C. App. LEXIS 172 (2015).

Where there was a conflict in the evidence regarding whether the defendant lay in wait, the evidence supported submission to the jury of second-degree murder and voluntary manslaughter. State v. Camacho, 337 N.C. 224, 446 S.E.2d 8, 1994 N.C. LEXIS 414 (1994).

For all murder cases prosecuted under this section, when there is a conflict in the evidence regarding whether defendant committed the underlying felony or was lying in wait, all lesser degrees of homicide charged in the indictment pursuant to G.S. 15-144 and supported by the evidence must be submitted to the jury. State v. Camacho, 337 N.C. 224, 446 S.E.2d 8, 1994 N.C. LEXIS 414 (1994).

Where there was abundant evidence that homicide was committed in the perpetration of rape, and that defendant was the one who committed the offense, and no element of murder in the second degree or manslaughter was made to appear, court properly limited the possible verdicts to guilty of murder in first degree or not guilty. State v. Mays, 225 N.C. 486, 35 S.E.2d 494, 1945 N.C. LEXIS 424 (1945); State v. Scales, 242 N.C. 400, 87 S.E.2d 916, 1955 N.C. LEXIS 523 (1955).

Where all the evidence is to the effect that murder was committed in the perpetration of a robbery, it is not error for the court to limit the jury to a verdict of guilty of murder in the first degree or not guilty under this section. State v. Gosnell, 208 N.C. 401, 181 S.E. 323, 1935 N.C. LEXIS 425 (1935); State v. Matthews, 226 N.C. 639, 39 S.E.2d 819, 1946 N.C. LEXIS 301 (1946).

Where all the evidence for the State tends to show that the defendants killed the deceased while attempting to rob him, the crime is murder in the first degree, under this section, and the failure of the trial court to submit the issue of guilty of murder in the second degree is not error. State v. Donnell, 202 N.C. 782, 164 S.E. 352, 1932 N.C. LEXIS 220 (1932). See also, State v. Brown, 231 N.C. 152, 56 S.E.2d 441, 1949 N.C. LEXIS 507 (1949).

In a case of murder in the first degree committed in the perpetration of, or attempt to perpetrate, a robbery, instruction that the jury should return a verdict of guilty as charged, guilty as charged with a recommendation for life imprisonment, or not guilty is a proper instruction. When the indictment and evidence disclose a killing in the perpetration of a robbery, only one of such verdicts may be returned. State v. Hill, 276 N.C. 1, 170 S.E.2d 885, 1969 N.C. LEXIS 335 (1969), rev'd, 403 U.S. 948, 91 S. Ct. 2287, 29 L. Ed. 2d 860 (1971).

Where the evidence permits a legitimate inference that a murder was committed in perpetration of a robbery, it is not prejudicial error for the court to give the State’s contentions and to charge the jury that a murder committed in the perpetration of a robbery will be deemed murder in the first degree. State v. Rich, 277 N.C. 333, 177 S.E.2d 422, 1970 N.C. LEXIS 603 (1970).

A murder committed in the perpetration or attempted commission of kidnapping or holding a human being for ransom constitutes murder in the first degree and an instruction to this effect upon supporting evidence cannot be held for error. State v. Streeton, 231 N.C. 301, 56 S.E.2d 649, 1949 N.C. LEXIS 526 (1949).

Any error of trial judge in failing to instruct on involuntary manslaughter was harmless where the jury specifically found that the underlying felony of kidnapping was committed, which supported defendant’s conviction of murder in the first degree on the basis of felony murder. State v. Woods, 316 N.C. 344, 341 S.E.2d 545, 1986 N.C. LEXIS 2070 (1986).

Murder Committed in Course of Kidnapping. —

The court properly instructed the jury on the theory of felony murder based on the underlying felony of kidnapping, while applying the theory of acting in concert. State v. Roseborough, 344 N.C. 121, 472 S.E.2d 763, 1996 N.C. LEXIS 404 (1996).

Murder Committed in Course of Burglary. —

In a prosecution where defendants were charged with first-degree murder and the evidence tended to show that defendants killed decedent in the perpetration of the underlying felony of burglary, but there was no evidence that decedent was killed other than in the course of the commission of burglary, the trial court was not required to submit lesser included offenses of second-degree murder and voluntary manslaughter to the jury. State v. Rinck, 303 N.C. 551, 280 S.E.2d 912, 1981 N.C. LEXIS 1197 (1981).

Murder Committed in Course of Robbery. —

Trial court erroneously instructed the jury it could convict defendant of second-degree murder if it found he acted in concert with co-felon “with a common purpose to commit robbery”; a conviction for second-degree murder requires a finding that defendant acted intentionally and with malice to kill the victim; therefore the erroneous instruction given by the trial court could have allowed defendant to be convicted of second-degree murder based on the defendant’s mens rea for robbery. State v. Hunt, 91 N.C. App. 574, 372 S.E.2d 744, 1988 N.C. App. LEXIS 895 (1988).

Duty of Judge to Determine If Instruction on Lesser Offense Is Warranted. —

It is the duty of the judge to determine, in the first instance, if there is any evidence or any inference fairly deducible therefrom tending to prove one of the lower grades of murder. Having done so, and having concluded that there is no basis for submission of manslaughter to the jury, it was the duty of the judge to instruct it accordingly. State v. Duboise, 279 N.C. 73, 181 S.E.2d 393, 1971 N.C. LEXIS 752 (1971).

When Lesser Included Offense May Be Submitted to Jury. —

Defendant is entitled to have a lesser included offense submitted to the jury under the proper instructions, but only when there is evidence to support that lesser included offense. State v. Brown, 300 N.C. 731, 268 S.E.2d 201, 1980 N.C. LEXIS 1135 (1980).

It is a well-established rule that when the law and evidence justify the use of the felony-murder rule, the court is not required to submit to the jury second-degree murder or manslaughter unless there is evidence to support it. State v. Warren, 292 N.C. 235, 232 S.E.2d 419, 1977 N.C. LEXIS 1057 (1977).

An indictment in the form prescribed by G.S. 15-144 will support a verdict finding the defendant guilty of first-degree murder upon any of the theories set forth in this section or guilty of any lesser offense included within any of those theories. The test in every case involving the propriety of an instruction on a lesser grade of an offense is not whether the jury could convict defendant of the lesser crime, but whether the state’s evidence is positive as to each element of the crime charged and whether there is any conflicting evidence relating to any of these elements. State v. Leroux, 326 N.C. 368, 390 S.E.2d 314, 1990 N.C. LEXIS 163, cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155, 1990 U.S. LEXIS 4767 (1990).

Same — Second-Degree Murder. —

In all cases in which the State relies upon premeditation and deliberation to support a first-degree murder conviction, the court must submit the issue of second-degree murder. State v. Hammond, 34 N.C. App. 390, 238 S.E.2d 198, 1977 N.C. App. LEXIS 1707 (1977); State v. Poole, 298 N.C. 254, 258 S.E.2d 339, 1979 N.C. LEXIS 1356 (1979).

A trial judge is not required to give an instruction on second-degree murder in all first-degree cases, but may only instruct on second-degree murder when the evidence supports such a charge. State v. Williams, 315 N.C. 310, 338 S.E.2d 75, 1986 N.C. LEXIS 1870 (1986).

A plea of not guilty to first degree murder does not, by itself, entitle a defendant to an instruction on second-degree murder. State v. Zuniga, 320 N.C. 233, 357 S.E.2d 898, 1987 N.C. LEXIS 2176, cert. denied, 484 U.S. 959, 108 S. Ct. 359, 98 L. Ed. 2d 384, 1987 U.S. LEXIS 4733 (1987).

Only where defendant has brought forth evidence to negate premeditation and deliberation, or where the evidence is equivocal as to premeditation and deliberation, is defendant entitled to an instruction on second-degree murder. State v. Zuniga, 320 N.C. 233, 357 S.E.2d 898, 1987 N.C. LEXIS 2176, cert. denied, 484 U.S. 959, 108 S. Ct. 359, 98 L. Ed. 2d 384, 1987 U.S. LEXIS 4733 (1987).

An instruction on murder in the second degree is required only when there is evidence to sustain such a verdict. State v. Bullock, 326 N.C. 253, 388 S.E.2d 81, 1990 N.C. LEXIS 14 (1990).

Where a defendant is charged with premeditated and deliberate first degree murder, an instruction on the lesser included offense of second degree murder need be given only if the evidence, reasonably construed, tended to show lack of premeditation and deliberation or would permit a jury to rationally find defendant guilty of the lesser offense and acquit him of the greater. State v. Morston, 336 N.C. 381, 445 S.E.2d 1, 1994 N.C. LEXIS 311 (1994).

A court should instruct on murder in the second degree only when the evidence would permit a reasonable finding that the defendant’s anger and emotion were strong enough to disturb the defendant’s ability to reason. State v. Perry, 338 N.C. 457, 450 S.E.2d 471, 1994 N.C. LEXIS 713 (1994).

Trial court did not err when defendant was found guilty of first degree murder by denying defendant’s request for an instruction on the lesser included offense of second degree murder because the evidence showed that defendant acted with premeditation and deliberation and there was no evidence to suggest a lack thereof. State v. Hicks, 241 N.C. App. 345, 772 S.E.2d 486, 2015 N.C. App. LEXIS 449 (2015).

Same — Manslaughter. —

The trial judge is required to instruct the jury on the lesser included offense of manslaughter only where there is evidence which would sustain such a verdict. It is not error to omit a charge on manslaughter where there is no evidence of manslaughter. State v. Mays, 14 N.C. App. 90, 187 S.E.2d 479, 1972 N.C. App. LEXIS 2043, cert. denied, 281 N.C. 157, 188 S.E.2d 366, 1972 N.C. LEXIS 1035 (1972).

The necessity for instructing the jury as to an included crime of lesser degree, such as manslaughter, than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor. State v. Jones, 291 N.C. 681, 231 S.E.2d 252, 1977 N.C. LEXIS 1233 (1977).

In a prosecution for first-degree murder, instructions on a lesser included offense of manslaughter are required only when there is evidence from which the jury could find that such included crime of lesser degree was committed. State v. Stewart, 292 N.C. 219, 232 S.E.2d 443, 1977 N.C. LEXIS 1055 (1977).

It is difficult to imagine a homicide case in which the evidence supports an instruction on self-defense but not an instruction on voluntary manslaughter based upon an excessive force theory. State v. Best, 79 N.C. App. 734, 340 S.E.2d 524, 1986 N.C. App. LEXIS 2112 (1986), overruled, State v. Maynor, 331 N.C. 695, 417 S.E.2d 453, 1992 N.C. LEXIS 417 (1992).

A defendant is entitled to an instruction on voluntary manslaughter based on imperfect self-defense only if evidence is introduced from which the following may be found: (1) it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and (2) defendant’s belief was reasonable, in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness. State v. Battle, 322 N.C. 69, 366 S.E.2d 454, 1988 N.C. LEXIS 126, cert. denied, 487 U.S. 1220, 108 S. Ct. 2876, 101 L. Ed. 2d 911, 1988 U.S. LEXIS 2963 (1988).

To have been properly entitled to a jury instruction on voluntary manslaughter, defendant was required either to offer his own evidence or to rely upon the State’s evidence to show (1) that he stabbed his wife in the heat of passion, (2) that his passion was provoked by acts of his wife which the law regards as adequate provocation, and (3) that the stabbing occurred immediately after the provocation. State v. Tidwell, 323 N.C. 668, 374 S.E.2d 577, 1989 N.C. LEXIS 4 (1989).

Evidence of several steps taken by two men shot by the defendant, who were admittedly the defendant’s friends, did not amount to evidence of either an assault or a threatened assault that would rise to the level of provocation which would “render the mind incapable of cool reflection,” and therefore, did not warrant the requested instruction on voluntary manslaughter. State v. Huggins, 338 N.C. 494, 450 S.E.2d 479, 1994 N.C. LEXIS 702 (1994).

Trial court did not err by failing to instruct the jury on involuntary manslaughter because defendant did not object to the trial court’s instructions during trial. State v. McCollum, 157 N.C. App. 408, 579 S.E.2d 467, 2003 N.C. App. LEXIS 747 (2003), aff'd, 358 N.C. 132, 591 S.E.2d 519, 2004 N.C. LEXIS 7 (2004).

When Instruction on Lesser Included Offense Should Be Omitted. —

Where the evidence tends to show that the defendant committed the crime charged and there is no evidence of a lesser included offense, the trial court is correct in not charging on the lesser included offense. State v. Brown, 300 N.C. 731, 268 S.E.2d 201, 1980 N.C. LEXIS 1135 (1980).

Trial court correctly denied defendant’s request for instruction on second-degree murder and voluntary manslaughter where those instructions would have permitted the jury to find him not guilty of felony murder while at the same time finding that he was, in some manner, at fault for shooting into the victim’s vehicle, and that outcome would have undermined the imperfect self-defense limitation and the purpose of the felony murder rule. State v. Juarez, 369 N.C. 351, 794 S.E.2d 293, 2016 N.C. LEXIS 1119 (2016).

Second-Degree Murder Instruction Required. —

In a prosecution for first-degree murder, where there was some evidence from which the jury could have inferred that the defendant killed the victim without premeditation and deliberation, it was error for the trial court not to instruct on second-degree murder, since the jury should be instructed on a lesser included offense when there is evidence from which the jury could find that such lesser included offense was committed. State v. Poole, 298 N.C. 254, 258 S.E.2d 339, 1979 N.C. LEXIS 1356 (1979).

While the evidence was sufficient to support the theory of murder committed in the attempted perpetration of the felony of rape and also supported the inference that defendant did not intend to commit rape but sought to have intercourse with his victim on a voluntary basis and that his assault upon her was precipitated when she struck at him while she was trying to drive him from the house, it was the duty of the court upon such evidence to submit the question of defendant’s guilt of murder in the second degree, in addition to the question of defendant’s guilt of murder in the first degree, or not guilty. State v. Knight, 248 N.C. 384, 103 S.E.2d 452, 1958 N.C. LEXIS 495 (1958).

The trial court should have instructed the jury on voluntary intoxication as well as the lesser included offense of second-degree murder, where the defendant produced enough evidence of his intoxication for a reasonable juror to find that defendant neither had the capacity to form the specific intent to rob the victim nor the capacity to commit first-degree murder. State v. Golden, 143 N.C. App. 426, 546 S.E.2d 163, 2001 N.C. App. LEXIS 299 (2001).

Expert testimony finding that defendant was unable to distinguish right from wrong did not negate defendant’s ability to premeditate and deliberate, and thus a jury instruction on second-degree murder was not required. State v. Erickson, 181 N.C. App. 479, 640 S.E.2d 761, 2007 N.C. App. LEXIS 262 (2007).

When defendant was charged with felony murder, pursuant to G.S. 14-17, with felonious child abuse being the underlying felony, a trial court properly instructed the jury on the offense of second degree murder because the jury could rationally find that defendant did not use his hands as a deadly weapon in shaking the infant, and therefore not guilty of felony murder, but that the violent shaking was evidence of malice for purposes of second degree murder. State v. Barrow, 216 N.C. App. 436, 718 S.E.2d 673, 2011 N.C. App. LEXIS 2291 (2011), aff'd, 366 N.C. 141, 727 S.E.2d 546, 2012 N.C. LEXIS 417 (2012).

Second-Degree Murder Instruction Not Required. —

Defendant was not entitled to an instruction on second-degree murder where the State’s evidence showed that defendant and daughter of victim had discussed killing victim in order to collect her life insurance and that victim was severely beaten about the head and was strangled with a telephone cord, and the only evidence tending to negate the required elements of first-degree murder was defendant’s silent, yet implicit, denial that he committed the crime. State v. Williams, 315 N.C. 310, 338 S.E.2d 75, 1986 N.C. LEXIS 1870 (1986).

