No. 8321SC674 | N.C. Ct. App. | Feb 7, 1984
Defendant was convicted of three counts of second degree murder. Second degree murder is defined as the unlawful killing of a human being with malice, but without premeditation and deliberation. State v. Duboise, 279 N.C. 73" date_filed="1971-06-10" court="N.C." case_name="State v. Duboise">279 N.C. 73, 181 S.E. 2d 393 (1971). Although the issue has not been raised by the parties, we find that the conviction of defendant for second degree murder constituted “plain error” as there is no evidence of malice on the part of defendant.
Malice as an element of the crime of second degree murder may be either express or implied. State v. Foust, 258 N.C. 453, 128 S.E. 2d 889 (1963). Furthermore, malice is not only hatred, ill-will, or spite, as it is ordinarily defined, but it also includes the “condition of the mind which prompts a person to take the life of another intentionally without just cause, excuse, or justification.” Id. at 458, 128 S.E. 2d at 893.
In the case at bar, there is no question that defendant’s act of running a red light and striking the car of the decedents resulted in their deaths. There is no evidence, however, express or implied, that these deaths were the result of any malice. Without this essential element there can be no crime of second degree murder.
The disposition of this case in no way prevents the State from prosecuting defendant for the offenses of involuntary manslaughter or death by vehicle (see C. Whitebread, Constitutional Criminal Procedure, § 23.6 Appeal, Retrial, and Implied Acquittal (1978), but the conviction on the three counts of second degree murder is
Reversed.