State v. Thompson

• Decision Date: 14 January 1972
• Docket Number: No. 135,135
• Parties: STATE of North Carolina v. Artie Gilbert THOMPSON.
• Court: North Carolina Supreme Court

Page 666

185 S.E.2d 666

280 N.C. 202

STATE of North Carolina v. Artie Gilbert THOMPSON.

No. 135.

Supreme Court of North Carolina.

Jan. 14, 1972.

Atty. Gen. Robert Morgan and Deputy Atty. Gen. Andrew A. Vanore, Jr., for the State.

James M. Shannonhouse, Jr., Charlotte, for defendant appellant.

BOBBITT, Chief Justice.

Defendant assigns as error the court's denial of his motion under G.S. § 15--173 for judgment as in case of nonsuit in respect of each of the three charges. The evidence, when considered in the light most favorable to the State, required submission of the murder charge. Whether the court should have submitted felonious breaking and entering and felonious larceny as separate criminal offenses will be considered below.

With reference to the murder indictment, the court instructed the jury they could return a verdict of guilty of murder in the first degree, or a verdict of guilty of murder in the first degree with a recommendation that the punishment be imprisonment for life, or a verdict of not guilty. Defendant assigns as error the court's failure to instruct the jury on the lesser included crimes of murder in the second degree and manslaughter.

An indictment for murder in the form prescribed by G.S. § 15--144 is sufficient to support a verdict of guilty of murder in the first degree if the jury finds from the evidence beyond a reasonable doubt that defendant killed the deceased with malice and after premeditation and deliberation Or in the perpetration or attempt to perpetrate 'any arson, rape, robbery, burglary or other felony.' State v. Haynes, 276 N.C. 150, 156, 171 S.E.2d 435, 439 (1970), and cases cited; State v. Lee, 277 N.C. 205, 212, 176 S.E.2d765, 769 277 N.C. 205, 212, 176 S.E.2d 765, 769 and offered evidence tending to show, that defendant killed Ernest Mackey while defendant was engaged in the perpetration of the crimes of felonious breaking and entering and felonious larceny. In respect of the indictment and trial for murder, variances between the allegations in the separate two-count indictment and the evidence are immaterial. These variances are considered below in determining whether defendant was properly tried, convicted and sentenced for felonious breaking and entering and for felonious larceny as separate crimes in addition to the crime of murder.

G.S. § 14--17 provides in pertinent part that '(a) murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing, Or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary Or other felony, shall be deemed to be murder in the first degree. . . .' (Our italics.)

'It is evident that under this statute (G.S. 14--17) a homicide is murder in the first degree if it results from the commission or attempted commission of one of the four 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, 305, 56 S.E.2d 649, 652 (1949). A murder committed in the perpetration or attempt to perpetrate any felony within the purview of G.S. § 14--17 is murder in the first degree, irrespective of premeditation or deliberation or malice aforethought. State v. Maynard, 247 N.C. 462, 469, 101 S.E.2d 340, 345 (1958), and cases cited.

Decisions holding that homicides committed in the perpetration or attempt to perpetrate the specified felonies of arson, burglary, rape and robbery constitute murder in the first degree are cited in State v. Streeton, supra, 231 N.C. at 305--306, 56 S.E.2d at 653. Subsequent cases to like effect include the following: rape, State v. Rogers, 233 N.C. 390, 64 S.E.2d 572, 28 A.L.R.2d 1104 (1951); State v. Grayson, 239 N.C. 453, 80 S.E.2d 387 (1954); State v. Davis, 253 N.C. 86, 116 S.E.2d 365 (1960); State v. Crawford, 260 N.C. 548, 133 S.E.2d 232 (1963); robbery, State v. Rogers, supra; State v. Maynard, supra; State v. Bunton, 247 N.C. 510, 101 S.E.2d 454 (1958); State v. Bailey, 254 N.C. 380, 119 S.E.2d 165 (1961); State v. Hill, 276 N.C. 1, 170 S.E.2d 885 (1969); State v. Henderson, 276 N.C. 430, 173 S.E.2d 291 (1970); State v. Fox, 277 N.C. 1, 175 S.E.2d 561 (1970); State v. Rich, 277 N.C. 333, 177 S.E.2d 422 (1970).

Decisions holding that homicides committed in the perpetration or attempt to perpetrate unspecified felonies constitute murder in the first degree include the following: Kidnapping, State v. Streeton, supra; felonious escape, State v. Lee, supra; sodomy, State v. Doss, 279 N.C. 413, 183 S.E.2d 671 (1971).