When all of the evidence tended to show that defendant killed deceased in the perpetration of rape, without evidence of guilt of a less degree of the crime, the court correctly refrained from submitting the question of defendant’s guilt of murder in the second degree. State v. Crawford, 260 N.C. 548, 133 S.E.2d 232, 1963 N.C. LEXIS 775 (1963).

Where the evidence supported each element of the charged crime of first-degree murder by means of poison, and the only evidence to negate these elements was the defendant’s denial that he had committed the offense, the trial court did not err by refusing to instruct the jury on second-degree murder or involuntary manslaughter. State v. Johnson, 317 N.C. 193, 344 S.E.2d 775, 1986 N.C. LEXIS 2794 (1986).

Evidence that defendant, jealous of his ex-lover’s relationship with victim, threatened to kill the victim, and that he obtained a rifle and after calling his ex-lover several times on the night of the shooting, entered her apartment with a key he had managed to obtain, shot the victim once, and while the unarmed victim staggered out of bed, shot him again with the fatal shot, belied anything other than a premeditated and deliberate killing, and an instruction on second-degree murder was not required. State v. Davis, 317 N.C. 315, 345 S.E.2d 176, 1986 N.C. LEXIS 2774 (1986).

Where the evidence showed that defendant either premeditated and deliberated and then murdered her husband, or accidentally shot her husband as she contended throughout her trial, the trial court properly refused to submit the lesser included offenses of second degree murder and involuntary manslaughter to the jury. State v. Hickey, 317 N.C. 457, 346 S.E.2d 646, 1986 N.C. LEXIS 2434 (1986).

Where State adequately established all the elements of first-degree murder, including premeditation and deliberation, and defendant produced no evidence sufficient to negate these elements, the mere possibility that the jury could return with a negative finding did not, without more, require the submission of the lesser included offense, murder in the second degree. State v. Cummings, 326 N.C. 298, 389 S.E.2d 66, 1990 N.C. LEXIS 116 (1990).

Where defendant repeatedly threatened the victim on the day she was killed, concealed a small pistol in one of his pockets and waited in the victim’s apartment until her arrival, had a brief argument with her and as she attempted to leave, pulled out his gun and fired two shots at the back of her head, and the victim died as a result of a gunshot wound to the back of her head, such evidence unequivocally tended to show an intentional killing with malice, premeditation and deliberation, and defendant was not entitled to an instruction on the lesser included offenses of second-degree murder. State v. Stevenson, 327 N.C. 259, 393 S.E.2d 527, 1990 N.C. LEXIS 576 (1990).

Where the evidence, viewed as a whole, was insufficient to negate the elements of premeditation and deliberation, the trial court did not err in failing to instruct the jury on second-degree murder and only charging on possible verdicts of guilty of murder in the first degree or not guilty. State v. Arrington, 336 N.C. 592, 444 S.E.2d 418, 1994 N.C. LEXIS 294 (1994).

Where the State offered evidence that the murder was premeditated and deliberate, and defendant offered no evidence to negate these elements, the trial court’s refusal to give the second-degree murder instruction was proper. State v. Lane, 344 N.C. 618, 476 S.E.2d 325, 1996 N.C. LEXIS 508 (1996).

The trial court was not required to instruct on second-degree murder where the State presented positive, uncontradicted evidence of each element of first-degree murder. State v. Leazer, 353 N.C. 234, 539 S.E.2d 922, 2000 N.C. LEXIS 908 (2000).

Habeas relief for death row petitioner was not warranted where trial court’s instruction on aggravation was proper, and the court’s refusal to instruct the jury on the lesser-included offense of second degree murder did not violate established federal law. Bates v. Lee, 308 F.3d 411, 2002 U.S. App. LEXIS 22094 (4th Cir. 2002), cert. denied, 538 U.S. 1061, 123 S. Ct. 2223, 155 L. Ed. 2d 1113, 2003 U.S. LEXIS 4141 (2003).

Regardless of whether defendant was the first to fire his weapon, the State presented uncontroverted evidence from which the jury could rationally infer that defendant formed the requisite intent for first-degree murder at some point during the period in which he heard shots erupt in the front of the store, stepped around the corner to observe the action, and fired his weapon multiple times. Defendant’s conduct before, during, and after the murder provided sufficient positive evidence of premeditation and deliberation; accordingly, he was not entitled to an instruction on second-degree murder as the lesser included offense of first-degree murder. State v. Taylor, 362 N.C. 514, 669 S.E.2d 239, 2008 N.C. LEXIS 986 (2008), cert. denied, 558 U.S. 851, 130 S. Ct. 129, 175 L. Ed. 2d 84, 2009 U.S. LEXIS 5323 (2009).

Defendant’s admission that he fired three times in the victim’s direction supported a finding of premeditation and deliberation because premeditation and deliberation may be inferred from the multiple shots fired by defendant; accordingly, defendant was not entitled to an instruction on second-degree murder as the lesser included offense of first-degree murder. State v. Taylor, 362 N.C. 514, 669 S.E.2d 239, 2008 N.C. LEXIS 986 (2008), cert. denied, 558 U.S. 851, 130 S. Ct. 129, 175 L. Ed. 2d 84, 2009 U.S. LEXIS 5323 (2009).

Statements indicated that it was only after defendant fired multiple shots in the front of a store that he ran back towards the witnesses and appeared to a witness to be focused on leaving the store. Neither the witness’s testimony nor defendant’s leaving the store after shooting the victim negated premeditation and deliberation such that an instruction on second-degree murder as a lesser included offense of first-degree murder was warranted. State v. Taylor, 362 N.C. 514, 669 S.E.2d 239, 2008 N.C. LEXIS 986 (2008), cert. denied, 558 U.S. 851, 130 S. Ct. 129, 175 L. Ed. 2d 84, 2009 U.S. LEXIS 5323 (2009).

Defendant was not entitled to a jury instruction on second-degree murder as a lesser-included offense of first-degree murder, because defendant conceded that the evidence presented warranted an instruction on the charge of first-degree murder, necessarily acknowledging support for findings of premeditation and deliberation, and defendant pointed to no evidence that the victim was killed without premeditation and deliberation. State v. Laurean, 220 N.C. App. 342, 724 S.E.2d 657, 2012 N.C. App. LEXIS 601 (2012).

In a first-degree murder case, in light of evidence of defendant’s premeditation and deliberation, including testimony that the victim begged for his life, multiple gunshot wounds, and the lack of provocation, defendant was not entitled to an instruction on the lesser-included offense of second-degree murder. State v. Rogers, 227 N.C. App. 617, 742 S.E.2d 622, 2013 N.C. App. LEXIS 613 (2013).

Where the jury had the right to convict defendant of second-degree murder, but convicted defendant of first-degree murder based on felony murder, the failure to instruct them that they could convict of voluntary manslaughter could not have harmed defendant. State v. Price, 344 N.C. 583, 476 S.E.2d 317, 1996 N.C. LEXIS 498 (1996).

Where there was ample evidence to support a finding that defendant premeditated and deliberated a murder, the trial court did not err in refusing to instruct on second-degree murder. State v. Geddie, 345 N.C. 73, 478 S.E.2d 146, 1996 N.C. LEXIS 649 (1996).

Premise for Instruction Held Improper. —

A trial court may not premise a second-degree murder instruction on the possibility that the jury will accept some of the state’s evidence while rejecting other portions of the state’s case. State v. Leroux, 326 N.C. 368, 390 S.E.2d 314, 1990 N.C. LEXIS 163, cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155, 1990 U.S. LEXIS 4767 (1990).

Voluntary Manslaughter Instruction Not Required. —

There being no evidence in the record to sustain a verdict of manslaughter, it was not error for the court to omit manslaughter from the possible verdicts which the jury might return. State v. Vestal, 278 N.C. 561, 180 S.E.2d 755, 1971 N.C. LEXIS 1013 (1971).

In prosecution for second-degree murder, where there was no evidence of just cause or reasonable provocation for the homicide, nor was there evidence of self-defense, unavoidable accident or misadventure, defendant’s self-serving declarations alone were not sufficient to rebut the presumption of malice arising in the case, and the trial court did not err in failing to instruct on manslaughter as a lesser included offense. State v. Mull, 24 N.C. App. 502, 211 S.E.2d 515, 1975 N.C. App. LEXIS 2413 (1975).

Where, in a prosecution for second-degree murder, there is no evidence that defendant killed under the heat of passion raised by sudden provocation and nothing that raises the issue of self-defense, a possible verdict of voluntary manslaughter should not be submitted. State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978).

In a prosecution for second-degree murder involving the death of a child from the so-called “battered child” syndrome, where there was a great disparity in age and size between the victim and her slayer, and particularly where the slayer stood in loco parentis with the child, as a matter of law adequate provocation could not be found to exist so as to justify submission of voluntary manslaughter where the evidence showed that the defendant beat and abused the child unto its death. State v. Vega, 40 N.C. App. 326, 253 S.E.2d 94, 1979 N.C. App. LEXIS 2267, cert. denied, 297 N.C. 457, 256 S.E.2d 809, 1979 N.C. LEXIS 1457 (1979), cert. denied, 444 U.S. 968, 100 S. Ct. 459, 62 L. Ed. 2d 382, 1979 U.S. LEXIS 3869 (1979).

The trial court in a second-degree murder case did not err in failing to charge the jury that it might find defendant, who offered no evidence in his own behalf, guilty of voluntary manslaughter, since evidence presented by the State tended to show that defendant was guilty of murder if he was guilty of anything, and evidence presented by a codefendant tended to show that defendant was not guilty of anything. State v. Gadsden, 300 N.C. 345, 266 S.E.2d 665, 1980 N.C. LEXIS 1078 (1980).

Trial judge properly refused to submit voluntary manslaughter as an alternative verdict, where the State’s evidence tended to show a cold, calculated premeditated shooting by defendant, and defendant’s evidence, on the other hand, tended to show that he did not shoot victim intentionally and never intended to harm him, and that his gun accidentally discharged as he struggled with victim over the gun, which defendant had picked up to convince victim to stop choking him. State v. Blake, 317 N.C. 632, 346 S.E.2d 399, 1986 N.C. LEXIS 2422 (1986).

Where the jury did not find defendant was in the grip of sufficient passion to reduce a charge of murder from first-degree to second-degree, then ipso facto it would not have found sufficient passion to find the defendant guilty only of voluntary manslaughter; therefore, the trial court did not err in failing to give the jury an instruction on voluntary manslaughter. State v. Tidwell, 323 N.C. 668, 374 S.E.2d 577, 1989 N.C. LEXIS 4 (1989).

Where defendant’s stabbing of his wife occurred more than eight hours after the alleged incident of provocation, the trial court was not required to charge the jury on a lesser included offense of voluntary manslaughter. State v. Tidwell, 323 N.C. 668, 374 S.E.2d 577, 1989 N.C. LEXIS 4 (1989).

Evidence that defendant believed it necessary to kill victim before victim killed him is not sufficient to justify an instruction as to voluntary manslaughter based on imperfect self-defense. State v. Battle, 322 N.C. 69, 366 S.E.2d 454, 1988 N.C. LEXIS 126, cert. denied, 487 U.S. 1220, 108 S. Ct. 2876, 101 L. Ed. 2d 911, 1988 U.S. LEXIS 2963 (1988).

Involuntary Manslaughter Instruction Required. —

Where the evidence offered by defendant, if believed by the jury, was sufficient to support a verdict of involuntary manslaughter, which was a lesser degree of the crime charged in the bill of indictment, the court erred in excluding it from the list of permissible verdicts. State v. Wrenn, 279 N.C. 676, 185 S.E.2d 129, 1971 N.C. LEXIS 909 (1971).

In a prosecution for first-degree murder in which the defendant was found guilty of voluntary manslaughter, the trial judge erred in failing to instruct the jury on involuntary manslaughter where the defendant’s testimony was, in its entirety, an account of an unintentional killing. State v. Graham, 38 N.C. App. 86, 247 S.E.2d 300, 1978 N.C. App. LEXIS 2088 (1978).

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

Involuntary Manslaughter Instruction Not Required. —

Court’s failure to instruct the jury that involuntary manslaughter was one of their possible verdicts was not error where all of the evidence showed that defendant took a pistol from his back pocket and shot his victim twice after the defendant, a customer, had gotten into a dispute with the victim, a storekeeper, during the course of which the victim ordered defendant out of his store, advanced upon defendant, and hit him with a “billy club,” and where none of the evidence suggested that the two shots fired by defendant were fired involuntarily or by reason of culpable negligence. State v. Credle, 18 N.C. App. 142, 196 S.E.2d 289, 1973 N.C. App. LEXIS 1800 (1973).

When all the evidence tended to show that the accused committed second-degree murder and there was no evidence of guilt of involuntary manslaughter, the court correctly refused to charge on the unsupported lesser offense. The presence of such evidence is the determinative factor. State v. Redfern, 291 N.C. 319, 230 S.E.2d 152, 1976 N.C. LEXIS 977 (1976), overruled, State v. Collins, 334 N.C. 54, 431 S.E.2d 188, 1993 N.C. LEXIS 291 (1993).

Under the evidence, the trial judge in murder trial did not err in failing to instruct on involuntary manslaughter. State v. Wingard, 317 N.C. 590, 346 S.E.2d 638, 1986 N.C. LEXIS 2411 (1986).

In trial for first-degree murder by reason of killing during the perpetration of a felony, evidence was sufficient to support a finding that defendant intended to shoot into residence within the meaning of G.S. 14-34.1, and since defendant presented no evidence of involuntary manslaughter, trial judge did not err in failing to submit involuntary manslaughter as a possible verdict. State v. Clark, 325 N.C. 677, 386 S.E.2d 191, 1989 N.C. LEXIS 599 (1989).

Assuming error in court’s failure to give a charge on involuntary manslaughter, it was harmless in view of the verdict of first-degree murder on the theory of premeditation and deliberation. State v. Hardison, 326 N.C. 646, 392 S.E.2d 364, 1990 N.C. LEXIS 296 (1990).

Where a jury is properly instructed on the elements of first and second degree murder and thereafter returns a verdict of guilty of first degree murder based on premeditation and deliberation, any error in the trial court’s failure to instruct the jury on involuntary manslaughter is harmless even if the evidence would have supported such an instruction. State v. Jones, 339 N.C. 114, 451 S.E.2d 826, 1994 N.C. LEXIS 730 (1994), cert. denied, 515 U.S. 1169, 115 S. Ct. 2634, 132 L. Ed. 2d 873, 1995 U.S. LEXIS 4455 (1995).

Failure to Charge on Voluntary Manslaughter Not Prejudicial. —

Where the court submitted to the jury possible verdicts of first-degree murder, second-degree murder, and not guilty, and the jury convicted the defendants of first-degree murder, even if there was sufficient evidence to support an instruction on voluntary manslaughter, in light of the jury’s verdict, the trial court’s failure to give an instruction was thereon harmless error. State v. Bowie, 340 N.C. 199, 456 S.E.2d 771, 1995 N.C. LEXIS 235 (1995), cert. denied, 516 U.S. 994, 116 S. Ct. 529, 133 L. Ed. 2d 435, 1995 U.S. LEXIS 7931 (1995), writ denied, 363 N.C. 657, 685 S.E.2d 509, 2009 N.C. LEXIS 902 (2009).

Where the trial court instructed the jury that it could find defendant guilty of first-degree murder, based either on the theory of premeditation and deliberation or the theory of felony murder, guilty of second-degree murder, or not guilty, and the jury returned a verdict of first-degree murder on both theories submitted, even if it was error to fail to instruct the jury regarding voluntary manslaughter, such error was harmless. State v. Leach, 340 N.C. 236, 456 S.E.2d 785, 1995 N.C. LEXIS 243 (1995).

