State v. Williams

• Decision Date: 10 October 1973
• Docket Number: No. 4,4
• Parties: STATE of North Carolina v. Donnie WILLIAMS.
• Court: North Carolina Supreme Court

Page 409

199 S.E.2d 409

284 N.C. 67

STATE of North Carolina v. Donnie WILLIAMS.

No. 4.

Supreme Court of North Carolina.

Oct. 10, 1973.

Atty. Gen. Robert Morgan and Associate Attys. Russell G. Sherrill, III, and Ralf F. Haskell, Raleigh, for the State.

Barringer, Howard & Gruber by Thomas L. Barringer, Raleigh, for defendant appellant.

BOBBITT, Chief Justice.

Defendant excepted to and assigns as error the court's denial of his motions for judgments as in case of nonsuit.

When considered in the light most favorable to the State, there was evidence sufficient to permit a jury to find that defendant, in violation of G.S. § 14--34.1, discharged Sherill Bryant's .22 rifle into the building in which Adams's poolroom was operated and which was then occupied by Herman Adams and by Carlton Adams; that he did so wilfully and wantonly; and that the bullet so discharged by defendant proximately caused the death of Herman Adams. Defendant's motions for nonsuit were properly overruled.

G.S. § 14--34.1 provides: 'Discharging firearm into occupied property.--Any person who wilfully or wantonly discharges a firearm into or attempts to discharge a firearm into any building, structure, vehicle, aircraft, watercraft, or other conveyance, device, equipment, erection, or enclosure while it is occupied is guilty of a felony punishable as provided in § 14--2.'

The issue submitted to the jury was whether defendant was guilty of murder in the first degree on the ground that he was guilty of committing the felony defined in G.S. § 14--34.1 and in the perpetration thereof shot and killed Herman Adams.

G.S. § 14--17 defines murder in the first degree as follows: '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.) 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 without proof of an intentional killing with malice after premeditation and deliberation. State v. Maynard, 247 N.C. 462, 469, 101 S.E.2d 340, 345 (1958), and cases cited.

Is the criminal offense created by G.S. § 14--34.1 a felony within the purview of G.S. § 14--17?

There are many decisions of this Court which hold 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. State v. Thompson, 280 N.C. 202, 209--210, 185 S.E.2d 666, 671 (1972), and cases cited. Too, we have held that homicides constitute murder in the first degree when committed in the perpetration or attempt to perpetrate the following Unspecified felonies: kidnapping, State v. Streeton, 231 N.C. 301, 56 S.E.2d 649 (1949); felonious escape, State v. Lee, 277 N.C. 205, 176 S.E.2d 765 (1970); sodomy, State v. Doss, 279 N.C. 413, 183 S.E.2d 671 (1971); feloniously breaking into a store or dwelling with intent to commit larceny, State v. Covington, 117 N.C. 834, 23 S.E. 337 (1895); State v. Kelly, 216 N.C. 627, 6 S.E.2d 533 (1940); State v. Thompson, Supra.

In State v. Thompson, Supra, 280 N.C. at 211, 185 S.E.2d at 672, the opinion states: 'On our view, and we so hold, any unspecified felony is within the purview of G.S. § 14--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.'

G.S. § 14--34.1 refers to the wilful or wanton discharge or attempt to discharge the firearm 'into any building, structure, vehicle, aircraft, watercraft, or other conveyance, device, equipment, erection, or enclosure while it is occupied.' In a factual situation involving the actual discharge of a firearm into an occupied building, we must decide (1) what conduct constitutes the felony created by G.S. § 14--34.1, and (2) whether such felony is an unspecified felony within the purview of G.S. § 14--17. In making these determinations, we are mindful (1) that criminal statutes are to be construed strictly, and (2) that application of the felony-murder rule supplants the necessity for proof of an intentional killing with malice after premeditation and deliberation.

The protection of the occupant(s) of the building was the primary concern and objective of the General Assembly when it enacted G.S. § 14--34.1. This statute is not violated unless the accused discharges or attempts to discharge the firearm into a building While it is occupied.

In our view, the words 'wilful' and 'wanton' refer to elements of a single crime. Ordinarily, "(w)ilful' as used in criminal statutes means the wrongful doing of an act without justification or excuse, or the commission of an act purposely and deliberately in violation of law.' State v. Arnold, 264 N.C. 348, 141 S.E.2d 473 (1965). 'Wantonness . . . connotes intentional wrongdoing. . . . Conduct is wanton when in conscious and intentional disregard of and indifference to the rights and safety of others.' Hinson v. Dawson, 244 N.C. 23, 28, 92 S.E.2d 393, 396--397 (1956). The attempt to drew a sharp line between a 'wilful' act and a 'wanton' act in the context of G.S. § 14--34.1 would be futile. The elements of each are substantially the same.

We hold that a person is guilty of the felony created by G.S. § 14--34.1 if he intentionally, without legal justification or excuse, discharges a firearm into An occupied building with knowledge that the building is then occupied by one or more persons or when he has reasonable grounds to believe that the building might be occupied by one or more persons.

When G.S. § 14--34.1 is so construed, we are of opinion, and so hold, that the violation thereof is an unspecified felony within the purview of G.S. § 14--17.

We note that prior to the enactment of G.S. § 14--34.1, a killing caused by conduct which now constitutes a violation of this statute would not have been more than murder in the second degree in the absence of proof that The killing was intentional and with premeditation and deliberation. State v. Capps, 134 N.C. 622, 46 S.E. 730 (1904).

Since the question now decided is one of first impression, it is understandable that the trial judge failed to instruct the jury in accordance with the interpretation of G.S. § 14--34.1 set forth above.

Defendant excepted to and assigns as error this excerpt from the charge: '(T) here are three possible verdicts which you might return. You may find the defendant guilty of first degree murder with no recommendation; guilty of first degree murder with recommendation of life imprisonment; or not guilty.' (Note: This case was tried prior to the decision on 29 June 1972 of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346.)

The quoted excerpt must be considered in relation to the portion of the charge which preceded it, to wit: '(I)f you find from the evidence beyond a reasonable doubt that on or about the 10th day of April, 1971...