In State v. Covington, 117 N.C. 834, 23 S.E. 337 (1895), the indictment for murder was in the form prescribed by G.S. § 15--144. The felony-murder aspect of the case was submitted as murder pursuant to a felonious breaking and entering of a store with intent to commit the crime of larceny therein. In State v. Kelly, 216 N.C. 627, 6 S.E.2d 533 (1940), the indictment charged murder committed by defendant 'while engaged in the perpetration of the crime of store breaking and larceny,' but the felony-murder aspect of the case was submitted as murder committed by defendant while engaged in the perpetration of the crime of robbery.

The only evidence of the circumstances under which Ernest Mackey was killed was offered by the State. It tends to show that defendant feloniously broke into and entered Cecil Mackey's apartment; that he committed the crime of felonious larceny therein; and that, while upstairs in the Mackey apartment, defendant shot and killed Ernest Mackey. The fatal wound was inflicted under circumstances not disclosed by the evidence. Both Sings and Willie Mae testified that defendant stated that he had shot the boy. According to Sings, defendant told him the 'gun just went off' and 'he didn't know why the gun went off.' Accoring to Willie Mae, defendant told Sings he had to shoot the boy 'because when he was going back in the house the boy could see him and he could identify him.'

We consider first whether the felonious breaking and entering and the felonious larceny disclosed by the evidence are felonies within the purview of G.S. § 14--17. Under the evidence, defendant was guilty of felonious larceny only if the larceny was committed pursuant to a felonious breaking and entering. G.S. § 14--70; G.S. § 14--72(b)(2); G.S. § 14--54(a). (There was no evidence that the property stolen had a value in excess of $200.00.) The crimes of felonious breaking and entering and of felonious larceny herein were interrelated and committed as successive events in a continuing course of conduct. The court instructed the jury that they would not consider whether defendant was guilty of felonious larceny unless they first found that he was guilty of felonious breaking and entering. The court also instructed the jury that they should return a verdict of guilty of murder in the first degree if satisfied beyond a reasonable doubt that defendant shot and fatally injured Ernest Mackey 'while committing or attempting to commit the felony of breaking into or entering the apartment of Mackey . . . or during the felonious larceny'; and that if they failed so to find they would return a verdict of not guilty.

We have held that a felony which is inherently dangerous to life is within the purview of G.S. § 14--17 although not specified therein. State v. Streeton, supra; State v. Lee, supra; State v. Doss, supra. However, as indicated in State v. Doss, supra, 279 N.C. at 427, 183 S.E.2d at 679, no decision of this Court purports to hold that the only unspecified felonies within the purview of G.S. § 14--17 are felonies which are inherently dangerous to life. In our view, and we so hold, any unspecified felony is within the purview of G.S. § 4--17 if the commission or attempted commission thereof creates any substantial foreseeable human risk and actually results in the loss of life. This includes, but is not limited to, felonies which are inherently dangerous to life. Under this rule, any unspecified felony which is inherently dangerous to human life, or foreseeably dangerous to human life due to the circumstances of its commission, is within the purview of G.S. § 14--17. In a discussion of the 'Felony-Murder Rule,' Professor Perkins states: 'One who is perpetrating a felony which seems not of itself to involve any element of human risk, may resort to a dangerous method of committing it, or may make use of dangerous force to deter others from interfering. If the dangerous force thus used results in death, the crime is murder just as much as if the danger was inherent in the very nature of the felony itself.' R. Perkins, Criminal Law 34 (1957).

In the present case, the evidence tends to show that defendant, armed with a pistol, feloniously broke into and entered the Mackey apartment; that he committed the crime of felonious larceny therein; and that while upstairs in said apartment he came upon Ernest Mackey and shot and killed him. These crimes of felonious breaking and entering, and felonious larceny, Committed under these circumstances, created substantial foreseeable human risks and therefore were unspecified felonies within the purview of G.S. § 14--17.

We consider next whether the evidence shows the fatal wound was inflicted while defendant was engaged In the perpetration of, or attempt to perpetrate, the crimes of felonious breaking and entering and of felonious larceny. An interrelationship between the felony and the homicide is prerequisite to the application of the felony-murder doctrine. 40 C.J.S. Homicide § 21b, at 870; Perkins, op. cit. at 35. 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,...