Error in Instruction on Manslaughter — Held Harmless. —

Where a jury was properly instructed as to both degrees of murder and yet found defendant guilty of murder in the first degree rather than the second degree, error in the charge on manslaughter was harmless. State v. Freeman, 275 N.C. 662, 170 S.E.2d 461, 1969 N.C. LEXIS 482 (1969); State v. Fowler, 285 N.C. 90, 203 S.E.2d 803, 1974 N.C. LEXIS 925 (1974), vacated in part, 428 U.S. 904, 96 S. Ct. 3212, 49 L. Ed. 2d 1212, 1976 U.S. LEXIS 2264 (1976).

Same — Not Harmless. —

When the jury is instructed that it may find defendant guilty of murder in the first degree, murder in the second degree, manslaughter, or not guilty, and the verdict is guilty of murder in the second degree, an error in the charge on manslaughter will require a new trial. State v. Freeman, 275 N.C. 662, 170 S.E.2d 461, 1969 N.C. LEXIS 482 (1969).

In a prosecution for first-degree murder, a new trial was required where the trial judge twice and at crucial times in the charge to the jury gave an incorrect instruction as to the definition of voluntary manslaughter and related it to the evidence in a manner which would not disclose patent error to the average juror, despite the fact that the trial judge properly defined voluntary manslaughter in another portion of the charge. State v. Cousins, 289 N.C. 540, 223 S.E.2d 338, 1976 N.C. LEXIS 1330 (1976).

Instructions on Involuntary Manslaughter and Second-Degree Murder Not Required. —

Neither involuntary manslaughter nor second-degree murder are applicable when a victim is killed in the course of a felony set forth in G.S. 14-17, so no lesser-included offense instruction on those offenses is required. State v. Ray, 149 N.C. App. 137, 560 S.E.2d 211, 2002 N.C. App. LEXIS 130 (2002), aff'd, 356 N.C. 665, 576 S.E.2d 327, 2003 N.C. LEXIS 33 (2003).

Failure to Submit Lesser Offenses Not Prejudicial Where Defendant Is Convicted of Felony Murder. —

Where defendant was found guilty of murder in the first degree on theory of felony murder and was found not guilty on charge of first-degree murder with premeditation and deliberation, no prejudice resulted from the court’s failure to submit second-degree murder or involuntary manslaughter as possible verdicts. State v. Vines, 317 N.C. 242, 345 S.E.2d 169, 1986 N.C. LEXIS 2786 (1986).

Submission of Lesser Offense as Prejudicial Error. —

If there is evidence of self-defense and no evidence of involuntary manslaughter, it is prejudicial error to submit a charge of involuntary manslaughter in a trial for second-degree murder. State v. Brooks, 46 N.C. App. 833, 266 S.E.2d 3, 1980 N.C. App. LEXIS 2926 (1980).

Submission of Lesser Offense Not Error. —

Even though the evidence established all the elements of first-degree murder, it was not error to submit a charge of second-degree murder to the jury because the trial court submitted only second-degree murder and the jury could only find defendant guilty or not guilty of that offense. State v. Spivey, 102 N.C. App. 640, 404 S.E.2d 23, 1991 N.C. App. LEXIS 486 (1991).

Evidence that defendant and a person he killed were drinking and arguing before the victim was stabbed was sufficient to negate premeditation and malice, and the trial court properly instructed the jury on second-degree murder and voluntary manslaughter as lesser-included offenses of first-degree murder, even though defendant asked the court not to give those instructions. State v. Beck, 163 N.C. App. 469, 594 S.E.2d 94, 2004 N.C. App. LEXIS 405 (2004), aff'd in part and rev'd in part, 359 N.C. 611, 614 S.E.2d 274, 2005 N.C. LEXIS 644 (2005).

Conviction of Lesser Offense Renders Error in Submission of Greater Offense Harmless. —

Where the jury convicts the defendant of murder in the second degree, asserted error in submitting the question of defendant’s guilt of murder in the first degree is rendered harmless. State v. Casper, 256 N.C. 99, 122 S.E.2d 805, 1961 N.C. LEXIS 699 (1961), cert. denied, 376 U.S. 927, 84 S. Ct. 691, 11 L. Ed. 2d 622, 1964 U.S. LEXIS 1942 (1964); State v. Hamilton, 19 N.C. App. 436, 199 S.E.2d 159, 1973 N.C. App. LEXIS 1675, cert. denied, 284 N.C. 256, 200 S.E.2d 656, 1973 N.C. LEXIS 850 (1973).

The submission of a question regarding the guilt of a defendant of murder in the second degree becomes harmless when the jury returns a verdict of manslaughter. State v. Bryant, 282 N.C. 92, 191 S.E.2d 745, 1972 N.C. LEXIS 890 (1972), cert. denied, 410 U.S. 958, 93 S. Ct. 1432, 35 L. Ed. 2d 691, 1973 U.S. LEXIS 3268 (1973), cert. denied, 410 U.S. 987, 93 S. Ct. 1516, 36 L. Ed. 2d 184, 1973 U.S. LEXIS 3067 (1973); State v. Chavis, 30 N.C. App. 75, 226 S.E.2d 389, 1976 N.C. App. LEXIS 2149, cert. denied, 290 N.C. 778, 229 S.E.2d 33, 1976 N.C. LEXIS 1203 (1976).

Defendant’s conviction of voluntary manslaughter would render harmless an error, had error been committed, in submitting to the jury the question of defendant’s guilt of the more serious offense, at least absent any showing that the verdict of guilty of the lesser offense was affected thereby. State v. McLamb, 20 N.C. App. 164, 200 S.E.2d 838, 1973 N.C. App. LEXIS 1500 (1973).

It was not error to refuse to charge the jury on the lesser included offenses of voluntary and involuntary manslaughter, where there was no evidence that defendant was guilty of manslaughter. The State’s evidence indicated only a deliberate, intentional homicide, while defendant’s evidence was that he fled the scene before victim was shot and killed by somebody else. State v. Burge, 100 N.C. App. 671, 397 S.E.2d 760, 1990 N.C. App. LEXIS 1128 (1990).

The elements of violence and taking were so joined in time and circumstances that the trial court did not err by refusing to instruct the jury on the lesser included offenses. State v. Hartman, 344 N.C. 445, 476 S.E.2d 328, 1996 N.C. LEXIS 502 (1996), cert. denied, 520 U.S. 1201, 117 S. Ct. 1562, 137 L. Ed. 2d 708, 1997 U.S. LEXIS 2745 (1997).

Instruction on Second Degree Murder Properly Denied. —

No rational juror could have convicted defendant of second degree murder, and the trial court did not err in denying defendant’s request for such an instruction, because the evidence did not support an alcohol impairment defense, and because any conduct by defendant indicating remorse in the hours after the offense was more than outweighed by his words and actions during and immediately after the killings. Skipper v. Lee, 1999 U.S. Dist. LEXIS 21347 (E.D.N.C. Nov. 29, 1999), aff'd, 238 F.3d 414, 2000 U.S. App. LEXIS 35555 (4th Cir. 2000).

Trial court erred in denying defendant’s motion for a jury instruction on second-degree murder because the State presented evidence of each element of first-degree murder, including premeditation and deliberation, and no evidence negated those elements; defendant’s possible drug intoxication at the time of the killing did not support an inference that defendant did not premeditate and deliberate in his actions, and the State presented evidence regarding: defendant’s conduct and statements before the killing, including threats of harm to the victim. State v. Bedford, 208 N.C. App. 414, 702 S.E.2d 522, 2010 N.C. App. LEXIS 2444 (2010).

Instruction on Lesser-Included Offense Properly Not Given. —

Trial court properly refused to submit a lesser-included offense charge of misdemeanor death by vehicle in defendant’s criminal trial on charges of second degree murder, as the jury chose to convict defendant of second degree murder rather than involuntary manslaughter, such that providing the additional misdemeanor death option would not have made a difference; any such error was harmless. State v. Lloyd, 187 N.C. App. 174, 652 S.E.2d 299, 2007 N.C. App. LEXIS 2253 (2007), cert. denied, 363 N.C. 586, 683 S.E.2d 214, 2009 N.C. LEXIS 823 (2009).

IX.Charge and Indictment

Constitutionality of Short Form Indictment. —

The defendant’s “short-form” first degree murder indictment complied with the state and federal Constitutions although it failed to charge in the indictment the elements of the crime or aggravating circumstances as “facts (other than prior conviction) that increase the maximum penalty for the crime.” State v. Smith, 352 N.C. 531, 532 S.E.2d 773, 2000 N.C. LEXIS 617 (2000), cert. denied, 532 U.S. 949, 121 S. Ct. 1419, 149 L. Ed. 2d 360, 2001 U.S. LEXIS 2605 (2001).

Court declined to find the short-form indictment authorized by G.S. 15-144 unconstitutional in light of Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999) for failing to allege all essential elements of first-degree murder. State v. Parker, 2000 N.C. App. LEXIS 1107 (N.C. Ct. App. Oct. 3, 2000), op. withdrawn, sub. op., 140 N.C. App. 169, 539 S.E.2d 656, 2000 N.C. App. LEXIS 1218 (2000).

Prisoner’s short-form murder indictment provided constitutionally adequate notice because it cited to both the statute authorizing the short-form, pursuant to G.S. 15-144, and to the state’s murder statute, pursuant to G.S. 14-17, thus notifying the prisoner that he needed to defend against a charge of first degree murder on any or all grounds, including murder by torture. Stroud v. Polk, 466 F.3d 291, 2006 U.S. App. LEXIS 26216 (4th Cir. 2006), cert. denied, 551 U.S. 1134, 127 S. Ct. 2978, 168 L. Ed. 2d 709, 2007 U.S. LEXIS 7787 (2007).

Short-Form Indictment Held Sufficient. —

Premeditation and deliberation did not have to be separately alleged in defendant’s short-form indictment which charged him with first-degree murder, and since the death penalty is the prescribed statutory maximum punishment for first-degree murder in North Carolina, no additional facts had to be charged in the indictment to provide defendant with notice that he was charged with first-degree murder and that the maximum penalty to which he could be subjected was death. State v. Braxton, 352 N.C. 158, 531 S.E.2d 428, 2000 N.C. LEXIS 524 (2000), cert. denied, 531 U.S. 1130, 121 S. Ct. 890, 148 L. Ed. 2d 797, 2001 U.S. LEXIS 862 (2001).

Murder indictments that comply with G.S. 15-144 are sufficient to charge first-degree murder on the basis of any theory set forth in G.S. 14-17, which included the charge of felony murder based on attempted rape. State v. Garcia, 358 N.C. 382, 597 S.E.2d 724, 2004 N.C. LEXIS 669 (2004), cert. denied, 543 U.S. 1156, 125 S. Ct. 1301, 161 L. Ed. 2d 122, 2005 U.S. LEXIS 1595 (2005).

Defendant’s conviction for first degree murder, pursuant to a theory of aiding and abetting under G.S. 14-5.2, was affirmed because: (1) the short form indictment properly apprised defendant of the charges against him under G.S. 15-144; and (2) there was no variance with the evidence as the state’s evidence presented supported the indictment for first degree murder. State v. Glynn, 178 N.C. App. 689, 632 S.E.2d 551, 2006 N.C. App. LEXIS 1676 (2006), writ denied, 819 S.E.2d 732, 2018 N.C. LEXIS 984 (2018).

First degree murder indictment that stated in part that defendant “unlawfully, willfully, and feloniously did. .. of malice aforethought kill and murder Rudolph Hughes. This act was in violation of North Carolina General Statute 14-17,” was a valid short form indictment under G.S. 15-144. State v. Hester, 216 N.C. App. 286, 715 S.E.2d 905, 2011 N.C. App. LEXIS 2152 (2011).

Trial court did not err by refusing defendant’s request to require the State of North Carolina to disclose its felony murder theory before the jury was empaneled because, although the State used a short-form indictment to charge defendant with murder, the indictment was sufficient and the State’s legal theories were not factual information subject to inclusion in a bill of particulars. Moreover, defendant failed to establish that defendant could not adequately prepare a defense without knowledge of the State’s legal theory. State v. Hicks, 241 N.C. App. 345, 772 S.E.2d 486, 2015 N.C. App. LEXIS 449 (2015).

Short form indictment for first-degree murder was sufficient to confer jurisdiction upon the courts; premeditation and deliberation did not need to be separately alleged in the indictment. State v. Abbitt, 278 N.C. App. 692, 863 S.E.2d 301, 2021- NCCOA-403, 2021 N.C. App. LEXIS 421 (2021).

Short form indictment for first-degree murder was sufficient to confer jurisdiction upon the courts; premeditation and deliberation did not need to be separately alleged in the indictment. State v. Abbitt, 278 N.C. App. 692, 863 S.E.2d 301, 2021- NCCOA-403, 2021 N.C. App. LEXIS 421 (2021).

Short-Form Indictments Did Not Have to Allege Aggravating Factors. —

Where defendant pled guilty to second-degree murder, the trial court did not err in finding the fact that the victim was eight months pregnant to be an aggravating factor and in sentencing him in the aggravated range; as defendant was indicted using a short-form murder indictment, the aggravating factors were not required to be alleged. State v. Hasty, 181 N.C. App. 144, 639 S.E.2d 94, 2007 N.C. App. LEXIS 33 (2007).

The State is not generally required to elect between legal theories in a murder prosecution prior to trial. State v. Wingard, 317 N.C. 590, 346 S.E.2d 638, 1986 N.C. LEXIS 2411 (1986).

The State is not required at any time to elect a theory upon which it will proceed against defendant on a charge of first degree murder, and it is proper for the trial court to submit the issue of defendant’s guilt of that charge to the jury on each of the theories of first degree murder supported by substantial evidence presented at trial; rather than have the jury render a general verdict if it finds defendant guilty of first degree murder, the better practice is for the trial court to have the jury specify the theory or theories upon which it finds first degree murder to have been established beyond a reasonable doubt. State v. Clark, 325 N.C. 677, 386 S.E.2d 191, 1989 N.C. LEXIS 599 (1989).

Allegation of Means. —

This section does not require an allegation or count to be contained in the bill of indictment as to the means used in committing the murder. The statute only classifies the crime as to degree and punishment in the manner therein set forth. State v. Smith, 223 N.C. 457, 27 S.E.2d 114, 1943 N.C. LEXIS 299 (1943).

An indictment under G.S. 15-144 will support a verdict of murder in the first degree if the jury finds beyond a reasonable doubt that an accused killed with malice and after premeditation and deliberation or in the perpetration or attempted perpetration of any arson, rape, robbery, burglary or other felony the commission of which creates any substantial foreseeable human risk and actually results in loss of life. State v. Bush, 289 N.C. 159, 221 S.E.2d 333, 1976 N.C. LEXIS 1239, vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976).

The murder indictment which complied with G.S. 15-144 was sufficient and did not violate the defendant’s due process and equal protection rights under the United States Constitution. State v. Barnett, 141 N.C. App. 378, 540 S.E.2d 423, 2000 N.C. App. LEXIS 1397 (2000), aff'd, 354 N.C. 350, 554 S.E.2d 644, 2001 N.C. LEXIS 1079 (2001).

Short-form indictment under G.S. 15-144 is sufficient to charge murder in the first degree under a theory of lying in wait, just as it is sufficient to charge murder in the first degree on the theory of felony murder or premeditation and deliberation. State v. Brown, 320 N.C. 179, 358 S.E.2d 1, 1987 N.C. LEXIS 2180, cert. denied, 484 U.S. 970, 108 S. Ct. 467, 98 L. Ed. 2d 406, 1987 U.S. LEXIS 5019 (1987).

