*1 FALL TERM 1981 v. State Wall violates I Section of Article of the North Carolina 143B-283] Constitution. Consequently, judgment appealed from is
Reversed. WALL,
STATE OF NORTH CAROLINA JOHN JR. No. 22 (Filed 1982) January 4.2, felony-murder §§ 1. merger felony Homicide 21.6— rule —doctrine of — discharging occupied property firearm into Supreme adopt merger The will Court a doctrine which would bar degree felony felony upon defendant’s conviction of first a based which integral part is an of the homicide and is an offense within the included fact Therefore, charged. felony offense defendant’s conviction of first properly upon underlying felony murder could be based discharging a occupied firearm into vehicle in violation of G.S. 14-34.1. 4.2, 14.2; §§ 2. felony-murder § Homicide Constitutional Law 28— statute —consti- tutionality felony-murder The rule set forth in G.S. 14-17 does not a establish premeditation presumption of process deliberation violation due protection equal premeditation since and deliberation are not elements of the felony-murder crime of presumption and the statute involves no all. felony-murder § 3. 4.2— discharging occupied Homicide prop- into firearm rule — erty underlying felony legislature —intent The legislature 1977 revision of G.S. 14-17makes clear that the intend- discharging occupied property ed that the of a firearm into be included as an underlying purposes for the rule. 1;§ § 4. Arrest and Bail larceny right Homicide 23— misdemeanor to detain — — firing fleeing justification into automobile or excuse thief — felony-murder prosecution in a was not entitled to an in- justification upon struction on setting excuse based the statute forth when may private person detain another who has a crime committed in his 15A-404, presence, G.S. where the evidence showed that the victim and packs another took two six from the beer store which defendant was them, working paying pistol without and that defendant fired a into the lot, occupied exiting vehicle parking victim as the vehicle was the store (1) longer since defendant could no “detain” the victim once the victim was (2) control, beyond defendant's private neither an officer nor citizen 15-401(d). employ deadly fleeing could force to detain misdemeanant. G.S. IN THE SUPREME COURT *2 v. Wall 80; felony- § § 138.2— life Criminal Law sentence for 5. Constitutional Law punishment murder —no cruel and unusual felony-murder imprisonment for A life a did not constitute sentence of punishment. and unusual cruel 25; discharging weapon occupied § Weapons 3— § 6. and Firearms into Homicide felony-murder—instructions on defendant’s contentions vehicle — felony-murder by discharging a firearm into an prosecution In for oc- a vehicle, adequately presented jury the cupied trial court’s instructions to the that he did and substantial features defendant’s contention not the essential intentionally Furthermore, into vehicle. the trial court was re- shoot the charge “at” rather than quired on defendant’s contention that fired to vehicle, intentionally a shot since defendant could not have fired “into” the go intending without bullet “into” the vehicle. “at” the vehicle the impeachment prosecutor’s § admitted for 7. Law 128.2— statement Criminal — jury argument of mistrial not abuse of discretion use in substantive —denial felony-murder by firing pistol a prosecution a into vehicle oc- In a by packs six cupied teenagers who had stolen two beer from the store two worked, prosecutor’s jury argu- in the substantive use his in which defendant teenagers that he started to let the leave statement but ment of defendant’s it,” said, had “The hell with when statement been admitted for im- then only, prejudicial light in purposes was not so to defendant of the peachment overwhelming on as to render his evidence the issue of intent the denial of mo- a manifest abuse of the trial court’s discretion. tion for mistrial 30.2, guilt felony-murder §§ 32.1— instruct on volun- 8. to Homicide —failure — manslaughter prejudice tary absence of prejudiced degree a first was not the failure in murder trial voluntary manslaughter charge to where defendant was court on of the trial degree theory of and was guilty of first on the found charge premeditation guilty murder with and on of first found not deliberation. admissibility photographs § 9. 20.1— Homicide felony-murder by firing pistol occupied prosecution for into vehi- In a cle, injuries properly and ad- photographs the victim's were authenticated Furthermore, testimony by purposes. for illustrative mitted into identifying photographs depicting his son and the victim’s father driving night he was killed was relevant was on to his automobile son identify identity the automobile. victim establish the jury deliberations —failure to declare § 128.2— extended 10.Criminal Law —no of discretion mistrial abuse failing to declare a mistrial its discretion trial court did not abuse jurors a verdict after four and when had failed reach on its own motion judge brought into in- them back the courtroom a half where the trial hours differences; eight stood at time the vote quire their numerical into deadlocked, four; jury gave and the indication that the the foreman deliberations; jury an hour later the judge little over asked continue FALL TERM 1981 State Wall judge again jury called the back into the courtroom and learned that the vote point; was eleven to at that judge one the foreman informed the that further verdict; jury deliberations would result a unanimous returned to its later; guilty deliberations returned verdict of a half hour and the 15A-1063(2). deliberated a total of six hours ten minutes. 6.S. Copeland dissenting.
