State v. Furr

26 N.C. App. 335 | N.C. Ct. App. | 1975

MORRIS, Judge.

With commendable candor, the State calls our attention to the following portion of the trial court’s instruction with respect to the charge of discharging a firearm into an occupied building:

“Members of the jury, the defendant is also charged with discharging a firearm into an occupied building. Now, I charge that for you to find the defendant guilty of discharging a firearm into occupied property, the State must prove three things beyond a reasonable doubt. First, that the defendant intentionally and without justification or excuse discharged a shotgun into the Speedway Lounge; second, that the Speedway Lounge was occupied at the time the gun was discharged; and, third, that the defendant acted willfully or wantonly, which means that he had knowledge that the Speedway Lounge was occupied by one or more persons, or that he had reasonable grounds to believe that the Speedway Lounge might be occupied by one or more persons.”

As we pointed out in State v. Williams, 21 N.C. App. 525, 204 S.E. 2d 864 (1974), and more recently in State v. Tanner, 25 N.C. App. 251, 212 S.E. 2d 695 (1975), although taken from the “Pattern Jury Instructions for Criminal Cases in North Carolina,” we think this is an incorrect statement of the law in that it equates willful and wanton conduct with knowledge of occupancy of the building and thereby attempts to condense two separate elements of the crime into one. G.S. 14-34.1, the statute under which defendant was charged, reads as follows:

“Discharging firearm into occupied property. — Any person who wilfully or wantonly discharges a firearm into or attempts to discharge a firearm into any building, structure, vehicle, aircraft, water craft, or other conveyance, device, equipment, erection, or enclosure while it is occupied is guilty of a felony punishable as provided in § 14-2.”

The correct definition of what constitutes the offense is set out in State v. Williams, 284 N.C. 67, 73, 199 S.E. 2d 409, 412 (1973) :

“[A] person is guilty of the felony created by G.S. 14-34.1 if he intentionally, without legal justification or excuse, discharges a firearm into an occupied building with knowledge that the building is then occupied by one or more persons or when he has reasonable grounds to believe that the building might be occupied by one or more persons.”

Defendant is entitled to a new trial on the charge of discharging a firearm into an occupied building because of error in the instructions to the jury on that charge. As to the other charges for which defendant was convicted, we find no error.

No. 74CR40018 — New trial.

No. 74CR49708 — No error.

No. 74CR49709 — No error.

No. 74CR49710 — No error.

Chief Judge Brock and Judge Hedrick concur.