Including Verdict of Felony Murder. —

A felony murder may be proven by the State although the bill of indictment charges murder in the statutory language of G.S. 15-144. State v. Lee, 277 N.C. 205, 176 S.E.2d 765, 1970 N.C. LEXIS 566 (1970).

Allegation of Underlying Felony Unnecessary. —

Nothing contained in the Act of 1893 required any alteration or modification of the existing form of indictment for murder. Therefore, it was not necessary that an indictment for murder committed in the attempt to perpetrate larceny should contain a specific allegation of the attempted larceny, such allegation not having been necessary in indictments prior to the said Act of 1893. State v. Covington, 117 N.C. 834, 23 S.E. 337, 1895 N.C. LEXIS 161 (1895).

An indictment must be sufficient in form to allege murder and support a conviction of murder in the first degree under G.S. 15-144. It is not required that the indictment allege that the murder was committed in the perpetration of a robbery or other felony in order that it be sufficient to support a verdict of murder in the first degree. State v. Frazier, 280 N.C. 181, 185 S.E.2d 652, 1972 N.C. LEXIS 1221, vacated, 409 U.S. 1004, 93 S. Ct. 453, 34 L. Ed. 2d 295, 1972 U.S. LEXIS 621 (1972).

Separate Indictment Not Required for Underlying Felony. —

When the State prosecutes a defendant for first-degree murder under the felony-murder rule, the solicitor need not secure a separate indictment for the underlying felony. State v. Williams, 305 N.C. 656, 292 S.E.2d 243, 1982 N.C. LEXIS 1383, cert. denied, 459 U.S. 1056, 103 S. Ct. 474, 74 L. Ed. 2d 622 (1982).

The better practice where the State prosecutes a defendant for first-degree murder on the theory that the homicide was committed in the perpetration of or attempt to perpetrate a felony under this section would be that the district attorney should not secure a separate indictment for the felony. If he does, and there is a conviction of both, the defendant will be sentenced for the murder and the judgment will be arrested for the felony under the merger rule. If the separate felony indictment is treated as surplusage only and the murder charge is submitted to the jury under the felony-murder rule, then obviously the defendant cannot thereafter be tried for the felony. State v. Carey, 288 N.C. 254, 218 S.E.2d 387, 1975 N.C. LEXIS 975 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1209, 1976 U.S. LEXIS 4210 (1976).

Specific Allegation of Underlying Felony Constitutes Election by State. —

By specifically alleging that the offense was committed in the perpetration of rape the State confined itself to that allegation in order to show murder in the first degree. Without a specific allegation, the State could show murder by any of the means embraced in the statute. State v. Davis, 253 N.C. 86, 116 S.E.2d 365, 1960 N.C. LEXIS 474 (1960), cert. denied, 365 U.S. 855, 81 S. Ct. 816, 5 L. Ed. 2d 819, 1961 U.S. LEXIS 1601 (1961).

Election by State of Felony Murder or Premeditation Theory. —

The State is not required to elect prior to the introduction of evidence as to whether it will proceed under the felony-murder rule or on the basis of premeditation and deliberation. State v. Swift, 290 N.C. 383, 226 S.E.2d 652, 1976 N.C. LEXIS 1084 (1976).

Remedy for Alternative Indictment. —

After the return of a verdict of guilty of murder in the first degree, defendant moved in arrest of judgment because the indictment was alternative, indefinite, and uncertain. It was held that although the indictment was alternative, either charge constituted murder in the first degree under this section, informing defendant of the crime charged, and defendant’s remedy, if he desired greater certainty, was by motion for a bill of particulars under G.S. 15-143 (now G.S. 15A-925). State v. Puckett, 211 N.C. 66, 189 S.E. 183, 1937 N.C. LEXIS 1 (1937).

Waiver by State of First-Degree Murder Charge. —

The district attorney during the trial of defendant on a capital offense, and when defendant was voluntarily absent, could properly elect to waive the charge of first-degree murder and proceed with the prosecution of a noncapital offense, second-degree murder. State v. Mulwee, 27 N.C. App. 366, 219 S.E.2d 304, 1975 N.C. App. LEXIS 1852, cert. denied, 288 N.C. 732, 220 S.E.2d 622, 1975 N.C. LEXIS 1052 (1975).

Effect of Announcement That State Would Not Prosecute for First Degree Murder. —

A solicitor’s (district attorney’s) announcement that the State would not prosecute for the capital felony of first degree murder, but for a lesser included offense, did not render incompetent any pertinent evidence bearing on the defendant’s guilt. State v. Ferguson, 280 N.C. 95, 185 S.E.2d 119, 1971 N.C. LEXIS 1096 (1971).

Trial on Second-Degree Charge Not Grounds for Quashing Bill. —

A defendant who was tried on a bill of indictment returned by the grand jury charging him with murder in the first degree could not quash the bill on the ground that, following a preliminary hearing, he was bound over for trial on the lesser charge of second degree murder. State v. Mack, 282 N.C. 334, 193 S.E.2d 71, 1972 N.C. LEXIS 961 (1972).

Indictment held sufficient to charge conspiracy to murder. See State v. Graham, 24 N.C. App. 591, 211 S.E.2d 805, 1975 N.C. App. LEXIS 2449, cert. denied, 287 N.C. 262, 214 S.E.2d 434, 1975 N.C. LEXIS 1107 (1975).

Juvenile Delinquency Petition Properly Alleged Murder. —

Petition alleging that “juvenile was delinquent as defined by former G.S. 7A-517(12) [see now G.S. 7B-101] in that in Durham County and on or about December 30, 1997, the above named juvenile unlawfully, willfully and feloniously did of malice aforethought kill and murder victim” properly alleged first degree murder under G.S. 14-17, satisfied the requirements of former G.S. 7A-560 [see now G.S. 7B-402], and made transfer of case to Superior Court mandatory under former G.S. 7A-608 [see now G.S. 7B-2200]. In re K.R.B., 134 N.C. App. 328, 517 S.E.2d 200, 1999 N.C. App. LEXIS 744 (1999).

A charge of murder in the first degree includes murder in the second degree and manslaughter. State v. Roseboro, 276 N.C. 185, 171 S.E.2d 886, 1970 N.C. LEXIS 664 (1970), rev'd, 403 U.S. 948, 91 S. Ct. 2289, 29 L. Ed. 2d 860 (1971).

Charges of child abuse and child neglect were not merged into a charge of second-degree murder, as the elements of child abuse and neglect are distinct and independent of the elements constituting second-degree murder. State v. Mapp, 45 N.C. App. 574, 264 S.E.2d 348, 1980 N.C. App. LEXIS 2709 (1980).

Presence at Murder Scene. —

The evidence of defendant’s actual or constructive presence at the scene of the murder was sufficiently substantial that a charge on this feature of the case was not necessary. State v. Hunt, 339 N.C. 622, 457 S.E.2d 276, 1994 N.C. LEXIS 717 (1994).

X.Pleas of Guilty and Not Guilty

Defendant’s plea of not guilty puts in issue every essential element of the crime of first-degree murder, and the State must satisfy the jury from the evidence beyond a reasonable doubt that defendant unlawfully killed the deceased with malice and in execution of an actual, specific intent to kill formed after premeditation and deliberation. State v. Propst, 274 N.C. 62, 161 S.E.2d 560, 1968 N.C. LEXIS 734 (1968), limited, State v. Hammonds, 290 N.C. 1, 224 S.E.2d 595, 1976 N.C. LEXIS 1018 (1976).

Defendant’s plea of not guilty puts into issue all of the elements of the charges against him and the burden remains on the State to satisfy the jury beyond a reasonable doubt of all of the elements of the offense charged, including the lesser offense of second-degree murder. State v. Griffin, 288 N.C. 437, 219 S.E.2d 48, 1975 N.C. LEXIS 1009 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3210, 49 L. Ed. 2d 1210, 1976 U.S. LEXIS 4212 (1976).

And Entitles Him to Show Both Self-Defense and Accident. —

The defendant’s plea of not guilty entitled him to present evidence that he acted in self-defense, that the shooting was accidental, or both; election is not required. State v. Todd, 264 N.C. 524, 142 S.E.2d 154, 1965 N.C. LEXIS 1229 (1965).

The fact that the law imposed the threat of the gas chamber did not render plea of guilty to second degree murder involuntary. Petitioner entered his plea to a lesser offense of murder and was not exposed to the defect which prompted the holding in United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138, 1968 U.S. LEXIS 2002 (1968); Pickett v. Henry, 315 F. Supp. 1138, 1970 U.S. Dist. LEXIS 10703 (E.D.N.C. 1970).

There is no rule which precludes a plea of guilty to a crime for which the maximum punishment is life imprisonment. State v. Watkins, 283 N.C. 17, 194 S.E.2d 800, 1973 N.C. LEXIS 894, cert. denied, 414 U.S. 1000, 94 S. Ct. 353, 38 L. Ed. 2d 235, 1973 U.S. LEXIS 1220 (1973).

Premeditation and Deliberation as Aggravating Factors in Sentencing Defendant Who Pleads Guilty to Second-Degree Murder. —

As premeditation and deliberation are not elements of murder in the second degree, if a defendant charged with murder in the first degree pleads guilty to murder in the second degree, the sentencing judge may conclude that for purposes of sentencing premeditation and deliberation have been established by a preponderance of the evidence and therefore may be used as an aggravating factor. State v. Melton, 307 N.C. 370, 298 S.E.2d 673, 1983 N.C. LEXIS 1085 (1983).

Effect of Principal’s Guilty Plea to Voluntary Manslaughter on Charges Against Accessory. —

Principal’s guilty plea to voluntary manslaughter did not determine that the crime of second degree murder had not been committed, thus barring trial of one who aided and abetted. State v. Cassell, 24 N.C. App. 717, 212 S.E.2d 208, 1975 N.C. App. LEXIS 2483, cert. denied, 287 N.C. 261, 214 S.E.2d 433, 1975 N.C. LEXIS 1103 (1975).

Defendant’s Consent to Plea. —

Just prior to closing arguments defendant consented on the record to his attorney’s decision to concede guilt to second-degree murder or voluntary manslaughter. As per se error is based on a defendant not consenting to his counsel’s admission of his guilt, defendant’s consent prior to the closing arguments amounted to ratification of defense counsel’s earlier statement and cured any possible error. State v. Basden, 339 N.C. 288, 451 S.E.2d 238, 1994 N.C. LEXIS 725 (1994), cert. denied, 515 U.S. 1152, 115 S. Ct. 2599, 132 L. Ed. 2d 845, 1995 U.S. LEXIS 4241 (1995).

Guilty Plea Voluntary. —

Although the inmate claimed that his guilty pleas were not voluntary and intelligent, in violation of his Sixth and Fourteenth Amendment rights, as he did not know he was admitting guilt of premeditated and deliberate murder, the inmate voluntarily pled with full knowledge of the charges against him and the consequences of his pleas and since the State possessed overwhelming evidence that the inmate acted with premeditation and deliberation, his pleas made premeditation and deliberation an admitted fact. The inmate also argued he was unaware of the consequences of his plea, as he did not know his admission of guilt would permit the State to submit his underlying felonies as aggravating factors during his sentencing, but this argument was rejected because, even if true, it did not entitle the inmate to relief. Meyer v. Branker, 506 F.3d 358, 2007 U.S. App. LEXIS 26335 (4th Cir. 2007), cert. denied, 554 U.S. 925, 128 S. Ct. 2975, 171 L. Ed. 2d 899, 2008 U.S. LEXIS 5074 (2008).

XI.Verdict

Degree of Murder Must Be Determined. —

Under this section, distinguishing murder into two degrees, the jury, on conviction, must determine in their verdict whether the crime is murder in the first or second degree. State v. Gadberry, 117 N.C. 811, 23 S.E. 477, 1895 N.C. LEXIS 160 (1895); State v. Truesdale, 125 N.C. 696, 34 S.E. 646, 1899 N.C. LEXIS 289 (1899).

Requisites of First-Degree Murder Verdict. —

For a conviction of murder in the first degree under this section and G.S. 15-172, the jury must find specifically under the evidence that this degree of crime has been committed by the defendant, and the verdict must be received in open court in the presence of the presiding judge under constitutional mandate, N.C. Const., Art. I, § 13, 17, which right may not be waived. State v. Bazemore, 193 N.C. 336, 137 S.E. 172, 1927 N.C. LEXIS 338 (1927).

Sufficient Evidence to Support Jury Verdict. —

Defendant’s convictions for first-degree murder and conspiracy to commit first-degree murder were affirmed because no improper promises were made to defendant in order to induce an involuntary confession and the medical evidence, along with defendant’s confession, were sufficient to support the jury’s verdict. State v. Shelly, 181 N.C. App. 196, 638 S.E.2d 516, 2007 N.C. App. LEXIS 71 (2007).

Verdict of Second-Degree Murder in Prosecution for First-Degree Murder. —

In a case of first-degree murder, committed after premeditation and deliberation, a verdict of second-degree murder is permissible if the jury should fail to find premeditation and deliberation. State v. Hill, 276 N.C. 1, 170 S.E.2d 885, 1969 N.C. LEXIS 335 (1969), rev'd, 403 U.S. 948, 91 S. Ct. 2287, 29 L. Ed. 2d 860 (1971).

Manslaughter Is Necessarily Disproved on Verdict of First-Degree Murder. —

In proving the elements of first-degree murder beyond any reasonable doubt in the jurors’ minds, the State necessarily disproved manslaughter beyond a reasonable doubt. State v. Bush, 307 N.C. 152, 297 S.E.2d 563, 1982 N.C. LEXIS 1670 (1982), limited, State v. Richardson, 341 N.C. 658, 462 S.E.2d 492, 1995 N.C. LEXIS 532 (1995).

As Is Heat of Passion. —

When the jury finds beyond a reasonable doubt that the defendant killed his victim with premeditation, they also necessarily find beyond a reasonable doubt that the State has shown that the defendant did not act in the heat of passion. State v. Bush, 307 N.C. 152, 297 S.E.2d 563, 1982 N.C. LEXIS 1670 (1982), limited, State v. Richardson, 341 N.C. 658, 462 S.E.2d 492, 1995 N.C. LEXIS 532 (1995).

Defendant was not prejudiced by the court’s submission to the jury of the charge of first degree murder on the theory of premeditation and deliberation where the jury found defendant guilty of first-degree murder only on the theory of felony murder. State v. Price, 344 N.C. 583, 476 S.E.2d 317, 1996 N.C. LEXIS 498 (1996).

XII.Capital Punishment

Editor’s Note. —

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

Legislature May Constitutionally Impose Death as Punishment. —

Just as the legislature acts within its constitutional power in defining first-degree murder to include felony murder, it is also within its constitutional power to determine that first-degree murder, including felony murder, may be punished by death, provided that the death penalty statute itself is constitutional. State v. Williams, 305 N.C. 656, 292 S.E.2d 243, 1982 N.C. LEXIS 1383, cert. denied, 459 U.S. 1056, 103 S. Ct. 474, 74 L. Ed. 2d 622 (1982).

The imposition of the death penalty upon a conviction of murder is expressly authorized by N.C. Const., Art. XI, § 2. State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241, 1969 N.C. LEXIS 393 (1969), rev'd, 403 U.S. 948, 91 S. Ct. 2283, 29 L. Ed. 2d 859 (1971).

Judgment and sentence of death upon conviction of first-degree murder is not unconstitutional. State v. Griffin, 288 N.C. 437, 219 S.E.2d 48, 1975 N.C. LEXIS 1009 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3210, 49 L. Ed. 2d 1210, 1976 U.S. LEXIS 4212 (1976); State v. Bush, 289 N.C. 159, 221 S.E.2d 333, 1976 N.C. LEXIS 1239, vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976).