Justice join opinion. Justices Huskins and Exum dissenting J., Griffin, defendant from Appeal 17 November 1980 Ses- *3 of Superior sion MECKLENBURG Court. indictment, form, by
Defendant was charged bill of in proper with the murder Steven Shawn Smith. defendant, Wall, Jr.,
On evening July of 14 John T’s,” working was as a cashier at “Mr. a convenience store on Monroe Road in A teenaged girl Charlotte. entered the store and out with two packs walked six of beer. As she was de- leaving, her, you fendant said he go “Ma’am cannot out the door without paying for the beer.” The took girl the beer to a Volkswagen store, automobile lot and then parking returned to the this said, by accompanied time “Ma’am, Steven Shawn Smith. Defendant beer,” money I have to have the for the to girl which the “Okay. your money.” I will replied, go get She then left the store by followed Smith. The two into the car got and to drive began lot, As car leaving off. parking defendant ran out awith .357 fired magnum pistol and three shots. The first shot missed the vehicle. The latter apparently appeared two shots to lurched, strike the automobile. The engine vehicle raced slowly as the vehicle rolled on a stop side street. Steven Smith slumped Shawn was found over the wheel with a steering fatal head wound. testimony eyewitnesses
At presented by trial the State directly shot fleeing automobile. testified he fired all three shots into the air in up attempt frighten fleeing beer thieves into stopping. first-degree Defendant was convicted of murder and sen- to life He as imprisonment. appealed right tenced a matter 7A-27(a). pursuant to G.S. this Court IN THE SUPREME COURT General, Edmisten, Attorney Byers, Joan H. L. Rufus General, the State. Attorney Assistant Howard, Toth, McConnell, by Carl W. Howard and Pruett & Toth, appellant. Rodney Shelton for defendant BRANCH, Justice. Chief defined statute follows: murder is
First-degree ly- by means perpetrated poison, which shall be A murder torture, wait, by any starving, or other imprisonment, ing deliberate, willful, killing, or which premeditated kind of attempted or in the perpetration shall committed be offense, arson, any rape, robbery, or a sex perpetration committed burglary, attempt- other kidnapping, shall be deemed be deadly weapon, with the use ed (cid:127) who commits such degree, person in the first murder imprisonment with death or punished shall be pursuant for life as the court shall determine state’s prison 15A-2000. G.S. added.) was pursuant Defendant’s conviction (Emphasis 14-17. and was portion of the above statute based
to the *4 language. upon emphasized
doctrine
580,
[1]
75 Cal.
espoused
Rptr.
argues
188
People
(1969),
this Court should
v.
which would bar
Ireland,
70
Cal.
adopt
2d
his conviction of
522,
450
merger
P.
2d
felony of
felony
upon
underlying
murder based
first-degree
The Ireland case
occupied
firearm into
vehicle.
discharging a
may
felony-murder
. . .
“a
instruction
held that in California
felony which
an in
when it is
upon
be
based
properly
given
produced
the evidence
of the homicide and which
tegral part
within the
to be an offense included in
prosecution
shows
fact
539, 450
at
P. 2d at
(Emphasis
original.)
Id.
charged.”
offense
590,
felony
198. The
a firearm into
discharging
Rptr.
