State v. Moore
| Decision Date | 25 January 1974 |
| Docket Number | No. 97,97 |
| Parties | STATE of North Carolina v. William Hobert MOORE. |
| Court | North Carolina Supreme Court |
Robert Morgan, Atty. Gen. by Eugene A. Smith, Asst. Atty. Gen., Raleigh, for the State.
Herbert B. Hulse and George F. Taylor, Goldsboro, for defendant-appellant.
During the course of the trial the defendant took many exceptions to the evidence offered by the State. Particularly, the defendant objected to the introduction of his confession. However, before permitting the State to introduce the confession, the court conducted a thorough voir dire hearing in the absence of the jury. The details of this examination are set out in the factual statement. The evidence for the State disclosed the proper cautions and warnings were given by both Sergeant Brock of the Naval Investigative Service and by Mr. Poole of the State Bureau of Investigation. The defendant signed a written admission that the warnings were given and that he waived the right to have counsel present during the interrogation. He signed a confession that he forced the deceased to lie down on his stomach in the front seat of a junked automobile and fired two pistol shots into his head and neck in the course of taking his money, watch, and other articles.
The evidence on the voir dire fully justified the court's finding that the interrogating officers observed all procedural safeguards in conducting the interrogation which preceded the confession. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; State v. Carroll, 282 N.C. 326, 193 S.E.2d 85; State v. Haddock, 281 N.C. 675, 190 S.E.2d 208; State v. Mems, 281 N.C. 658, 190 S.E.2d 164; State v. Williams, 276 N.C. 703, 174 S.E.2d 503; State v. Haynes, 276 N.C. 150, 171 S.E.2d 435; State v. Meadows, 272 N.C. 327, 158 S.E.2d 638; State v. Spence, 271 N.C. 23, 155 S.E.2d 802; State v. Gray, 268 N.C. 69, 150 S.E.2d 1. The defendant's objections to the admission of his confession before the jury were properly overruled. The evidence was ample to go to the jury and to sustain the verdict. State v. Vestal, 281 N.C. 517, 189 S.E.2d 152; State v. Bell, 270 N.C. 25, 153 S.E.2d 741; State v. Stephens, 244 N.C. 380, 93 S.E.2d 431. The defendant's motion to dismiss was properly denied.
The defendant stressfully contends the court committed error in charging the jury that it might convict the defendant of murder in the first degree either upon a finding beyond a reasonable doubt that the defendant killed Corporal Casey after premeditation and deliberation, or in the perpetration of armed robbery. The specific objection is that the indictment, having charged the killing was committed after premeditation and deliberation, it was error to permit the jury to convict the defendant of murder in the first degree upon a finding the defendant killed Casey in the perpetration of the robbery.
The legal question presented by the objection to the indictment and the charge was before this Court in the case of State v. Fogleman, 204 N.C. 401, 168 S.E. 536. The indictment against Fogleman is not quoted in full in this Court's opinion. However, the record of the case on appeal discloses that the indictment contained two counts. The first count charged that '(O)n the 30th day of April, A.D., 1932, (the named defendant) with force and arms, at and in the County (Rockingham) aforesaid, unlawfully, wilfully, feloniously, premeditatedly, deliberately and of his malice aforethought, did kill and murder one W. J. Carter . . ..'
The second count charged that the named defendant, '(O)n the 30th day of April, 1932, with force and arms, at and in the County aforesaid, unlawfully, wilfully, feloniously, of his malice aforethought, and in the perpetration in the attempt to perpetrate a felony, to-wit, robbery, did kill and murder one W. J. Carter . . ..' The evidence disclosed a killing in the attempt to commit a robbery.
Judge Stack charged the jury:
'Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation, or in the perpetration of a robbery or attempt to perpetrate a robbery . . ..'
In passing on the defendant's objection to the two count indictment against Fogleman in the light of Judge Stack's charge, this Court said:
(The first count charged premeditation and deliberation.)
The Court held that the first count charging premeditation and deliberation was sufficient to embrace a killing committed in an attempt to commit robbery.
In State v. Arnold, 107 N.C. 861, 11 S.E. 990, Clark, J. (later C.J.) referring to the allegations necessary to a valid indictment for murder said: '(I)t is proper to say that under the decisions and statutes the following is full and sufficient in the body of an indictment for murder: 'The jurors for the state on their oaths present that A.B. in the county of E., did feloniously, And of malice aforethought, kill and murder C.D.' (Emphasis added.) Research discloses that State v. Arnold, supra, has been cited and approved many times in the subsequent decisions of this Court.
In State v. Craft, 168 N.C. 208, 83 S.E. 772, the Court said: 'A variance will not result where the allegations and the proof, although variant, are of the same legal significance.'
In State v. Mays, 225 N.C. 486, 35 S.E.2d 494, this Court said:
In State v. Grayson, 239 N.C. 453, 80 S.E.2d 387, the indictment charged murder in the first degree as prescribed by G.S. § 15--144, without alleging either that the killing occurred after premeditation and deliberation, or in the perpetration of a designated felony. The evidence discloses the killing occurred in the perpetration or in the attempt to perpetrate the crime of rape. The defendant, claiming error, excepted to the trial court's instruction that the jury might find the defendant guilty of murder in the first degree if committed in the perpetration or attempt to perpetrate the crime of rape. The ground of the objection was the lack of a supporting allegation in the indictment. This Court, citing Arnold, Fogleman, and Mays, held: Where the bill of indictment contains every necessary averment, there is no variance between the allegation and the proof. The Court, however, awarded a new trial for error committed in the court's charge on the defendant's plea of insanity.
Any allegations in a bill of indictment over and above that which is held sufficient may be treated as surplusage. State v. Stallings, 267 N.C. 405, 148 S.E.2d 252.
In State v. Haynes, supra, this Court held:
(Citing Arnold, Fogleman, and other cases.)
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...under the merger rule, most recently discussed in State v. McLaughlin, 286 N.C. , 213 S.E.2d 238 (1975). See also, State v. Moore, 284 N.C. 485, 202 S.E.2d 169 (1974); State v. Carroll, 282 N.C. 326, 193 S.E.2d 85 (1972); State v. Peele, 281 N.C. 253, 188 S.E.2d 326 (1972); State v. Thompso......
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