Imposition of death penalty for first-degree murder is not cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments to the United States Constitution.State v. Spaulding, 288 N.C. 397, 219 S.E.2d 178, 1975 N.C. LEXIS 1007 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3210, 49 L. Ed. 2d 1210, 1976 U.S. LEXIS 4213 (1976); State v. Carter, 289 N.C. 35, 220 S.E.2d 313, 1975 N.C. LEXIS 872 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3212, 49 L. Ed. 2d 1211, 1976 U.S. LEXIS 4218 (1976).

Retroactive Applicability of Invalidity of Unanimity Requirement. —

The 1990 case of McKoy v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990), which invalidated the unanimity requirement of North Carolina’s capital sentencing scheme, should be applied retroactively to capital cases which became final before McKoy was decided. State v. Zuniga, 336 N.C. 508, 444 S.E.2d 443, 1994 N.C. LEXIS 297 (1994).

Effect of Furman v. Georgia. —

Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), holds that the Eighth and Fourteenth Amendments of the U.S. Constitution will no longer tolerate the infliction of a death sentence where either the jury or the judge is permitted to impose that sentence as a matter of discretion. State v. Rankin, 282 N.C. 572, 193 S.E.2d 740, 1973 N.C. LEXIS 1110 (1973); State v. Waddell, 282 N.C. 431, 194 S.E.2d 19, 1973 N.C. LEXIS 1100 (1973); State v. Watkins, 283 N.C. 17, 194 S.E.2d 800, 1973 N.C. LEXIS 894, cert. denied, 414 U.S. 1000, 94 S. Ct. 353, 38 L. Ed. 2d 235, 1973 U.S. LEXIS 1220 (1973); State v. Blackmon, 284 N.C. 1, 199 S.E.2d 431, 1973 N.C. LEXIS 772 (1973).

Where the Supreme Court of the United States in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), held that the imposition of the death penalty, under certain state statutes and in the application thereof, was unconstitutional, that decision did not affect the conviction but only the death sentence. State v. Wright, 282 N.C. 364, 192 S.E.2d 818, 1972 N.C. LEXIS 964 (1972); State v. Duncan, 282 N.C. 412, 193 S.E.2d 65, 1972 N.C. LEXIS 970 (1972).

Former Mandatory Death Penalty Provision of Section Held Unconstitutional. —

North Carolina’s mandatory death penalty statute for first-degree murder contained in this section as amended in 1973 and before its amendment in 1977 departed markedly from contemporary standards respecting the imposition of the punishment of death and could not be applied consistently with the Eighth and Fourteenth Amendments’ requirement that the State’s power to punish be exercised within the limits of civilized standards, since it provided no objective standards for the jury and failed to allow for consideration of the particular character and record of each defendant with a view toward mitigation of the offense. Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944, 1976 U.S. LEXIS 85 (1976).

Same — The Effect of Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976), was to return the construction of this statute to its post-Furman (Furman v. Georgia, 1972 U.S. LEXIS 169, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972)), pre-Waddell (State v. Waddell, 282 N.C. 431, 194 S.E.2d 19, 1973 N.C. LEXIS 1100 (1973)) status. Carey v. Garrison, 452 F. Supp. 485, 1978 U.S. Dist. LEXIS 17246 (W.D.N.C. 1978) (State v. Waddell having held that provisions giving the jury discretion to impose sentences of life imprisonment in capital cases were unconstitutional, but were severable, with the result that the death penalty would become mandatory in such cases) .

Notice of Penalty Is Not Constitutionally Required. —

The United States Constitution does not require that notice be given that the first-degree murder charge carried with it the possibility that defendant might receive the death penalty upon conviction. State v. Woods, 307 N.C. 213, 297 S.E.2d 574, 1982 N.C. LEXIS 1673 (1982).

Retention, etc., of Death Penalty Is Legislative Question. —

The matter of retention, modification or abolition of the death penalty is a question for the lawmaking authorities rather than the courts. State v. Waddell, 282 N.C. 431, 194 S.E.2d 19, 1973 N.C. LEXIS 1100 (1973).

Standing to Challenge Constitutionality. —

Furman v. Georgia is without significance when the jury in a murder trial returns a verdict recommending life imprisonment. In that situation the defendant has no standing to raise the constitutionality of the death penalty or of a statute because it provides for that punishment. State v. Wright, 282 N.C. 364, 192 S.E.2d 818, 1972 N.C. LEXIS 964 (1972); State v. Duncan, 282 N.C. 412, 193 S.E.2d 65, 1972 N.C. LEXIS 970 (1972); State v. Rankin, 282 N.C. 572, 193 S.E.2d 740, 1973 N.C. LEXIS 1110 (1973).

A defendant may not be subject to a potential death sentence absent a showing of actual intent to commit one or more of the underlying felonies delineated or described in this statute. State v. Jones, 353 N.C. 159, 538 S.E.2d 917, 2000 N.C. LEXIS 894 (2000).

Cases in Which Defendants Received Death Sentence Remanded Pursuant to Mandate of United States Supreme Court. —

Pursuant to mandates of the Supreme Court of the United States in Hill v. North Carolina, 403 U.S. 948, 91 S. Ct. 2287, 29 L. Ed. 2d 860 (1971); Atkinson v. North Carolina, 403 U.S. 948, 91 S. Ct. 2283, 29 L. Ed. 2d 859 (1971); Williams v. North Carolina, 403 U.S. 948, 91 S. Ct. 2290, 29 L. Ed. 860 (1971); Sanders v. North Carolina, 403 U.S. 948, 91 S. Ct. 2290, 29 L. Ed. 2d 860 (1971); and Roseboro v. North Carolina, 403 U.S. 948, 91 S. Ct. 2289, 29 L. Ed. 2d 860 (1971), first-degree murder cases in which the defendants received the death sentence were remanded to the superior court with direction that the defendants be sentenced to life imprisonment in the State’s prison. State v. Hill, 279 N.C. 371, 183 S.E.2d 97, 1971 N.C. LEXIS 804 (1971); State v. Atkinson, 279 N.C. 386, 183 S.E.2d 106, 1971 N.C. LEXIS 806 (1971); State v. Williams, 279 N.C. 388, 183 S.E.2d 106, 1971 N.C. LEXIS 807 (1971); State v. Sanders, 279 N.C. 389, 183 S.E.2d 107, 1971 N.C. LEXIS 808 (1971); State v. Roseboro, 279 N.C. 391, 183 S.E.2d 108, 1971 N.C. LEXIS 809 (1971).

Resentencing Convicted Murderer Not Ex Post Facto Application of Law. —

Where an individual was convicted of murder and sentenced to death, which sentence was later invalidated, resentencing the convicted murderer to life imprisonment did not violate the due process clause as an ex post facto application of the law, especially since before the time of the convicted murderer’s June 19, 1973, offense, North Carolina had given notice in the 1969 version of this section that it intended to exact the maximum possible penalty for first-degree murder. Carey v. Garrison, 452 F. Supp. 485, 1978 U.S. Dist. LEXIS 17246 (W.D.N.C. 1978).

When Murder Considered Committed for Purposes of Ex Post Facto Punishment Prohibition. —

For purposes of the prohibition against ex post facto legislation, a murder was committed when the murderous acts were performed, and not when death resulted. Therefore, where defendant administered poison to her husband on three occasions, all before June 1, 1977, at a time when the maximum punishment for first-degree murder was life imprisonment, imposition of the death sentence under G.S. 15A-2002 would violate the prohibition against imposition of an ex post facto punishment. State v. Detter, 298 N.C. 604, 260 S.E.2d 567, 1979 N.C. LEXIS 1408 (1979).

Prosecutor’s Argument. —

Where the prosecuting attorney, while making a vigorous plea for the imposition of the death penalty, did not depart from or distort the record, and there was nothing in his argument which would tend to mislead the jury or deprive the defendant of a fair trial, the argument was proper. State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572, 1971 N.C. LEXIS 749 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761, 1972 U.S. LEXIS 1952 (1972).

Where the prosecuting attorney, in his argument, traveled outside the record, used language offensive in its nature, and in support of his plea for the death penalty, injected into his argument his own account of his record as a solicitor in other cases, for the purpose of persuading the jury that he did not ask the death penalty where it was not deserved, his argument was improper. State v. Smith, 279 N.C. 163, 181 S.E.2d 458, 1971 N.C. LEXIS 762 (1971).

Argument not improper where the prosecutor argued the only way the jury could prevent defendant from killing again was to give him the death penalty. State v. Basden, 339 N.C. 288, 451 S.E.2d 238, 1994 N.C. LEXIS 725 (1994), cert. denied, 515 U.S. 1152, 115 S. Ct. 2599, 132 L. Ed. 2d 845, 1995 U.S. LEXIS 4241 (1995).

The prosecutor’s argument that the death penalty would prevent the defendant from killing again was a proper argument and his argument that there had never been a more appropriate case for the death penalty and that the defendant had worked for and earned a sentence of death, were reasonable arguments in light of the evidence of the defendant’s pattern of violent and deadly behavior. State v. Jones, 339 N.C. 114, 451 S.E.2d 826, 1994 N.C. LEXIS 730 (1994), cert. denied, 515 U.S. 1169, 115 S. Ct. 2634, 132 L. Ed. 2d 873, 1995 U.S. LEXIS 4455 (1995).

Although the State Supreme Court cautioned counsel against using Biblical arguments when arguing to the jury that a defendant deserved the death penalty, the court held that the prosecutor’s use of Biblical references during an argument to the jury in defendant’s case were not so grossly improper that the trial court erred by failing to intervene ex mero motu, and the court upheld defendant’s convictions for first-degree murder and robbery with a firearm based on evidence which showed that defendant shot a victim twice in the face with a shotgun and took the victim’s car and other personal property. State v. Haselden, 357 N.C. 1, 577 S.E.2d 594, 2003 N.C. LEXIS 318, cert. denied, 540 U.S. 988, 124 S. Ct. 475, 157 L. Ed. 2d 382, 2003 U.S. LEXIS 8097 (2003).

Sentence Not Disproportionate. —

Where defendant was convicted of three first-degree murders and the record established a cold-blooded, calculated course of conduct on the part of defendant which amounted to a wanton disregard for the value of human life, the two death sentences were not excessive or disproportionate. State v. Robinson, 339 N.C. 263, 451 S.E.2d 196, 1994 N.C. LEXIS 724 (1994), cert. denied, 515 U.S. 1135, 115 S. Ct. 2565, 132 L. Ed. 2d 818, 1995 U.S. LEXIS 4012 (1995), writ denied, 342 N.C. 417, 465 S.E.2d 534, 1995 N.C. LEXIS 760 (1995), writ denied, 348 N.C. 76, 505 S.E.2d 884, 1998 N.C. LEXIS 201 (1998), writ denied, 354 N.C. 73, 553 S.E.2d 210, 2001 N.C. LEXIS 865 (2001).

Trial court’s judgment sentencing defendant to death was justified by evidence which showed that defendant and an accomplice forced their way into the victim’s house, and that the victim died after her throat was cut, she was stabbed multiple times, and she was shot twice in the head. State v. Watts, 357 N.C. 366, 584 S.E.2d 740, 2003 N.C. LEXIS 827 (2003), cert. denied, 541 U.S. 944, 124 S. Ct. 1673, 158 L. Ed. 2d 370, 2004 U.S. LEXIS 2157 (2004).

Capital sentence for a death resulting from the attempted sale of crack cocaine was affirmed because the sentence was not disproportionate. State v. Squires, 357 N.C. 529, 591 S.E.2d 837, 2003 N.C. LEXIS 1265 (2003), cert. denied, 541 U.S. 1088, 124 S. Ct. 2818, 159 L. Ed. 2d 252, 2004 U.S. LEXIS 4087 (2004).

Several factors supported the determination that imposition of the death penalty was neither excessive nor disproportionate where the evidence indicated that defendant began planning to kill the victim as soon as their telephone conversation ended the day before the murder; that defendant urged the victim to walk into the field for the ostensible purpose of setting up targets, then shot him without provocation; that the victim asked defendant not to shoot him again; that defendant fired three spaced shots into the victim; that the third shot was fired into the victim’s head as the victim lay helpless watching defendant; that defendant took the victim’s keys from his body after shooting him; and that defendant felt no remorse. State v. Hurst, 360 N.C. 181, 624 S.E.2d 309, 2006 N.C. LEXIS 7 (2006), cert. denied, 549 U.S. 875, 127 S. Ct. 186, 166 L. Ed. 2d 131, 2006 U.S. LEXIS 7059 (2006), cert. denied, 364 N.C. 244, 698 S.E.2d 664, 2010 N.C. LEXIS 422 (2010).

The State was entitled to present witnesses in the capital sentencing proceeding to prove the circumstances of prior convictions. State v. Harden, 344 N.C. 542, 476 S.E.2d 658, 1996 N.C. LEXIS 500 (1996), cert. denied, 520 U.S. 1147, 117 S. Ct. 1321, 137 L. Ed. 2d 483, 1997 U.S. LEXIS 2017 (1997).

Demonstration of Murder for Personal Gain Not Required. —

In defendant’s trial on two counts of first-degree murder, the trial court erred by instructing jurors that they had to find defendant committed murder for personal gain, as an aggravating factor for purposes of determining if defendant should be sentenced to death, if they found that he was committing robbery with a dangerous weapon at the time a person who lived in the house and one of defendant’s accomplices were shot. State v. Jones, 357 N.C. 409, 584 S.E.2d 751, 2003 N.C. LEXIS 828 (2003).

Use of Prior Murder for Sentencing Aggravator Not Double Jeopardy. —

Trial court’s denial of defendant’s pretrial motion to dismiss two murder charges against him in violation of G.S. 14-17, based on double jeopardy pursuant to G.S. 15A-954, was proper because the fact that in a prior murder case against defendant, the State had introduced evidence of the two murders in support of the aggravating circumstance described in G.S. 15A-2000(e)(11) was not tantamount to the State putting defendant on trial for those crimes; the jury’s consideration of defendant’s “other crimes of violence” in making its penalty recommendation on one murder was not logically equivalent to defendant receiving multiple punishment for the same crime. State v. Carter, 357 N.C. 345, 584 S.E.2d 792, 2003 N.C. LEXIS 832 (2003), cert. denied, 541 U.S. 943, 124 S. Ct. 1670, 158 L. Ed. 2d 368, 2004 U.S. LEXIS 2144 (2004).

XIII.Appeal

Failure to Assign Error Precludes Review of Instructions. —

Where the defendant in a murder prosecution did not assign as error on direct appeal the failure of the trial judge in his instructions to place the burden of proving the absence of heat of passion or the absence of self-defense on the State, he waived his right to complain about such errors in post-conviction review. State v. Watson, 37 N.C. App. 399, 246 S.E.2d 25, 1978 N.C. App. LEXIS 2754 (1978).

Where the defendant in a prosecution for second-degree murder failed to raise at trial, on direct appeal or in a subsequent petition for post-conviction relief, the questions of the trial judge’s alleged error in instructing the jury that the burden was on the defendant to disprove malice to reduce the killing to voluntary manslaughter and to prove that he killed in self-defense, the defendant could not seek collateral review of the alleged error. State v. Locklear, 39 N.C. App. 671, 251 S.E.2d 638, 1979 N.C. App. LEXIS 2533, cert. denied, 296 N.C. 739, 254 S.E.2d 180, 1979 N.C. LEXIS 1290 (1979).

Failure to Preserve Evidence for Review. —

The trial court erred by not allowing the defendant to make an offer of proof and depriving her from preserving the proposed witness testimony in the record for the purpose of appellate review. State v. Brown, 116 N.C. App. 445, 448 S.E.2d 131, 1994 N.C. App. LEXIS 1034 (1994).