75 Cal.
14-34.1,
to be such an
appears
integral
G.S.
occupied property,
con
instant case as
bar
of the homicide
part
Court, how
merger
doctrine. This
viction under
California
ever,
first-degree felony
upheld
for
expressly
has
convictions
firearm
felony
discharging a
underlying
based on the
murder
383,
Swift, 290
226 S.E. 2d
v.
N.C.
occupied
into
State
property.
FALL TERM 1981
613
(1976);
Williams,
67,
(1973);
652
State v.
284
199 S.E. 2d
N.C.
409
622,
(1904).
134
[2] Defendant maintains that considerations of due process and equal protection of law prohibit his conviction of first-degree on based less anything than a finding premeditation and deliberation. Defendant relies on the case of Mullaney v. Wilbur, 684, (1975), U.S. L.Ed. 2d S.Ct. which prohibits the conclusive presumption element of a criminal offense. We met this identical contention in a case involving firing Swift, into an occupied building, State v. supra, wherein we stated:
We do not believe that Mullaney applies this situation because 14-17 is G.S. a rule law not a presumption. If G.S. 14-17 is with compared murder in the first degree based deliberation, on premeditation and it might be said that the practical effect of 14-17 G.S. is that premeditation and deliberation are presumed when a murder is committed in felony of a perpetration described 14-17. under G.S. Doss, However, S.E. 2d 671 G.S. 14-17 actually involves no presumption at all. Under G.S. 14-17 premeditation and deliberation are not elements of the Thus, felony-murder. crime of the contention of defendant that the act of firing a firearm into an occupied dwelling has no rational connection with premeditation deliberation is only without merit. requirement purposes of G.S. felony 14-17 is that involved be one of the specified felonies or an unspecified felony within the w of purvie G.S. Williams, 14-17. We have held in State v. supra, 14-34.1 is such a because of the reasonable correlation between crime committing a under G.S. 14-34.1 and the possibility occurring. of death
It a well established rule that when the law *5 rule, justify the of felony-murder evidence use then the State is not required prove premeditation and delibera- tion, neither and is the court to submit to the required second-degree murder or unless there manslaughter 413, Doss, it. State v. 279 support N.C. (1971). (later Justice), 2d 671 Justice Parker speaking Chief IN THE 614 SUPREME COURT 469, 462, 101 247 Maynard, N.C. for our Court said (1958): 340, 345 S.E. 2d in the perpetration is committed “Where a murder robbery person, a from the to perpetrate or attempt in the first ir- degree, it murder pronounces 14-17 G.S. or or malice respective premeditation deliberation aforethought. omitted.]” [Citations 407-08, at 226 S.E. 2d 668-69. Id. Swift, supra, rationale of State v. upon holding
Based and felony-murder that our statute reject defendant’s contentions we process equal protec- constitutional due rights violates his tion. [3] discharging futher of felony contends a firearm into that the legislature occupied property did not intend be includ felony-murder underlying purposes as an
ed Assembly. was revised the General 1977 14-17 rule. In “com felony killing murder as had defined The earlier statute arson, any attempt perpetrate or perpetration mitted added.) 1949 robbery, felony” (Emphasis or other burglary, rape, 1. vague language required 299 This Sess. Laws Ch. N.C. § provided interpreting which this Court judicial interpretation, any felony to refer felony” G.S.14-17 language “other risk human and actual substantial foreseeable which “creates 202, v. Thompson, in the of life.” State N.C. ly results loss 666, expanded the The revised statute 185 S.E. 2d sup “other felonies” which would limited the listed felonies attempted “committed charge murder those port deadly Sess. Laws Ch. weapon.” the use of N.C. with I-§ unambiguous, of a statue clear language Where construction, courts must and the for judicial no room
there is McMillan, meaning. its plain (1951). the statute give contentions, Contrary to defendant’s 65 S.E. 2d the 1977 makes it clear revision unambiguous language deadly the use of a with attempted “committed felonies that weapon” under first-degree a conviction support will rule. *6 FALL TERM 1981 Defendant notes in his brief England, birthplace doctrine, abolished the rule statute in 1957. We believe represents this approach the proper response to dissatisfaction with statutory rule of law. Our General or, Assembly remains free to abolish as the Courts California, in did limit its effect to those other felonies not “in- cluded in fact within” or “forming integral part of” the 1977, however, underlying felony. As as recently legislature our chose to reaffirm clarify We offense. do not believe it is proper role this Court to or judicially abolish limit a con- stitutionally statutory valid clearly offense defined legislature.
