STATE of North Carolina
v.
Donnie WILLIAMS.
No. 4.
Supreme Court of North Carolina.
October 10, 1973.*411 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 Sherrill 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, *412 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: "In 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 draw 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 *413 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, Donnie Williams shot Herman Adams with a .22 caliber rifle and thus proximately caused his death and that he, Donnie Williams, did this while committing or attempting to commit the felony of discharging a firearm into occupied property, as this has been defined for you, it would be your duty to return a verdict of guilty of murder in the first degree. If you do not so find or have a reasonable doubt as to one or both of these things, it would be your duty to return a verdict of not guilty." No portion of Carlton Adams's testimony is referred to in the charge either in the court's review of the evidence or in the statement of contentions.
The theory of the State's case, felony-murder, was based on the testimony of Sherrill Bryant, Purcell Williams and Shirley Williams. Their testimony is sharply contradicted by the testimony of Carlton Adams. Carlton Adams testified that "when Donnie Williams and the others came in" Herman Adams's store, "Herman told them to get out and he said they weren't going out and he threw up and went to shooting." (Our italics.) Carlton Adams further testified that "[o]ne shot hit [him] and [he] went down and when [he] came to there won't anybody there and Herman was lying at [his] feet dead."
Based on Carlton Adams's testimony, a jury would be permitted to find that any shooting done by defendant was done inside the poolroom in the course of a quarrel with Herman Adams concerning whether the party brought there by Bryant would have to leave the poolroom. When considered in context, the italicized word he seems to refer to Donnie Williams. It certainly refers to one of the group which included Bryant, Purcell Williams and Donnie Williams, which entered Herman Adams's poolroom about 2:00 a.m. Carlton Adams's testimony also tends to show that the shooting occurred immediately upon the arrival of these men, and that they were arrayed against Herman Adams and Carlton Adams and shot both of them. This testimony completely contradicts the testimony of Bryant and of Purcell Williams to the effect that they shot pool for an hour and a half after their arrival before any altercation developed. It also completely contradicts the testimony of Bryant to the effect that he undertook to assist Herman Adams while Herman Adams was attempting to make one Marvin Hamilton (or Raines) leave his place of business and that he was shot by Carlton Adams when he (Bryant) was helping Herman Adams. Carlton Adams's testimony also tends to show that when Bryant's party left the poolroom to drive away both Herman Adams and Carlton Adams were inside the poolroom, Herman fatally wounded and Carlton wounded and later taken to the hospital.
G.S. § 1-180 requires a trial judge to instruct the jury as to "every substantial and essential feature of the case embraced within the issue and arising on the evidence, and this without any special prayer *414 for instructions to that effect." State v. Merrick, 171 N.C. 788, 795, 88 S.E. 501, 505 (1916); State v. Ardrey, 232 N.C. 721, 723, 62 S.E.2d 53, 55 (1950); State v. Mercer, 275 N.C. 108, 116, 165 S.E.2d 328, 334 (1969).
Although defendant did not testify or offer evidence, he was entitled to an instruction applying the law to the facts stated in the testimony of Carlton Adams. Carlton Adams's testimony, if accepted, disclosed facts sufficient in law to constitute a complete defense to murder committed in the perpetration of the felony created by G.S. § 14-34.1. Too, if the fatal shooting of Herman Adams occurred inside of his poolroom, and if the jury found beyond a reasonable doubt that defendant fired the shot that killed Herman Adams, the defendant would not be guilty of more than murder in the second degree in the absence of proof that the killing was intentional and with premeditation and deliberation. The court's failure to instruct as to the applicable law arising on the evidence of Carlton Adams applies equally to both indictments. For error in this respect, the verdicts and judgments are vacated and defendant is awarded a new trial in each case.
In view of the fact that the court pronounced separate judgments as set out in our preliminary statement, we deem it appropriate to note that when a felony within the purview of G.S. § 14-34.1 is relied upon as an essential of and the basis for the conviction of a defendant for murder in the first degree under the felony-murder rule, no additional punishment can be imposed for such felony as an independent criminal offense. State v. Thompson, supra, 280 N.C. at 217, 185 S.E.2d at 676; State v. Peele, 281 N.C. 253, 260, 188 S.E.2d 326, 331-332 (1972); State v. Carroll, 282 N.C. 326, 333, 193 S.E.2d 85, 89 (1972).
New trial.
HUSKINS, J., dissents.