Error in Allowing New Trial. —

In a prosecution for murder the trial court erred in allowing the defendant a new trial on the basis that the retroactivity of the Mullaney rule, see Hankerson v. North Carolina, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 306 (1977), was applicable in his case, where the defendant appellant did not object or assign as error on appeal the instructions of the trial court to the jury requiring the defendant to prove the absence of malice or that he acted in self-defense in order to reduce the alleged crime of murder in the second degree to voluntary manslaughter. State v. Watson, 37 N.C. App. 399, 246 S.E.2d 25, 1978 N.C. App. LEXIS 2754 (1978).

Finding as to Mental Capacity Held Conclusive on Appeal. —

Where the jury, by its verdict, established that the defendant, at the time of the alleged offenses, had the mental capacity to know right from wrong with reference to these acts, that finding, supported as it was by ample evidence, was conclusive on appeal. State v. Shepherd, 288 N.C. 346, 218 S.E.2d 176, 1975 N.C. LEXIS 982 (1975).

Review of State’s Argument in Capital Case. —

Despite trial counsel’s laxity, the State’s argument in capital cases is subject to limited appellate review for the existence of gross improprieties which make it plain that the trial court abused its discretion in failing to correct the prejudicial matters ex mero motu. State v. Pinch, 306 N.C. 1, 292 S.E.2d 203, 1982 N.C. LEXIS 1386 (1982), cert. denied, 459 U.S. 1056, 103 S. Ct. 474, 74 L. Ed. 2d 622 (1982), writ denied, 366 S.E.2d 868, 1988 N.C. LEXIS 183 (1988), overruled, State v. Benson, 323 N.C. 318, 372 S.E.2d 517, 1988 N.C. LEXIS 612 (1988), overruled, State v. Robinson, 336 N.C. 78, 443 S.E.2d 306, 1994 N.C. LEXIS 229 (1994), overruled, State v. Rouse, 339 N.C. 59, 451 S.E.2d 543, 1994 N.C. LEXIS 719 (1994); State v. Robinson, 336 N.C. 78, 443 S.E.2d 306, 1994 N.C. LEXIS 229 (1994), cert. denied, 513 U.S. 1089, 115 S. Ct. 750, 130 L. Ed. 2d 650, 1995 U.S. LEXIS 276 (1995); State v. Rouse, 339 N.C. 59, 451 S.E.2d 543, 1994 N.C. LEXIS 719 (1994), cert. denied, 516 U.S. 832, 116 S. Ct. 107, 133 L. Ed. 2d 60, 1995 U.S. LEXIS 5654 (1995), overruled in part, State v. Hurst, 360 N.C. 181, 624 S.E.2d 309, 2006 N.C. LEXIS 7 (2006).

Ineffective Assistance of Counsel Claims. —

Where a State prisoner, who was convicted of first-degree murder, in violation of G.S. 14-17, argued that his attorneys were ineffective because they failed to assert a diminished capacity defense, the prisoner was not entitled to federal habeas corpus relief because (1) the prisoner directed the attorneys to pursue the theory that another individual committed the murder; (2) the attorneys’ strategic decision to argue that the prisoner did not commit the murder was objectively reasonable; (3) the fact that the attorneys met with the prisoner only five times before trial did not establish their ineffectiveness; and (4) the State court reasonably held that asserting a diminished capacity defense would not have led to a different outcome. Campbell v. Polk, 447 F.3d 270, 2006 U.S. App. LEXIS 11591 (4th Cir.), cert. denied, 549 U.S. 1098, 127 S. Ct. 834, 166 L. Ed. 2d 669, 2006 U.S. LEXIS 9512 (2006).

Defendant’s first degree murder conviction for stabbing his wife to death was affirmed because defendant failed to show ineffective assistance of counsel as he did not meet his burden of showing a reasonable probability that, but for defense counsel’s failure to raise an issue at trial, the result of his proceedings would have been different. State v. Nguyen, 178 N.C. App. 447, 632 S.E.2d 197, 2006 N.C. App. LEXIS 1571 (2006).

Where a prosecutor, during cross-examination in a second-degree murder trial, questioned defendant on the reason for omitting certain important facts from a voluntary discussion with a deputy, counsel’s failure to object did not constitute ineffective assistance. State v. Ezzell, 182 N.C. App. 417, 642 S.E.2d 274, 2007 N.C. App. LEXIS 695 (2007).

I.General Consideration

Burden of Proof. —

When the State undertakes a prosecution for unlawful homicide, it assumes the burden of producing evidence sufficient to prove that the deceased died as the result of a criminal act committed by the defendant. State v. Jones, 15 N.C. App. 537, 190 S.E.2d 278, 1972 N.C. App. LEXIS 1960 (1972).

In a prosecution for manslaughter, the State must produce evidence sufficient to establish beyond a reasonable doubt that the death proximately resulted from defendants’ unlawful acts. State v. Cummings, 46 N.C. App. 680, 265 S.E.2d 923, 1980 N.C. App. LEXIS 2915, aff'd, 301 N.C. 374, 271 S.E.2d 277, 1980 N.C. LEXIS 1172 (1980); State v. Brown, 80 N.C. App. 307, 342 S.E.2d 42, 1986 N.C. App. LEXIS 2171 (1986).

The act of the accused need not be the immediate cause of death; he is legally accountable if the direct cause is the natural result of the criminal act. State v. Cummings, 301 N.C. 374, 271 S.E.2d 277, 1980 N.C. LEXIS 1172 (1980).

Nor the sole proximate cause of the death, nor the last act in sequence of time. There may be more than one proximate cause of the death in question. It is enough if defendants’ unlawful acts join and concur with other causes in producing the result. State v. Cummings, 46 N.C. App. 680, 265 S.E.2d 923, 1980 N.C. App. LEXIS 2915, aff'd, 301 N.C. 374, 271 S.E.2d 277, 1980 N.C. LEXIS 1172 (1980); State v. Brown, 80 N.C. App. 307, 342 S.E.2d 42, 1986 N.C. App. LEXIS 2171 (1986).

Use of Pistol as Aggravating Factor. —

Where defendant was convicted of involuntary manslaughter based on evidence that he had shot and killed victim outside nightclub, defendant’s possession and use of a pistol could not be used as a factor in aggravation of the crime of voluntary manslaughter. However, the trial court could properly have found as a nonstatutory aggravating factor that defendant returned to the nightclub carrying a loaded pistol after an earlier encounter with the owner. State v. McKinney, 88 N.C. App. 659, 364 S.E.2d 743, 1988 N.C. App. LEXIS 215 (1988).

Use As Prior Conviction For Violent Habitual Felon Charge. —

There was substantial evidence that defendant had two prior felony convictions because, even though one of the judgments listed the convicted person’s race as black while defendant was white, G.S. 14-7.10 created the requirements for a statutory prima facie case, and since the prosecution met that standard, any discrepancies in the details contained in the judgments were for the jury to consider in weighing the evidence; the trial court also declined to dismiss the charge on grounds that one of the convictions did not qualify for use as an underlying felony, as voluntary manslaughter was a superseded offense pursuant to G.S. 14-7.7(b)(2) where the offense had been upgraded by the General Assembly to a class D felony. State v. Wolfe, 157 N.C. App. 22, 577 S.E.2d 655, 2003 N.C. App. LEXIS 373 (2003).

Reversal for Improper Argument. —

Conviction was reversed and the defendant was granted a new trial where the prosecutor improperly argued that “there’s a lot of public sentiment at this point against driving and drinking, causing accidents on the highway.” The argument went outside the record and appealed to the jury to convict the defendant because impaired drivers had caused other accidents; such statements could only be construed as telling the jury that the citizens of the community sought and demanded conviction and punishment of the defendant. State v. Scott, 314 N.C. 309, 333 S.E.2d 296, 1985 N.C. LEXIS 1789 (1985).

Trial court erred in failing to submit aggravating factors to the jury before imposing an aggravated sentences on defendant for his two manslaughter convictions; as defendant was entitled to a jury trial on the charge, any aggravating factor had to be submitted to the jury before an aggravated sentence could be imposed. State v. Speight, 359 N.C. 602, 614 S.E.2d 262, 2005 N.C. LEXIS 645 (2005), vacated, 548 U.S. 923, 126 S. Ct. 2977, 165 L. Ed. 2d 983, 2006 U.S. LEXIS 5189 (2006) (as to Blakely error being subject to harmless review).

II.Manslaughter

A.In General

Definitions. —

Manslaughter is the unlawful killing of a human being without malice, without premeditation and deliberation, and without the intention to kill or to inflict serious bodily injury. State v. Kea, 256 N.C. 492, 124 S.E.2d 174, 1962 N.C. LEXIS 475 (1962); State v. Benge, 272 N.C. 261, 158 S.E.2d 70, 1967 N.C. LEXIS 1014 (1967); State v. Roseboro, 276 N.C. 185, 171 S.E.2d 886, 1970 N.C. LEXIS 664 (1970), rev'd, 403 U.S. 948, 91 S. Ct. 2289, 29 L. Ed. 2d 860 (1971); State v. Richardson, 14 N.C. App. 86, 187 S.E.2d 435, 1972 N.C. App. LEXIS 2042 (1972), cert. denied, 284 N.C. 258, 200 S.E.2d 658, 1973 N.C. LEXIS 857 (1973); State v. Bunn, 283 N.C. 444, 196 S.E.2d 777, 1973 N.C. LEXIS 992 (1973); State v. Spencer, 27 N.C. App. 301, 219 S.E.2d 231, 1975 N.C. App. LEXIS 1829 (1975); State v. Cousins, 289 N.C. 540, 223 S.E.2d 338, 1976 N.C. LEXIS 1330 (1976); State v. Jones, 291 N.C. 681, 231 S.E.2d 252, 1977 N.C. LEXIS 1233 (1977); State v. Stewart, 292 N.C. 219, 232 S.E.2d 443, 1977 N.C. LEXIS 1055 (1977); State v. Alston, 295 N.C. 629, 247 S.E.2d 898, 1978 N.C. LEXIS 1076 (1978); State v. Marshall, 304 N.C. 167, 282 S.E.2d 422, 1981 N.C. LEXIS 1327 (1981); State v. Best, 59 N.C. App. 96, 295 S.E.2d 774, 1982 N.C. App. LEXIS 2862 (1982).

Intentional or Unintentional Killing. —

Voluntary manslaughter is the intentional killing of a person without malice, while involuntary manslaughter is the unintentional killing of a person without malice. Stout v. Grain Dealers Mut. Ins. Co., 307 F.2d 521, 1962 U.S. App. LEXIS 4297 (4th Cir. 1962); State v. Fox, 18 N.C. App. 523, 197 S.E.2d 265, 1973 N.C. App. LEXIS 1927, cert. denied, 283 N.C. 755, 198 S.E.2d 725, 1973 N.C. LEXIS 1083 (1973).

Adequate Provocation. —

A killing is without malice if the defendant acts in the heat of passion upon adequate provocation so that the defendant’s state of mind overcomes his ability to reason and to control his actions. The act of provocation must be such, however, that it would naturally and reasonably arouse the passions of an ordinary man beyond his power of control. State v. Mathis, 105 N.C. App. 402, 413 S.E.2d 301, 1992 N.C. App. LEXIS 230 (1992).

Killing Must Be Unintentional. —

Where defendant was convicted of involuntary manslaughter as a lesser included offense of second degree murder, and the evidence showed without contradiction that defendant intentionally killed at close range, the judgment would be vacated and defendant discharged, since conviction of involuntary manslaughter required that the killing not be intentional. State v. Benge, 87 N.C. App. 282, 360 S.E.2d 701, 1987 N.C. App. LEXIS 3115 (1987).

Manslaughter is a lesser included offense of murder in the second degree. State v. Holcomb, 295 N.C. 608, 247 S.E.2d 888, 1978 N.C. LEXIS 1073 (1978); State v. Owens, 65 N.C. App. 107, 308 S.E.2d 494, 1983 N.C. App. LEXIS 3389 (1983).

Distinguished by Presence or Absence of Malice. —

The difference between second-degree murder and manslaughter is that malice, express or implied, is present in the former and not in the latter. State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978).

It is the absence of malice, premeditation, deliberation, intent to kill, and intent to inflict serious bodily injury that separates involuntary manslaughter from murder and voluntary manslaughter. State v. Greene, 314 N.C. 649, 336 S.E.2d 87, 1985 N.C. LEXIS 2094 (1985).

Proximate cause is an element of second-degree murder and manslaughter. State v. Sherrill, 28 N.C. App. 311, 220 S.E.2d 822, 1976 N.C. App. LEXIS 2672 (1976).

But specific intent to kill is not. —

The specific intent to kill is not an essential element of either second degree murder or involuntary manslaughter; however, neither crime exists in the absence of some intentional act in the chain of causation leading to death. State v. Allen, 77 N.C. App. 142, 334 S.E.2d 410, 1985 N.C. App. LEXIS 4056 (1985).

Involuntary homicide is also “manslaughter.” United Servs. Auto. Ass'n v. Wharton, 237 F. Supp. 255, 1965 U.S. Dist. LEXIS 6458 (W.D.N.C. 1965).

When a death is caused by one who was driving under the influence of alcohol, only two elements must exist for the successful prosecution of manslaughter: A willful violation of G.S. 20-138 (now G.S. 20-138.1) and the causal link between that violation and the death. If these elements are present, the State need not demonstrate that defendant violated any other rule of the road, nor that his conduct was in any other way wrongful. State v. McGill, 314 N.C. 633, 336 S.E.2d 90, 1985 N.C. LEXIS 2093 (1985).

B.Voluntary

Definitions. —

Voluntary manslaughter is the unlawful killing of a human being without malice, premeditation or deliberation. State v. Rummage, 280 N.C. 51, 185 S.E.2d 221, 1971 N.C. LEXIS 1090 (1971); State v. Davis, 15 N.C. App. 395, 190 S.E.2d 434, 1972 N.C. App. LEXIS 1925 (1972); State v. Cannady, 16 N.C. App. 569, 192 S.E.2d 677, 1972 N.C. App. LEXIS 1762 (1972); State v. Fox, 18 N.C. App. 523, 197 S.E.2d 265, 1973 N.C. App. LEXIS 1927, cert. denied, 283 N.C. 755, 198 S.E.2d 725, 1973 N.C. LEXIS 1083 (1973); State v. Christopher, 29 N.C. App. 231, 223 S.E.2d 835, 1976 N.C. App. LEXIS 2450 (1976); State v. Foust, 32 N.C. App. 301, 232 S.E.2d 276, 1977 N.C. App. LEXIS 1919 (1977); State v. Cates, 293 N.C. 462, 238 S.E.2d 465, 1977 N.C. LEXIS 972 (1977); State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978); State v. Holcomb, 295 N.C. 608, 247 S.E.2d 888, 1978 N.C. LEXIS 1073 (1978); Gardner v. Forister, 468 F. Supp. 761, 1979 U.S. Dist. LEXIS 13170 (W.D.N.C. 1979); State v. Brown, 300 N.C. 731, 268 S.E.2d 201, 1980 N.C. LEXIS 1135 (1980); State v. King, 49 N.C. App. 499, 272 S.E.2d 26, 1980 N.C. App. LEXIS 3423 (1980); State v. Norris, 303 N.C. 526, 279 S.E.2d 570, 1981 N.C. LEXIS 1188 (1981); State v. Rinck, 303 N.C. 551, 280 S.E.2d 912, 1981 N.C. LEXIS 1197 (1981); State v. Robbins, 309 N.C. 771, 309 S.E.2d 188, 1983 N.C. LEXIS 1456 (1983); State v. Rathbone, 78 N.C. App. 58, 336 S.E.2d 702, 1985 N.C. App. LEXIS 4259 (1985); State v. Brown, 80 N.C. App. 307, 342 S.E.2d 42, 1986 N.C. App. LEXIS 2171 (1986).