jury that [4] Defendant contends that the court should have charged the they could return a guilty verdict only if they found defendant fired into the automobile without justification or excuse. argues that he was within his in rights at to detain the tempting they larceny victims after committed in presence. his G.S. 15A-404 provides: —
(b) When Detention private may Permitted. A person detain another person when he probable has cause to believe that the person detained has presence: committed his
(1) felony, A
(2) A breach of the peace,
(3) A involving physical injury crime to another person, (4) A involving property. crime theft or destruction (c) Manner of Detention. —The detention must be considering reasonable manner offense involved and the circumstances of the detention. While we agree authority had the detain the
victim, it impossible justify two facts make for this statute to defendant’s actions instant case. excuse “detain,” First, ordinary meaning of the word and the we our intended when it enacted G.S. meaning legislature believe 15A-404, is “To hold or in or if in keep custody.” Webster’s IN SUPREME THE COURT Wall *7 (1976). By defendant’s Dictionary 616 International Third New the exiting had store and was testimony, victim left the own the victim the first shot. Once fired lot when defendant parking control, no “hold longer could defendant beyond defendant’s was that he fired own statement was him. Defendant’s keep” victim from leav- prevent he could hope in the not that shots beer, beer back. bring the victim would with the but that ing actions, Second, attempts if to de- even viewed defendant’s victim, under the were as a matter law unreasonable tain the 15A-404(c). Even had defendant been circumstances. G.S. Cf. the victim for the misdemeanor seeking officer to arrest police no he would have had larceny packs of the two six of beer authority deadly police to the arrest. weapon to use a effect “[A force, clearly to use excessive use right had officer] a deadly to arrest one weapon, attempting which is a
pistol, misdemeanor, only the commission of is excessive charged with 470, 475, 757, Cruse, 133 759 force.” Sossamon v. (1903). N.C. 15A-401(d) deadly not does an officer to permit employ G.S. imminent presents to a misdemeanant unless an force arrest deadly by or is use of a effecting escape threat others not that a should be allowed private It follows citizen weapon. in cir- deadly fleeing force to detain a misdemeanant employ not which an officer of the law could have cumstances under Therefore, force to effect an arrest. defend- similar such employed justification to a or excuse charge upon ant was not entitled on 15A-404. based
[5] argues that his life sentence constitutes cruel dispose argument We of this on the same punishment. unusual 725, 298 259 ground stated in State v. N.C. S.E. 2d 893 Dunlap, (1979). by fixed punishment applicable statute “[I]t . . . the not to the punishment disproportionate offense 735, which Id. S.E. at 899. convicted.” 259 2d (1973)(a Cameron, 165, 200 See also S.E. 2d 186 when punishment sentence is cruel and unusual it is within law), denied, the maximum authorized cert. U.S. 2d L.Ed. S.Ct. [6] The defendant next assigns as error the failure of the trial in his judge charge presented review at trial to the effect that the shots were fired “at” or over” the victim’s “up FALL TERM 1981 automobile rather than into it and that the force of the weapon’s discharge caused the gun jerk recoil and upwards. Defendant asserts that murder, order find him guilty of first-degree felony had to find that he intended to shoot “into” the “at,” over,” Volkswagen rather than “up or “in the direction” of it.
In his charge, the trial judge noted defendant’s evidence to the effect that: took the revolver out and he fired it into the air. . . . [H]e [H]e did not intend to do anything but to stop them scaring
them, certainly and he did not intend to hit the vehicle or to *8 any hit person .... further offered evidence tending to [H]e show that he did not have the experience with this high gun caliber to fire a shot with such precision, and he did not intend to fire it either into the certainly vehicle or not to hurt anyone.
