STATE of North Carolina
v.
Larry Samuel ALEXANDER.
No. 5.
Supreme Court of North Carolina.
October 10, 1973.Atty. Gen. Robert Morgan, Deputy Atty. Gen. Andrew A. Vanore, and Associate Atty. Gen. Edwin M. Speas, Raleigh, for the State.
T. O. Stennett, Charlotte, for defendant appellant.
SHARP, Justice:
Defendant does not challenge the sufficiency of the State's evidence to sustain his conviction of felony-murder, that is, a murder committed in the perpetration of an armed robbery. However, his first assignment of error is that the trial judge erred in refusing to nonsuit the charges of felonious assault and armed robbery in cases Nos. 37020 and 37021. Defendant contends that these two charges were proven as essential elements of the felony-murder for which he was convicted and sentenced to life imprisonment and that, therefore, separate judgments imposing punishment for felonious assault and armed robbery in *454 addition to the life sentence imposed for first-degree murder cannot stand.
In support of his first contention defendant cites, inter alia, 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. Thompson, 280 N.C. 202, 185 S.E.2d 666 (1972); State v. Hatcher, 277 N.C. 380, 177 S.E.2d 892 (1970). These cases, among others, clearly hold that when an accused is tried for a greater offense, he cannot be tried either simultaneously or thereafter for a lesser offense necessarily involved in, and a part of, the greater offense. This rule, however, has no application to the facts of this case.
The application of the foregoing rule to felony-murder is lucidly explained in State v. Thompson, supra. Thompson was indicted under G.S. § 14-17 for the first-degree murder of Ernest Mackey. At the same time, in a second bill, he was charged with feloniously breaking and entering a certain dwelling occupied by Mackey. Defendant was convicted of both first-degree murder and felonious breaking and entering. The State's evidence showed that the defendant killed Mackey in the perpetration of the felonious breaking and entering with which he was charged in the second bill. In arresting the judgment upon the second charge Chief Justice Bobbitt, speaking for the Court, pointed out that proof that the defendant feloniously broke into and entered the Mackey dwelling was an essential and indispensable element in the State's proof of murder committed in the perpetration of feloniously breaking and entering that particular dwelling. "The conviction of defendant for felony-murder, that is, murder in the first degree without proof of malice, premeditation or deliberation, was based on a finding by the jury that the murder was committed in the perpetration of the felonious breaking and entering. In this sense, the felonious breaking and entering was a lesser included offense of the felony-murder. Hence, the separate verdict of guilty of felonious breaking and entering affords no basis for additional punishment. If defendant had been acquitted in a prior trial of the separate charge of felonious breaking and entering, a plea of former jeopardy would have precluded subsequent prosecution on the theory of felony-murder. State v. Bell, 205 N.C. 225, 171 S.E. 50 (1933)." Id., 280 N.C. at 215-216, 185 S.E.2d at 675.
In the present case, under the trial judge's charge, defendant's conviction of felony-murder could only have been based upon a finding by the jury that defendant murdered Taylor in the course of unlawfully taking money from his person by the use of a pistol whereby he threatened and endangered Taylor's life (an armed robbery). Defendant was not charged either with the armed robbery of Taylor or with feloniously assaulting Taylor. Had he been convicted and sentenced upon either of such charges, State v. Thompson, supra, and the other cited cases would have required that the judgment be arrested. However, the armed robbery and the felonious assault for which defendant was convicted and sentenced were crimes against Martin. They were, therefore, extraneous to the first-degree murder of Taylor. Although the two robberies were committed contemporaneously, they were two separate and distinct crimes.
Likewise, the felonious assault upon Martin and the armed robbery of Martin of which defendant was convicted were two separate crimes. A conviction of armed robbery does not establish a defendant's guilt of felonious assault. In State v. Richardson, 279 N.C. 621, 185 S.E.2d 102 (1971), a case involving a factual situation analogous to this one, it is said: "The crime of robbery includes an assault on the person. . . . The crime of armed robbery defined in G.S. § 14-87 includes an assault on the person with a deadly weapon. The crime of felonious assault defined in G.S. § 14-32(a) is an assault with a deadly weapon which is made with intent to kill and which inflicts serious injury. These additional elements of the crime of felonious assault are not elements of the *455 crime of armed robbery defined in G.S. § 14-87." Id. at 628, 185 S.E.2d at 107.