Generally voluntary manslaughter occurs when one kills intentionally but does so in the heat of passion suddenly aroused by adequate provocation or in the exercise of self-defense where excessive force under the circumstances is employed or where the defendant is the aggressor bringing on the affray. Although a killing under these circumstances is both unlawful and intentional, the circumstances themselves are said to displace malice and to reduce the offense from murder to manslaughter. State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978); State v. Ferrell, 300 N.C. 157, 265 S.E.2d 210, 1980 N.C. LEXIS 1043 (1980), overruled, State v. Collins, 334 N.C. 54, 431 S.E.2d 188, 1993 N.C. LEXIS 291 (1993); State v. Lindsay, 45 N.C. App. 514, 263 S.E.2d 364, 1980 N.C. App. LEXIS 3013 (1980).

One who kills a human being under the influence of sudden passion, produced by adequate provocation sufficient to negate malice, is guilty of manslaughter. State v. Robbins, 309 N.C. 771, 309 S.E.2d 188, 1983 N.C. LEXIS 1456 (1983); State v. Rathbone, 78 N.C. App. 58, 336 S.E.2d 702, 1985 N.C. App. LEXIS 4259 (1985).

Malice is not a necessary element of voluntary manslaughter. Reeves v. Reed, 452 F. Supp. 783, 1978 U.S. Dist. LEXIS 17525 (W.D.N.C. 1978), rev'd, 596 F.2d 628, 1979 U.S. App. LEXIS 15305 (4th Cir. 1979).

Theory of voluntary manslaughter is supported where the victim used words and threatening behavior toward defendant, thereby causing him to feel anger, rage, or furious resentment which rendered his mind incapable of cool reflection. State v. Mathis, 105 N.C. App. 402, 413 S.E.2d 301, 1992 N.C. App. LEXIS 230 (1992).

Adequate Provocation to Negate Malice. —

The crime of second degree murder may be reduced to voluntary manslaughter upon a showing that defendant killed his victim in the heat of passion caused by provocation adequate to negate the element of malice. State v. Best, 79 N.C. App. 734, 340 S.E.2d 524, 1986 N.C. App. LEXIS 2112 (1986), overruled, State v. Maynor, 331 N.C. 695, 417 S.E.2d 453, 1992 N.C. LEXIS 417 (1992).

Words alone are never sufficient provocation to mitigate second-degree murder to voluntary manslaughter. State v. Best, 79 N.C. App. 734, 340 S.E.2d 524, 1986 N.C. App. LEXIS 2112 (1986), overruled, State v. Maynor, 331 N.C. 695, 417 S.E.2d 453, 1992 N.C. LEXIS 417 (1992).

In order for an accused to reduce the crime of second-degree murder to voluntary manslaughter, he must rely on evidence presented by the State or assume a burden to go forward with or produce evidence of heat of passion on sudden provocation. State v. Adams, 85 N.C. App. 200, 354 S.E.2d 338, 1987 N.C. App. LEXIS 2571 (1987); State v. Long, 87 N.C. App. 137, 360 S.E.2d 121, 1987 N.C. App. LEXIS 3076 (1987).

Issue of Proximate Cause Properly Submitted to Jury. —

In prosecution for voluntary manslaughter, issue of proximate cause of victim’s death was properly submitted to the jury, where pathologist testified that victim died as a result of complications from the bullet wound to his chest and abdomen inflicted by defendant, even though victim’s death was precipitated by his decision against medical advice to undergo colostomy reversal surgery. State v. Gilreath, 118 N.C. App. 200, 454 S.E.2d 871, 1995 N.C. App. LEXIS 161 (1995).

Lesser Included Offense of Second Degree Murder Premised on Acting in Concert. —

Voluntary manslaughter can be a lesser included offense of second degree murder when premised on the doctrine of acting in concert. State v. McCoy, 122 N.C. App. 482, 470 S.E.2d 542, 1996 N.C. App. LEXIS 441 (1996).

Defendant’s convictions on both assault with a deadly weapon inflicting serious injury and attempted voluntary manslaughter for shooting a person were mutually exclusive offenses and the trial court’s consolidation of the offenses into a single judgment was error that mandated a new trial; for the jury to convict on both offenses, it had to find either that defendant did not have the intent to kill, which would support the assault offense, or that he had the intent to kill, but that such intent was negated by sudden provocation, which would support the attempted manslaughter charge. State v. Hames, 170 N.C. App. 312, 612 S.E.2d 408, 2005 N.C. App. LEXIS 1007 (2005).

Extraordinary Mitigating Circumstances Not Found. —

When defendant pled guilty to voluntary manslaughter after acceding to defendant’s wife’s request to help the wife end the wife’s life, a trial court accurately understood the law by declining to find extraordinary mitigating circumstances sparing defendant from an otherwise mandatory active sentence, as the court correctly described an extraordinary factor as one “greater than in a normal case” and correctly stated the quality of factors, not the quantity, was the court’s prime consideration, accurately conveying the law that the victim’s consent and participation or the support of defendant’s family were only extraordinary mitigating factors if their quality and nature were substantially greater than the normal case. State v. Leonard, 258 N.C. App. 129, 811 S.E.2d 658, 2018 N.C. App. LEXIS 193 (2018).

C.Involuntary

Definitions. —

Involuntary manslaughter is the unlawful killing of a human being, unintentionally and without malice, proximately resulting from the commission of an unlawful act not amounting to a felony, or resulting from some act done in an unlawful or culpably negligent manner, when fatal consequences were not improbable under all the facts existent at the time, or resulting from the culpably negligent omission to perform a legal duty. State v. Lawson, 6 N.C. App. 1, 169 S.E.2d 265, 1969 N.C. App. LEXIS 1129 (1969); State v. Stimpson, 279 N.C. 716, 185 S.E.2d 168, 1971 N.C. LEXIS 912 (1971); State v. Rummage, 280 N.C. 51, 185 S.E.2d 221, 1971 N.C. LEXIS 1090 (1971); State v. Holshouser, 15 N.C. App. 469, 190 S.E.2d 420, 1972 N.C. App. LEXIS 1943 (1972); State v. Robinson, 15 N.C. App. 542, 190 S.E.2d 427, 1972 N.C. App. LEXIS 1962 (1972); State v. Ward, 286 N.C. 304, 210 S.E.2d 407, 1974 N.C. LEXIS 1229 (1974), vacated in part, 428 U.S. 903, 96 S. Ct. 3206, 49 L. Ed. 2d 1207, 1976 U.S. LEXIS 4200 (1976); State v. Redfern, 291 N.C. 319, 230 S.E.2d 152, 1976 N.C. LEXIS 977 (1976), overruled, State v. Collins, 334 N.C. 54, 431 S.E.2d 188, 1993 N.C. LEXIS 291 (1993); State v. Everhart, 291 N.C. 700, 231 S.E.2d 604, 1977 N.C. LEXIS 1236 (1977); State v. Waite, 32 N.C. App. 279, 232 S.E.2d 278, 1977 N.C. App. LEXIS 1913 (1977); State v. Cates, 293 N.C. 462, 238 S.E.2d 465, 1977 N.C. LEXIS 972 (1977); State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978); State v. Lindsay, 45 N.C. App. 514, 263 S.E.2d 364, 1980 N.C. App. LEXIS 3013 (1980); State v. Oxendine, 300 N.C. 720, 268 S.E.2d 212, 1980 N.C. LEXIS 1138 (1980); State v. McAdams, 51 N.C. App. 140, 275 S.E.2d 500, 1981 N.C. App. LEXIS 2180 (1981); State v. Martin, 52 N.C. App. 373, 278 S.E.2d 305, 1981 N.C. App. LEXIS 2418, cert. denied, 303 N.C. 549, 281 S.E.2d 399, 1981 N.C. LEXIS 1404 (1981); State v. Norris, 303 N.C. 526, 279 S.E.2d 570, 1981 N.C. LEXIS 1188 (1981); State v. Flaherty, 55 N.C. App. 14, 284 S.E.2d 565, 1981 N.C. App. LEXIS 2971 (1981); State v. Atkins, 58 N.C. App. 146, 292 S.E.2d 744, 1982 N.C. App. LEXIS 2732 (1982); State v. Matthis, 59 N.C. App. 233, 296 S.E.2d 20, 1982 N.C. App. LEXIS 3071 (1982); State v. Robbins, 309 N.C. 771, 309 S.E.2d 188, 1983 N.C. LEXIS 1456 (1983); State v. Allen, 77 N.C. App. 142, 334 S.E.2d 410, 1985 N.C. App. LEXIS 4056 (1985); State v. Hamilton, 77 N.C. App. 506, 335 S.E.2d 506, 1985 N.C. App. LEXIS 4170 (1985); State v. Greene, 314 N.C. 649, 336 S.E.2d 87, 1985 N.C. LEXIS 2094 (1985); State v. McGill, 314 N.C. 633, 336 S.E.2d 90, 1985 N.C. LEXIS 2093 (1985); State v. Bullard, 79 N.C. App. 440, 339 S.E.2d 664, 1986 N.C. App. LEXIS 2060 (1986); State v. Fisher, 318 N.C. 512, 350 S.E.2d 334, 1986 N.C. LEXIS 2738 (1986); State v. Daniels, 87 N.C. App. 287, 360 S.E.2d 470, 1987 N.C. App. LEXIS 3129 (1987).

Involuntary manslaughter is the unlawful killing of a human being without malice, without premeditation and deliberation, and without intention to kill or inflict serious bodily injury. State v. Davis, 15 N.C. App. 395, 190 S.E.2d 434, 1972 N.C. App. LEXIS 1925 (1972); State v. Cannady, 16 N.C. App. 569, 192 S.E.2d 677, 1972 N.C. App. LEXIS 1762 (1972); State v. Stewart, 292 N.C. 219, 232 S.E.2d 443, 1977 N.C. LEXIS 1055 (1977); State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978); State v. Haith, 48 N.C. App. 319, 269 S.E.2d 205, 1980 N.C. App. LEXIS 3239 (1980); State v. Norris, 303 N.C. 526, 279 S.E.2d 570, 1981 N.C. LEXIS 1188 (1981); State v. Best, 59 N.C. App. 96, 295 S.E.2d 774, 1982 N.C. App. LEXIS 2862 (1982); State v. Daniels, 87 N.C. App. 287, 360 S.E.2d 470, 1987 N.C. App. LEXIS 3129 (1987).

Involuntary manslaughter is the unintentional killing of a human being without malice, proximately caused by (1) an unlawful act not amounting to a felony nor naturally dangerous to human life, or (2) a culpably negligent act or omission. State v. Wingard, 317 N.C. 590, 346 S.E.2d 638, 1986 N.C. LEXIS 2411 (1986); State v. Knight, 87 N.C. App. 125, 360 S.E.2d 125, 1987 N.C. App. LEXIS 3074 (1987).

Involuntary Manslaughter of Children By Starvation or Malnutrition. —

In cases of starvation or malnutrition of children by their parents or guardians, three elements must exist: (1) the defendant must have a duty to adequately feed and nourish the child; (2) the defendant must refuse to feed and nourish the child, either willfully or by his/her culpable negligence; and (3) the defendant’s actions, or inactions, must proximately result in the child’s death. State v. Fritsch, 132 N.C. App. 262, 511 S.E.2d 325, 1999 N.C. App. LEXIS 120 (1999), aff'd in part and rev'd in part, 351 N.C. 373, 526 S.E.2d 451, 2000 N.C. LEXIS 241 (2000).

Homicide Must Have Been Unintentional and Without Malice. —

To constitute involuntary manslaughter, the homicide must have been without intention to kill or inflict serious bodily injury, and without either express or implied malice. State v. Foust, 258 N.C. 453, 128 S.E.2d 889, 1963 N.C. LEXIS 440 (1963).

Unintentional Killing by Intentional Act. —

While involuntary manslaughter imports an unintentional killing, i.e., the absence of a specific intent to kill, it is accomplished by means of some intentional act. State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978).

Although involuntary manslaughter does not concern intent to kill, it does connote an intentional act, like the defendant voluntarily drawing his gun. State v. Boyd, 61 N.C. App. 238, 300 S.E.2d 578, 1983 N.C. App. LEXIS 2628, cert. denied, 308 N.C. 545, 304 S.E.2d 238, 1983 N.C. LEXIS 1366 (1983).

A death that occurs as a result of constituting involuntary manslaughter, driving while impaired, although perhaps unintentional, is not an accident, because this result is reasonably foreseeable. Baker v. Provident Life & Accident Ins. Co., 171 F.3d 939, 1999 U.S. App. LEXIS 2600 (4th Cir. 1999).

An intentional violation of some statute designed for the protection of people which proximately though unintentionally causes death can support a conviction of involuntary manslaughter. State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978).

Violation of “Safety” Statute or Ordinance. —

The intentional, willful, or wanton violation of any “safety” statute or ordinance, which proximately results in death, can support a conviction of involuntary manslaughter. State v. Powell, 109 N.C. App. 1, 426 S.E.2d 91, 1993 N.C. App. LEXIS 184 (1993), aff'd, 336 N.C. 762, 446 S.E.2d 26, 1994 N.C. LEXIS 413 (1994).

Same — Illustrative Case. —

Where evidence was presented, including physical evidence, that defendant’s dogs, running loose, attacked and killed the victim, and that the dogs weighing one hundred pounds and eighty pounds, respectively, were trained by defendant to be aggressive and to scare people, there was substantial evidence that defendant intentionally violated a safety ordinance, and that such violation was the proximate cause of the victim’s death; therefore, the trial court properly submitted the charge of involuntary manslaughter to the jury. State v. Powell, 109 N.C. App. 1, 426 S.E.2d 91, 1993 N.C. App. LEXIS 184 (1993), aff'd, 336 N.C. 762, 446 S.E.2d 26, 1994 N.C. LEXIS 413 (1994).

Instruction on involuntary manslaughter is not required, regardless of whether the actual killing was intentional or unintentional, when the intentional act leading to death was naturally dangerous to human life. State v. Lawrance, 94 N.C. App. 380, 380 S.E.2d 156, 1989 N.C. App. LEXIS 457 (1989).

Evidence Held Not to Support Involuntary Manslaughter Instruction. —

Where defendant was convicted of suffocating his seven-month-old son, trial court correctly determined that the evidence presented at trial did not support an involuntary manslaughter instruction; although defendant might not have intended to actually kill his son, the evidence certainly tended to show that he intended to press the child’s face into the mattress. State v. Lawrance, 94 N.C. App. 380, 380 S.E.2d 156, 1989 N.C. App. LEXIS 457 (1989).

Defendant was not entitled to a jury instruction on involuntary manslaughter where the State’s evidence showed that the defendant had knowledge of and experience with farm pesticides; that he went to a farm to obtain the deadly pesticide used in the murder; that he concocted a story as to why he needed the poison; that he showed the poison to two people; that he put it in his children’s Kool-Aid; that he failed to say anything at the hospital as to the real reason his children were sick; and where no evidence except the defendant’s denial negated the State’s evidence. State v. Smith, 351 N.C. 251, 524 S.E.2d 28, 2000 N.C. LEXIS 3, cert. denied, 531 U.S. 862, 121 S. Ct. 151, 148 L. Ed. 2d 100, 2000 U.S. LEXIS 5702 (2000).

A mere assault which proximately results in death, but which does not indicate a total disregard for human life and is committed with no intent to kill or to inflict serious bodily injury, will support, at most, a verdict of involuntary manslaughter. State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978).