We believe this charge adequately presented to
jury
the
the
essential and substantial features of defendant’s contention that
he did not shoot into the automobile. We note first
that
the
recoil,
evidence of
gun’s
the
which was offered to show the dif-
ficulty in firing the gun with precision, was adequately stated in
Second,
the above instruction.
only
the
by
the State’s
witnesses that a shot went
over”
“up
the Volkswagen related to
the first of the three shots. The State never contended that the
vehicle,
first shot went into the
nor did the judge charge that
there was
any
evidence that
but
the second and third shots
Third,
intent,
entered the vehicle.
as to defendant’s
the judge
charged
jury
the
that
they could find defendant guilty only if
they believed from the evidence “that
willfully
the defendant
wantonly and intentionally
. . .
discharged a
. .
handgun into the
.
added.) Fourth,
vehicle.” (Emphasis
we note that
the distinction
to draw
attempts
between intentionally firing “at” the
intentionally
vehicle and
firing “into” the vehicle is meaningless.
A criminal defendant
is presumed to intend the natural conse-
Elliott,
quences
his act. State v.
232 N.C.
State Wall v. trial charge We have examined the court’s thoroughly presents find that the essential and substantial adequately of the These minor now raised discrepancies features case. trial have been called to the court’s attention. defendant should ordinarily to do would constitute a waiver. Failure so have, nonetheless, 2d We Looney, they do each of these and find that discrepancies considered the level of error. prejudicial rise to let [7] At trial defendant’s statement teenagers leave, but then to the said, “The effect hell with he started it,” only. takes the impeachment purposes admitted for Attorney’s prejudiced he was District position closing use this in his Defend argument. statement substantive objection to this at the time it was made. argument made ant At judge’s in the charge. did a correction request Neither charge, inquired whether had re end Court counsel additions. in the replied negative. corrections or Counsel quested only action regard alleged counsel’s with this error Defense for mistrial at close of jury arguments, was to move The sole this Court question which motion was denied. before whether trial court defendant’s mo denying then is erred a mistrial. tion for single challenged this place proper
In order statement *9 we of the District At- pertinent portion quote perspective, to wit: torney’s argument, Well, shooting? independent
What after happened witness who works as free lance photographer that he walked in the store and News testified Charlotte defendant, say you get somebody to the “Yes, “Did overheard say, and him I think so.” Does that sound them?” heard and, course, anything, like a man that didn’t intend to do that know he had hit says the defendant he didn’t amiss; you, but I anything or that submit anybody true, can’t because all jury, just of the that that be members They saw that window fragmented. other witnesses these the car out of con- up. They driving rev saw engine heard trol, there where the ran down to see people and other any There about Volkswagen question went. wasn’t doubt, and the de- something was amiss. There wasn’t FALL TERM 1981 fendant had the best view of that departing anybody. car of amiss, He had to know something was and how did he “Oh, behave? Did he run down there to see? my gosh, have I hurt somebody?” Did he togo anybody’s aid? He went back inside, and he called the police, but what did he tell them? He told them larceny. ambulance, about a He didn’t even call an and he didn’t tell them anything about the shooting, and what else? We conclusively know from several witnesses that said, at a point later somebody came in there and “You shot one of these He is in people. bad shape,” and what did the de- fendant do? He called somebody on phone, according two independent Hamilton, witnesses. One of them is David much, the one that Mr. Sentelle liked so and the other one is Ernest Lawrence. Those two witnesses heard the defendant pick up the phone somebody and call and lawyer, ask for a ambulance, not an lawyer; and when got down to the Dunn, police station and he talked to Officer what say? did he Dunn, said, Told Officer “I started to let them but I go, ‘The ” hell with it.’ Members of jury, if those don’t things you tell “in- tent”, I don’t know what does. person When a takes a firearm points at a vehicle pulls the trigger, the natural and logical consequences of that act are project a projec- car, intends, tile into that and a I person you, submit to natural and logical consequences of their act. that,
I you submit to if the State hasn’t proved beyond any reasonable doubt “intent” in this case with six eyewitnesses, with the defendant testifying in a manner nature, which conflicts with the laws of I then submit it can’t ever be proved.