Thus, if a person is convicted simultaneously of armed robbery and the lesser included offense of assault with a deadly weapon, and both offenses arise out of the same conduct, separate judgments may not be pronounced. "In such case, the armed robbery is accomplished by the assault with a deadly weapon and all essentials of this assault charge are essentials of the armed robbery charge. However, if a defendant is convicted simultaneously of armed robbery and of felonious assault under G.S. § 14-32(a), neither the infliction of serious injury nor an intent to kill is an essential of the armed robbery charge." Id. at 628, 185 S.E.2d at 108.
Defendant's first assignment of error is without merit.
Defendant's second contention, based on assignment of error 2 and 3, is that he is entitled to a new trial because the trial judge imposed upon him the sentence of life imprisonment in the absence of such a recommendation from the jury at the time it rendered its verdict that defendant was guilty of murder in the first degree.
Defendant assigns no error in the trial on the charge of murder in the first degree, and we perceive no logic in his contention that he is entitled to a new trial upon the issue of his guilt because of the sentence imposed. We hold, however, that the life sentence imposed was the only permissible judgment.
In Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (decided 29 June 1972), the Supreme Court held unconstitutional the imposition of the death sentence under statutes such as G.S. § 14-17 which permitted court or jury, in its discretion, to determine whether the punishment for first-degree murder should be life or death. Furman, however, did not affect the validity of a defendant's conviction of a capital crime; it merely deprived the Court of the power to impose the death sentence. State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973); State v. Foster, 282 N.C. 189, 192 S.E.2d 320 (1972); State v. Davis, 282 N.C. 107, 191 S.E.2d 664 (1972).
On 18 January 1973 in State v. Waddell, supra, this Court held that the effect of Furman v. Georgia, supra, upon G.S. § 14-17 was (1) to invalidate its proviso which permitted the jury, in its discretion, to substitute life imprisonment for the death penalty as the punishment for first-degree murder and (2) to make death the only permissible punishment. The Court further held, however, that because of the ex post facto nature of the Waddell decision, "North Carolina's mandatory death penalty for . . . murder in the first degree . . . may not be constitutionally applied to any offense committed prior to the date of this decision but shall be applied to any offense committed after such date [18 Jan. 1973]." Id., 282 N.C. at 446, 194 S.E.2d at 29. Thus, on 7 June 1972, the date of the homicide for which defendant has been convicted, "murder was not a capital crime; the only permissible punishment for murder in the first degree was life imprisonment." State v. Watkins, 283 N.C. 17, 32, 194 S.E.2d 800, 810 (1973). Clearly, therefore, the proper judgment was imposed upon defendant in case No. 37019. See State v. Frazier, 283 N.C. 99, 195 S.E.2d 33 (1973); State v. Miller, 281 N.C. 740, 190 S.E.2d 841 (1972) and cases cited therein.
Defendant's fourth assignment of error is that the trial court erred in failing "to declare G.S. § 14-17 unconstitutional." In his brief defendant cites no authority in support of this contention. His only argument is that when the Supreme Court of the United States invalidated the proviso of G.S. § 14-17 "the other portion (was) left in an ambiguous state" and this Court, "by its ruling of January 18, 1973 (Waddell) has only added to the confusion"; that "the death penalty is revised, which in *456 turn is contradictory to the United States Supreme Court decision." Any discussion of this assignment would serve no purpose. As we said in State v. Duncan, 282 N.C. 412, 420, 193 S.E.2d 65, 70 (1972), "[T]his same contention [that G.S. § 14-17 is unconstitutional] has been considered by this Court in a number of recent cases and has been decided adversely to defendant's contention."
In the trial below, we find
No Error.