Punishment for involuntary manslaughter may be by fine or imprisonment or both in the discretion of the court. The imprisonment, however, may not exceed ten years. State v. Swinney, 271 N.C. 130, 155 S.E.2d 545, 1967 N.C. LEXIS 1165 (1967).

Defendant’s contention that involuntary manslaughter was a misdemeanor for which punishment could not exceed two years was not sustained in State v. Swinney, 271 N.C. 130, 155 S.E.2d 545, 1967 N.C. LEXIS 1165 (1967); State v. Efird, 271 N.C. 730, 157 S.E.2d 538, 1967 N.C. LEXIS 1277 (1967).

Involuntary manslaughter is a lesser included offense of murder and of voluntary manslaughter. State v. Greene, 314 N.C. 649, 336 S.E.2d 87, 1985 N.C. LEXIS 2094 (1985); State v. Mecado, 314 N.C. 659, 336 S.E.2d 87, 1985 N.C. LEXIS 2086 (1985).

Conviction for Involuntary Manslaughter Upheld. —

Defendant’s conviction of involuntary manslaughter under G.S. 14-18, was affirmed; the trial court properly refused to admit a synopsis of defendant’s statement given to police officer, as the synopsis did not did not fall within the recorded recollection hearsay exception under G.S. 8C-1, N.C. R. Evid. 803(5), because there was no showing that defendant had an insufficient recollection of events, and the trial court properly denied defendant’s motion to dismiss pursuant to G.S. 15A-954, because the State adequately proved the elements of the crime of voluntary manslaughter. State v. Alston, 161 N.C. App. 367, 588 S.E.2d 530, 2003 N.C. App. LEXIS 2185 (2003), aff'd, 359 N.C. 61, 602 S.E.2d 674, 2004 N.C. LEXIS 1123 (2004).

Blakely Errors Were Harmless. —

Blakely errors committed by the trial court in sentencing defendant for involuntary manslaughter were harmless as defendant knowingly created a great risk of death to more than one person by means of a weapon or device that would normally be hazardous to more than one person since: (1) defendant operated defendant’s vehicle in a reckless manner by speeding, driving while intoxicated and with THC and morphine in defendant’s blood, and weaving in and out of traffic; (2) a reasonable person would have known that a great risk of death had been created; (3) defendant’s blood alcohol concentration was 0.10 two hours after the collision; (4) defendant acknowledged that the two involuntary manslaughter convictions showed that in the course of conduct as to each offense defendant killed another; and (5) since there were two involuntary manslaughter convictions, the evidence used to prove an element of one offense could be used to support an aggravating factor of a separate joined offense. State v. Speight, 186 N.C. App. 93, 650 S.E.2d 452, 2007 N.C. App. LEXIS 1983 (2007).

For discussion of involuntary manslaughter, see State v. Crisp, 64 N.C. App. 493, 307 S.E.2d 776, 1983 N.C. App. LEXIS 3321 (1983); State v. Allen, 77 N.C. App. 142, 334 S.E.2d 410, 1985 N.C. App. LEXIS 4056 (1985).

III.Heat of Passion

Heat of Passion Defined. —

See State v. Pope, 24 N.C. App. 217, 210 S.E.2d 267, 1974 N.C. App. LEXIS 1965 (1974), cert. denied, 286 N.C. 419, 211 S.E.2d 799, 1975 N.C. LEXIS 1230 (1975); State v. Long, 87 N.C. App. 137, 360 S.E.2d 121, 1987 N.C. App. LEXIS 3076 (1987).

Heat of passion is defined as rage, anger, hatred or furious resentment rendering the mind incapable of cool reflection. State v. Spicer, 50 N.C. App. 214, 273 S.E.2d 521, 1981 N.C. App. LEXIS 2110 (1981).

A killing is without malice if the one who kills acted while under the influence of passion or in the heat of blood produced by adequate provocation. State v. Spicer, 50 N.C. App. 214, 273 S.E.2d 521, 1981 N.C. App. LEXIS 2110 (1981).

When one spouse kills the other in a heat of passion engendered by the discovery of the deceased and a paramour in the very act of intercourse, or under circumstances clearly indicating that the act had just been completed, or was “severely proximate,” and the killing follows immediately, it is manslaughter. State v. Ward, 286 N.C. 304, 210 S.E.2d 407, 1974 N.C. LEXIS 1229 (1974), vacated in part, 428 U.S. 903, 96 S. Ct. 3206, 49 L. Ed. 2d 1207, 1976 U.S. LEXIS 4200 (1976); State v. Long, 87 N.C. App. 137, 360 S.E.2d 121, 1987 N.C. App. LEXIS 3076 (1987).

A mere suspicion, belief or knowledge of past adultery will not change the character of a homicide from murder to manslaughter. State v. Long, 87 N.C. App. 137, 360 S.E.2d 121, 1987 N.C. App. LEXIS 3076 (1987).

IV.Reckless Use of Firearms

Deaths Caused by Wanton or Reckless Use of Firearms. —

With few exceptions, it may be said that every unintentional killing of a human being proximately caused by a wanton or reckless use of firearms, in the absence of intent to discharge the weapon or in the belief that it is not loaded, and under circumstances not evidencing a heart devoid of a sense of social duty is involuntary manslaughter. State v. Foust, 258 N.C. 453, 128 S.E.2d 889, 1963 N.C. LEXIS 440 (1963); State v. Davis, 15 N.C. App. 395, 190 S.E.2d 434, 1972 N.C. App. LEXIS 1925 (1972); State v. Adcock, 24 N.C. App. 102, 210 S.E.2d 127, 1974 N.C. App. LEXIS 1939 (1974), cert. denied, 286 N.C. 416, 211 S.E.2d 796, 1975 N.C. LEXIS 1214 (1975); State v. Redfern, 291 N.C. 319, 230 S.E.2d 152, 1976 N.C. LEXIS 977 (1976), overruled, State v. Collins, 334 N.C. 54, 431 S.E.2d 188, 1993 N.C. LEXIS 291 (1993); State v. Best, 59 N.C. App. 96, 295 S.E.2d 774, 1982 N.C. App. LEXIS 2862 (1982); State v. Robbins, 309 N.C. 771, 309 S.E.2d 188, 1983 N.C. LEXIS 1456 (1983).

One who handles a firearm in a reckless or wanton manner and thereby unintentionally causes the death of another is guilty of involuntary manslaughter. State v. Moore, 275 N.C. 198, 166 S.E.2d 652, 1969 N.C. LEXIS 375 (1969); State v. Putnam, 24 N.C. App. 570, 211 S.E.2d 493, 1975 N.C. App. LEXIS 2435 (1975); State v. Boyd, 61 N.C. App. 238, 300 S.E.2d 578, 1983 N.C. App. LEXIS 2628, cert. denied, 308 N.C. 545, 304 S.E.2d 238, 1983 N.C. LEXIS 1366 (1983).

Ordinarily an unintentional homicide resulting from the reckless use of firearms “in the absence of intent to discharge the weapon, or in the belief that it is not loaded, and under the circumstances not evidencing a heart devoid of a sense of social duty, is involuntary manslaughter.” When the circumstances do show a heart devoid of a sense of social duty, the homicide cannot be involuntary manslaughter. State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978); State v. Oxendine, 300 N.C. 720, 268 S.E.2d 212, 1980 N.C. LEXIS 1138 (1980).

An unintentional killing with a firearm resulting from culpable negligence is ordinarily involuntary manslaughter, unless the defendant acts with a heart devoid of a sense of social duty, or with a depravity of mind and disregard for human life. State v. Lytton, 319 N.C. 422, 355 S.E.2d 485, 1987 N.C. LEXIS 2027 (1987).

At common law and under this section one who points a loaded gun at another, though without intention of discharging it, if the gun goes off accidentally and kills, commits manslaughter. State v. Stimpson, 279 N.C. 716, 185 S.E.2d 168, 1971 N.C. LEXIS 912 (1971).

Facts Supporting Charge Concerning Negligent Handling of Gun. —

The showing that defendant was seated at a table, deceased was standing near him, defendant pulled the gun from his pocket after which it fired with the bullet striking deceased in the forehead, would certainly be some evidence that defendant intentionally pointed the gun at the deceased even though it may have fired accidentally. There were sufficient facts presented to support the charge concerning whether defendant handled the gun in a criminally negligent manner. State v. Jones, 15 N.C. App. 537, 190 S.E.2d 278, 1972 N.C. App. LEXIS 1960 (1972).

V.Culpable Negligence

Definitions. —

Culpable negligence in the law of involuntary manslaughter is something more than actionable negligence in the law of torts, and is such recklessness or carelessness, proximately resulting in injury or death, as is incompatible with a proper regard for the safety or rights of others. State v. Gainey, 29 N.C. App. 653, 225 S.E.2d 843, 1976 N.C. App. LEXIS 2621 (1976), rev'd, 292 N.C. 627, 234 S.E.2d 610, 1977 N.C. LEXIS 1145 (1977).

Culpable negligence in the criminal law requires more than the negligence necessary to sustain a recovery in tort. Rather, for negligence to constitute the basis for the imposition of criminal sanctions, it must be such reckless or careless behavior that the act imports a thoughtless disregard of the consequences of the act or the act shows a heedless indifference to the rights and safety of others. There must be negligence of a gross and flagrant character, evincing reckless disregard of human life. State v. Newcomb, 26 N.C. App. 595, 216 S.E.2d 730, 1975 N.C. App. LEXIS 2121, cert. denied, 288 N.C. 249, 217 S.E.2d 680, 1975 N.C. LEXIS 953 (1975); State v. Everhart, 291 N.C. 700, 231 S.E.2d 604, 1977 N.C. LEXIS 1236 (1977); State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978); State v. Flaherty, 55 N.C. App. 14, 284 S.E.2d 565, 1981 N.C. App. LEXIS 2971 (1981).

Violation of Safety Statute or Ordinance. —

In a prosecution for involuntary manslaughter, the violation of a safety statute regulating the use of highways does not constitute culpable negligence unless such violation is intentional, willful or wanton, or unless the violation, though unintentional, is accompanied by recklessness or is under circumstances from which death or injury to others might have been reasonably anticipated. State v. Gainey, 29 N.C. App. 653, 225 S.E.2d 843, 1976 N.C. App. LEXIS 2621 (1976), rev'd, 292 N.C. 627, 234 S.E.2d 610, 1977 N.C. LEXIS 1145 (1977).

An intentional, willful or wanton violation of a statute or ordinance, designed for the protection of human life or limb, which proximately results in injury or death, is culpable negligence. State v. Stewardson, 32 N.C. App. 344, 232 S.E.2d 308, 1977 N.C. App. LEXIS 1926, cert. denied, 292 N.C. 643, 235 S.E.2d 64, 1977 N.C. LEXIS 1166 (1977); State v. Jones, 32 N.C. App. 408, 232 S.E.2d 475, 1977 N.C. App. LEXIS 1962 (1977); State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978); State v. Atkins, 58 N.C. App. 146, 292 S.E.2d 744, 1982 N.C. App. LEXIS 2732 (1982).

Where defendant’s dog attacked and killed jogger, the State presented substantial evidence of each element of the offense of involuntary manslaughter based on culpable negligence where a city safety ordinance was involved. State v. Powell, 336 N.C. 762, 446 S.E.2d 26, 1994 N.C. LEXIS 413 (1994).

Deaths Resulting from Culpable Negligence. —

Culpable negligence, from which death proximately ensues, makes the actor guilty of manslaughter, and under some circumstances, guilty of murder. State v. Colson, 262 N.C. 506, 138 S.E.2d 121, 1964 N.C. LEXIS 680 (1964).

A death which is proximately caused by culpable negligence is involuntary manslaughter. State v. Lane, 77 N.C. App. 741, 336 S.E.2d 410, 1985 N.C. App. LEXIS 4365 (1985).

Culpable Negligence Not Sufficient to Support Murder Charge. —

Since the distinction between manslaughter and murder in the second degree is malice, culpable negligence will not support a murder charge unless there are sufficient facts to support a finding of malice. State v. Mapp, 45 N.C. App. 574, 264 S.E.2d 348, 1980 N.C. App. LEXIS 2709 (1980).

Both involuntary manslaughter and second-degree murder can involve an act of “culpable negligence” that proximately causes death. Culpable negligence, standing alone, will support at most involuntary manslaughter. When, however, an act of culpable negligence also imports danger to another and is done so recklessly or wantonly as to manifest depravity of mind and disregard of human life, it will support a conviction for second-degree murder. State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978); State v. Mapp, 45 N.C. App. 574, 264 S.E.2d 348, 1980 N.C. App. LEXIS 2709 (1980).

Intentional Shooting Can Be Culpable Negligence. —

It is not true that in order to entitle defendant to an instruction on involuntary manslaughter, the discharge of a weapon must necessarily be unintentional. An intentional shooting at an object can amount to culpable negligence, which is one of the states of mind required for an instruction on involuntary manslaughter. State v. Brewer, 325 N.C. 550, 386 S.E.2d 569, 1989 N.C. LEXIS 604 (1989), cert. denied, 495 U.S. 951, 110 S. Ct. 2215, 109 L. Ed. 2d 541, 1990 U.S. LEXIS 2638 (1990).

Involuntary Manslaughter While Operating Motor Vehicle. —

A defendant may be convicted of involuntary manslaughter in connection with the operation of a motor vehicle upon proof by the State that defendant (1) violated a safety statute, (2) in a culpably negligent manner, and (3) that such violation was a proximate cause of the victim’s death. State v. Bailey, 76 N.C. App. 610, 334 S.E.2d 266, 1985 N.C. App. LEXIS 3925 (1985), overruled, State v. Drdak, 330 N.C. 587, 411 S.E.2d 604, 1992 N.C. LEXIS 6 (1992).

Trial court did not err in denying defendant’s motion to dismiss the charges because, although defendant’s actions while driving were not impaired by alcohol, they were still sufficient to establish the culpable negligence needed to support both involuntary manslaughter and assault with a deadly weapon inflicting serious injury. A witness noticed inappropriate driving by both defendant and the decedent prior to their vehicles approaching a sharp curve, as they approached the curve, defendant attempted to pass the decedent and the witness despite having no visibility around the curve, and defendant’s attempt to pass the vehicles at that particular time was in blatant disregard of safety concerns associated with that portion of the highway and a violation of G.S. 20-150. State v. Wade, 161 N.C. App. 686, 589 S.E.2d 379, 2003 N.C. App. LEXIS 2268 (2003).

Death by Vehicle as Lesser Included Offense. —

Death by vehicle under G.S. 20-141.4(a), repealed and revised as G.S. 20-141.4(a2), is a lesser included offense of the common law felony of involuntary manslaughter, made punishable by G.S. 14-18. The distinction is that the lesser offense does not depend upon the presence of culpable or criminal negligence, it being enough to convict if death proximately results from the violation of a traffic statute or ordinance. State v. Lackey, 71 N.C. App. 581, 323 S.E.2d 32, 1984 N.C. App. LEXIS 3920 (1984).

Evidence tending to show that the deceased said, “Don’t shoot me,” standing alone, was not sufficient to raise an inference that the defendant intentionally pointed the weapon at her, or that he handled it in such a careless and reckless manner as to amount to culpable negligence. State v. Holshouser, 15 N.C. App. 469, 190 S.E.2d 420, 1972 N.C. App. LEXIS 1943 (1972).

Evidence that death was caused by defendant inadvertently stabbing victim in the chest while not attempting or intending to do so clearly met the requirement that the act be done in a culpable or criminally negligent way. State v. Daniels, 87 N.C. App. 287, 360 S.E.2d 470, 1987 N.C. App. LEXIS 3129 (1987).