A mistrial should be declared “if there occurs during trial . . . courtroom, conduct inside or outside the resulting substantial and irreparable prejudice to defendant’s case.” G.S. 15A-1061. In intent, light overwhelming evidence on the issue of we fail to see how defendant could have substantially been so ir *10 reparably by the prejudiced Attorney’s District argument as to render the denial of his motion for mistrial a manifest abuse of McGuire, the sound discretion of the trial court. State v. 297 N.C. 69, 165, denied, 943, 310, 254 S.E. 2d cert. 444 62 U.S. L.Ed. 2d IN THE SUPREME COURT
620
State Wall
v.
47,
(1979);
Mills,
2d
249 S.E.
App.
v.
39 N.C.
State
Defendant was
judge,
permitted
15-144. The trial
provisions
to the
statute,
possible
verdicts
jury
submitted
theory
on the
and delibera-
first-degree
premeditation
murder
felony-murder theory.
tion and
murder on the
State
first-degree
235,
v.
Sub(a), premeditation on the and basis deliberation
Answer, No.
Sub(b) first rule under the Answer, Yes. 235, 242, Warren,
In S.E. 2d N.C. (1977),this noted: Court
It is a well established that when the law and evidence rule rule, justify the use of the then the State is deliberation, required prove premeditation neither is the court to submit to required second- degree murder or unless there is manslaughter it. support Miller, (1941); also
See State 2d 522 v. Logan, supra.
The court well have might omitted instructions concern- for all the ing “premeditation deliberation” evidence discloses “by discharging killed the victim firearm into oc- *11 FALL TERM
State Wall v. felony cupied property,” by which denominated a 14-34.1. G.S. Obviously, a violation deadly of this statute entails the of a use weapon.
Since defendant was found of guilty murder in the first on theory of found guilty on the of charge first-degree murder with premeditation and deliberation, no prejudice resulted from the court’s failure to voluntary on charge manslaughter.
[9] Defendant next assigns as error the admission into evidence of photographs the victim’s injuries. Photographs, gruesome, fairly however which accurately a represent scene observed witness a and which can be used testimony to illustrate his may admitted in be evidence for il- lustrative v. purposes. State Sledge, N.C. 2d 579 (1979). The in instant case photographs were properly authen- ticated and admitted into evidence illustrative purposes. We find error their admission. argues further that was error to allow the vic-
tim’s father to identify the photographs as his son depicting his automobile son was on night driving was killed. A of not plea guilty places at issue all alleged facts the in- dictment. v. Perry, State S.E. 2d 839 testimony witness’s was relevant identity to establish the of the identify victim and to the automobile.
trial [10] court erred Defendant, his final failing assignment to declare a mistrial upon learning error, alleges that the that the was hopelessly deadlocked. The granting denial a motion for mistrial is a matter within the sound discretion McGuire, Mills, judge. the trial supra; supra. 15A-1063(2) provides: motion, Upon party motion of a own upon his a judge may declare a mistrial if:
[*] [*] [*] (2) It appears there no reasonable probability jury’s
agreement upon verdict. THE IN SUPREME COURT 15A-1235(d).
See also G.S. *12 for hours jury that the deliberated six The record indicates deliberations, jury After the first hour of the and ten minutes. instructions. When the returned to the courtroom for additional hours, a reach a after four and half jurors had failed to verdict the to into inquire the them back into courtroom judge brought eight At that time the vote stood at their numerical differences. jury gave to deadlocked, The foreman indication that four. jury to judge asked the continue delibera- and the jury again A hour later called the judge tions. little over an eleven and learned that the vote was to back into the courtroom that further judge that The foreman informed point. one at jury in unanimous verdict. The would result deliberations of guilty to its deliberations and returned verdict returned a half hour later. We fail to see how these facts disclose about We any say of are unable to that the court’s failure sort deadlock. its of a mistrial on own motion was an abuse discretion. declare 15A-1063(2); McGuire, assignment This supra. See G.S. merit. error is without that examination of the entire record discloses careful
Our error. prejudicial had a fair trial free from defendant No error. dissenting.
