State v. Lowe, 2

• Decision Date: 17 October 1978
• Docket Number: No. 2,2
• Citation: 295 N.C. 596,247 S.E.2d 878
• Parties: STATE of North Carolina v. Freddy Vance LOWE.
• Court: North Carolina Supreme Court

Page 878

247 S.E.2d 878

295 N.C. 596

STATE of North Carolina v. Freddy Vance LOWE.

No. 2.

Supreme Court of North Carolina.

Oct. 17, 1978.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Thomas F. Moffitt, Raleigh, for the State.

Frederick J. Sternberg, Graham, for defendant-appellant.

BRITT, Justice.

By his first assignment of error defendant contends that the indictment upon which he was tried is insufficient to charge him with first-degree rape under G.S. 14-21 and that his motion in arrest of judgment was therefore improperly denied. He argues that G.S. 15-144.1, a newly enacted statute which purports to prescribe the essentials for a bill of indictment for rape, must be construed to require allegation of each statutory element of the degree of rape sought to be charged under G.S. 14-21 if the indictment is to be saved from constitutional infirmity. He contends that an indictment which does not allege every element of the charged offense is constitutionally inadequate as it fails to give notice of the offense sufficient to enable a defendant to prepare his defense and to protect him from double jeopardy.

G.S. 15-144.1, which became effective 1 July 1977, provides:

§ 15-144.1. Essentials of bill for rape. (a) In indictments for rape it is not necessary to allege every matter required to be proved on the trial; but in the body of the indictment, after naming the person accused, the date of the offense, the county in which the offense of rape was allegedly committed, and the averment "with force and arms," as is now usual, it is sufficient in describing rape to allege that the accused person unlawfully, willfully, and feloniously did ravish and carnally know the victim, naming her, by force and against her will and concluding as is now required by law. Any bill of indictment containing the averments and allegations herein named shall be good and sufficient in law as an indictment for rape in the first degree and will support a verdict of guilty of rape in the first degree, rape in the second degree, assault with intent to commit rape or assault on a female.

This statute, enacted after the 1973 revision of G.S. 14-21 which divided rape into degrees, clearly authorizes an indictment for first-degree rape which omits averments (1) that the offense was perpetrated with a deadly weapon or by inflicting serious bodily injury or (2) that the defendant's age is greater than sixteen. Proof of these two elements is essential to a conviction for first-degree rape. G.S. 14-21.

While we have not previously passed upon the constitutional validity of the abbreviated form of indictment for rape authorized by this statute, we have long approved G.S. 15-144, a similar statute authorizing a short-form indictment for homicide and the model upon which G.S. 15-144.1 was drafted. State v. Moore, 104 N.C. 743, 10 S.E. 183 (1890); State v. Brown, 106 N.C. 645, 10 S.E. 870 (1890); State v. Arnold, 107 N.C. 861, 11 S.E. 990 (1890). Discussing that earlier modification of the common law rules governing indictments, this court said:

. . . The indictment would not be good at the common law, because it does not charge the means whereby the prisoner slew the deceased, nor the manner of the slaying, but it is in every material respect such as the statute (Acts 1887, ch. 58) prescribes and declares shall be sufficient. It is, in substance an effect, a formal accusation of the prisoner of the crime specified. It was presented by a grand jury; it shows upon its face the facts that gave the court jurisdiction; it charges, in words having precise legal import, the nature of the offense charged; it specifies with certainty the person charged to have been murdered by the prisoner. By it he was put on notice and could learn of the charge he was called upon to answer; he could learn from it how to plead and make defense. The reasons of the perpetration of the crime and the manner of its perpetration are of the incidents not of the substance of the crime charged. To charge them might facilitate the defense, but this is not essential to it; it is essential that the substance of the crime shall be charged; this gives sufficient notice to put the prisoner on inquiry as to all the incidents and every aspect of it. Nor does this in any degree abridge or militate against the provisions of the Constitution (Art. I, sec. 12), which provides that "No person shall be put to answer any criminal charge, except as hereinafter allowed, but by indictment presentment or impeachment." The mere form of the indictment any particular form is not thus made essential. The purpose is to require that the party charged with crime by indictment shall be so charged by a grand jury as that he can learn, with reasonable certainty the nature of the crime of which he is accused, and make defense. As we have said, it is not necessary in doing so to charge the particular incidents of it the particular means employed in perpetrating, and the particular manner of it and thus compel the State to prove that it was done with such particular means and in such way, and in no other. Such particularity might defeat or delay justice in many cases, as, indeed, it has sometimes done.