Justice
Copeland
has
a critical
majority
because the
overlooked
I must dissent
defendant,
wit,
sufficient
against
in
State’s case
omission
first
a conviction for murder
evidence to sustain
felony
rule.1 The
would have been
under
murder of the
guilty
felony
find
authorized to
defendant
the State had demonstrated
only
vehicle
driver-occupant
if
defendant
committed the
beyond a
doubt
reasonable
the use
involving
in the
of another
perpetration
homicide
14-17;
Womble,
v.
deadly
weapon.
See G.S.
brief,
specific point
his
but he did twice
failed
raise this
1. Defendant
judge’s
excepted
charge at
to the
move
a dismissal of the murder
trial
However,
magnitude
plain
legal
error of this
his motions.
it
that a
denials of
15A-1441,
own motion. See
upon its
G.S.
corrected
the Court
have been
should
-1446(d)(5).
-1442(3),
Appellate Procedure.
See also Rule
Rules of
North Carolina
FALL TERM 1981
State Wall
455,
In pertinent part, “[a]ny G.S. 14-34.1 provides that person willfully wantonly who discharges or attempts discharge structure, vehicle, aircraft, . . . firearm into building, [a] watercraft, device, erection, conveyance, or other equipment, enclosure while is occupied guilty felony.” of a H Class Our Court has stated that if intentionally, one violates this statute *13 excuse, legal justification without or discharges a firearm into knows, know, what he or reasonably what he should is an oc- Williams, 67, 73, structure. cupied 2d (1973). view, therefore, my In an essential of G.S. element 14-34.1 is the intent specific a firearm discharge into something. The mere intent to fire a general weapon, standing alone, Indeed, will not suffice. surely common sense would dictate whereby of interpretation the statute the act of discharging a criminally felony only firearm becomes as a culpable when that with, simultaneously by, act accompanied accomplished the reckless evil distinct or intent shoot into or an occupied inside structure of some kind.
Moreover, in accordance with my belief that a violation of described, G.S. 14-34.1 the kind requires specific just of intent I believe, majority, inherently do not as does the is “an that it in- intentionally credible that one proposition” could shoot “at” a intending vehicle fleeing without to shoot “into” it. The words and “into” generally synonymous. “at” are not considered to be (4th 1977); 139-40 Roget’s See International Thesaurus ed. (1968). fact, Dictionary Webster’s New of 70-71 In Synonyms the fundamentally usually two words different For meanings. have example, presence “at” indicates a near of something, the location or the direction of an or motion. something general action (1976); Dictionary New Webster’s Third International (1969); Dictionary American the Heritage English Language of hand, Dictionary March’s Thesaurus and On the other primarily “into” denotes motion directed at attain- specifically IN THE SUPREME COURT v. Wall in- to an or a movement something, in position being the of ing Webster, at something. supra, or to the inside terior location March, 663; 1184; at Dictionary, supra, Heritage The American Thus, actually at- one could to me that plain at 555. supra, “into” intending without shoot something “at” shoot tempt it, as an something object is a mobile such when that especially and sudden conveyance quick speed capable automotive direction, i.e., scene of Volkswagen fleeing the changes larceny.2 case, eyewitnesses testified In instant the State’s the (after had left without girl the
defendant came out store beer), Volkswagen the occupants for the hollered the paying succession, shots, the vehicle con- rapid and then fired three away lot to road. parking to move from the tinued [These Everyone only nighttime.] agreed events occurred third, second, actually car. These shot struck the possibly at, over, weapon either fired the witnesses said that defendant car, or aimed it in the direction gun held the up across the whether defendant held positively No remember car. one could the time the first shot with or two hands at pistol one that, say of the witnesses as defendant thereafter. Yet all did hands) (or shots, around jumped, jerked, his bobbed fired hand W. Dunn essential- weapon’s recoil. Officer J. moved due to by stating that a .357 ly magnum their observations corroborated jerk and that its recoil would “kicked when fired pistol up” *14 such jerking pro- He further said that was more shooter’s arm. inexperienced gun was held the with nounced if the shooter This is the total sum of what the State’s evidence only one hand. specific the essential element of criminal upon tended to show me, patently 14-34.1.To the evidence was insuf- intent under G.S. beyond to a doubt defendant inten- ficient reasonable that prove occupied a firearm into an vehicle. tionally discharged difficulty I the general In so am not inadvertent to in saying, case, any of criminal directly the existence a intent in proving subjective intent is a state of mind in that of the For since actor. reason, rely must often on the of cir- that the State nature the perceive discharge depart- 2. I one a the of further could firearm at tires a vehicle, it, ing meaning occupied to in- in order to detain without also shoot into its compartment. terior FALL TERM Wall infer act to the commission of an surrounding cumstances However, cir- such intent. requisite defendant’s possession crime must element of a upon evidence an essential cumstantial Here, substantiality. the State’s of still meet standard firing equivocal gun evidence of defendant’s intent conjecture more a mere suspicion best. It did no than raise 14-34.1,and, of of this essential element G.S. about the existence speculate jury improperly as a allowed consequence, discharging act of about the criminal nature defendant’s 316, 319, Hewitt, 294 N.C. 2d firearm. 833, also State v. See short, In evidence in considering even the State’s benefit all reasonable in- light its ferences, favorable with the most “draw” on the of intent.3 question this case constitutes a As it reasonable that defendant proven beyond was not doubt 14-34.1, necessarily follows that this should violated G.S. as a for defend- finding have been submitted to the basis 14-17.4 ant of murder in the first under G.S. I guilty conviction for the more therefore vote reverse defendant’s grievous upon ground. offense this I another concluding, compelled point am mention
Before majority argument defendant’s this rejected the case. adopt prevent doctrine which would merger Court should where, here, degree felony for first conviction See, felony is a the homicide. factually integral part underlying 3d e.g., (1970). Wesley, App. Rptr. Cal. Cal. People wisely I with the that this a matter more agree majority the enactor 14-17. Legislature, left to the discretion of G.S. strongly implementation Yet I believe that of some form the in this be a merger statutory State would sound innova- doctrine tion urge Legislature important and thus examine this of this case the need particular issue. The facts demonstrate such action. equally 3. homicide was accident was convinc- Defendant’s that the store,
ing, pistol belonged if so: the to the owner of the not more it; twenty-five years he firearm of was not familiar with (since had not shot a kind Force); in the Air the shots in the air his service United States fired back; occupants they frighten stop bring the vehicle’s so would the beer and his jerked pistol. armed each time he fired *15 felony Having insupportable, 4. I said that murder conviction would also evidentiary justification note does not for a the record disclose an homicide beyond prosecution manslaughter the levels murder. second 626 IN THE SUPREME COURT 1980, July
On 14 for reported work as usual from 6 to 2 p.m. a.m. at a convenience already store. had completed [He his regular eight-hour shift at job.] another At approximately 10:30 p.m., while three other customers were waiting pay for beer, their a teenaged girl removed some beer from the store it, without paying despite defendant’s admonishments that she should not do so. The girl got into a car which began to flee the Defendant, premises. in an to retrieve attempt the stolen proper- and, ty, took his employer’s pistol for the first time in twenty-five years, a firearm three discharged times. One of the shots entered into the vehicle and killed the driver. autopsy later disclosed [An the driver was legally intoxicated at the Defendant’s time.] However, admittedly action was rash and ill-advised. certainly distinctly was not the type deliberate and reckless criminal act causing unexpected ordinarily death which justifies applica- tion of murder rule:
The rationale of the doctrine is that one who commits a mind, felony is a person bad with a bad state of and he has result, caused a bad so that we worry should not too much about the fact that the fatal result he accomplished was quite different and a good deal worse than the bad result he in- tended. Scott, (1972). 71, LaFave & Handbook on Law Criminal at 560 § 383, (1976); Swift, State v. Compare, e.g., N.C. 2d 652 Williams, (1973);
State v. N.C. S.E. 2d 409 Capps, S.E. 730 event, In it is difficult to assent result mandating man, imprisonment this a hardworking husband and father life of five children with a good reputation community record, prior significant criminal for his action in the incident July Surely, 1980. justice would be well served the exercise of some executive clemency his case.
Justices HUSKINS and Exum in this join dissent.