The Constitution (Art. IV, sec. 12) confers upon the General Assembly power to regulate and prescribe criminal as well as civil procedure, not inconsistent with its provisions, "of all the courts below the Supreme Court." The form of the indictment prescribed by the statute (Acts 1887, ch. 58) is not inconsistent with any provision of the Constitution. It is sufficient to serve the purpose intended by it, and it is not our province to determine that it is better or worse than the common-law indictment in such cases. . . . Moore, supra, 104 N.C. at 750-751, 10 S.E. at 185-186.

This rationale is persuasive in our consideration of G.S. 15-144.1, but standing alone it cannot control our decision. Moore did not relieve the State of the burden of alleging each element of murder; rather it eliminated the requirement that the means by which the decedent was slain be alleged. The case was decided before the adoption in this State of a statute dividing murder into degrees. Absent such a statute all murder was defined as killing with Malice aforethought. State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1970). Thus, the Act of 1887, c. 58, now G.S. 15-144, required the allegation of malice aforethought as well as allegation of every other element of the common law crime of murder.

In the Act of 1893, cc. 85 and 281, however, the legislature divided murder into degrees. Section 3 of the Act provided that the new murder statute should not be construed to require any alteration or modification of the form of indictment for murder. In construing this new murder statute it was said that the common law definition of murder was still applicable to murder in the second degree, but that an additional element that the killing be willful, premeditated and deliberate must be proven to convict a defendant of murder in the first degree. State v. Rhyne, 124 N.C. 847, 33 S.E. 128 (1899).

Despite the statutory addition of this new element, indictments for first-degree murder under the form provided in G.S. 15-144 have been upheld. In doing so the court has relied on the legislative mandate of Chapter 85, Section 3 of the 1893 Session Laws. State v. Covington, 117 N.C. 834, 23 S.E. 337 (1895); State v. Kirksey, 227 N.C. 445, 42 S.E.2d 613 (1947). It is now clear that by virtue of G.S. 15-144 premeditation and deliberation do not have to be alleged in an indictment for first-degree murder. State v. Duncan, 282 N.C. 412, 193 S.E.2d 65 (1972). Nor can the term "malice aforethought", which is used in an indictment conforming to G.S. 15-144, "be held to import into the definition (of first-degree murder) the element of premeditation or deliberation. Indeed, it is rather definitely indicated that it relates rather to the prior existence of the malice which motivates the murder than to a previously entertained purpose." State v. Smith, 221 N.C. 278 290, 20 S.E.2d 313, 320 (1942); State v. Hightower, 226 N.C. 62, 36 S.E.2d 649 (1946); 6 Strong's Index 3d, Homicide § 4, pp. 530-531.

This form of indictment has also been held sufficient to support a conviction for felony murder, State v. Lee, 277 N.C. 205, 176 S.E.2d 765 (1970), or for conspiracy to commit murder, State v. Graham, 24 N.C.App. 591, 211 S.E.2d 805, Cert. denied, 287 N.C. 262, 214 S.E.2d 434 (1975).

Read together, Moore, Covington, and the subsequent cases upholding the validity of indictments under G.S. 15-144 implicitly affirm the power of the legislature to relieve the State of the common law requirement that every element of the offense be alleged. The decisions in those cases, and likewise, our decision in the case Sub judice, are grounded on the proposition that within constitutionally mandated parameters the legislature has the power to prescribe the form of a bill of indictment. State v. Harris, 145 N.C. 456, 59 S.E. 115 (1907); State v. Holder, 153 N.C. 606, 69 S.E. 66 (1910). In Harris, the court stated this rule explicitly: "The General Assembly has the undoubted right to enact legislation of this character, to modify old forms of bills of indictment, or to establish new ones, provided the form established is sufficient to apprise the defendant with reasonable certainty of the nature of the crime of which he stands charged. 'To be informed of the accusation against him' is the requirement of our Bill of Rights, and unless such legislation is in violation of this principle or in contravention of some express constitutional provision, it should and must be upheld by the courts." Harris, supra, 145 N.C. at 457-458, 59 S.E. at 116.

In enacting G.S. 15-144.1 the legislature prescribed a new form of indictment for rape. Prior to this enactment it was necessary that an indictment for rape contain allegations of every element of the offense. State v. Goss, 293...