concurring.
I concur in the result reached by the majority but for different reasons.
A review of the history of this appeal is helpful to an understanding of the issues involved.
1. On 24 August 1981 Connie Smith, Tyler Todd, and Sharon Sager were found murdered in a residence located at 6080-A Kentucky Court in the Watkins Village housing area of the Camp Lejeune Marine Corps base. The victims were the defendant’s aunt, his twelve year old sister, and his cousin.
2. On 24 August 1981 this defendant was fifteen years of age and resided with his mother and two sisters on the Marine Corps base at Camp Lejeune.
3. The defendant was immediately a suspect in the case. However, federal authorities evidently concluded that they did *170not have sufficient evidence to proceed, and by 1983 they had lost track of this defendant altogether.
4. Sometime after the murders, defendant Smith moved with the remainder of his family to Oregon.
5. In 1986 defendant wanted to join the Oregon National Guard. That organization contacted Camp Lejeune for copies of defendant’s medical records. Upon receipt of the records which included psychiatric reports, defendant was turned down for the National Guard. Defendant’s mother contacted Camp Lejeune and asked that the investigation concerning defendant be closed so that he could “get on with his life.” Agents from the Naval Investigative Service contacted defendant and conducted a number of interviews with him. At one of those interviews, defendant made incriminating statements concerning the murders and was arrested on 30 June 1986.
6. On 7 July 1986 Samuel T. Currin, United States Attorney, through his assistant, M.F. Bogdanos, filed a certificate with the Federal Court for the Eastern District of North Carolina certifying “no Juvenile Court or other appropriate court of any state including the General Court of Justice of the State of North Carolina has jurisdiction over said juvenile with respect to the acts of juvenile delinquency alleged in this case, such acts having occurred on Marine Corps base at Camp Lejeune, North Carolina, a military reservation acquired for the use of the United States and under exclusive jurisdiction thereof.”
7. On 8 July 1986 the federal government filed a “juvenile information” charging defendant with these three murders, and a magistrate found probable cause to believe that “the juvenile committed the offenses alleged.”
8. On 22 July 1986 the U.S. District Judge entered an order upon motion of the government transferring this case to the District Court for trial of the defendant as an adult. This order was appealed to the United States Court of Appeals, Fourth Circuit.
9. On 26 May 1987 the United States Court of Appeals, Fourth Circuit, entered a decision reversing the order of the trial court transferring this defendant’s case for trial as an adult. The court held that at the time of the commission of these alleged crimes (24 August 1981) there was no provision in. *171the Federal Juvenile Delinquency Act which would permit the transfer of a juvenile’s case to the District Court for trial as an adult. Although the statute in effect in 1981 was amended in 1984 to allow such transfer, the amendment could not be applied to this defendant for these alleged crimes as that would constitute a violation of the ex post facto clause of the United States Constitution. United States v. Juvenile Male, 819 F.2d 468 (4th Cir. 1987).
10. On 6 July 1987 the United States District Judge entered an order granting leave to the government to dismiss the juvenile information, and this dismissal was taken by the government.
11. On 7 July 1987 the United States government procured a true bill of indictment from the grand jury charging this defendant with three counts of murder in the first degree involving these alleged killings and a fourth count of escape.
12. On 8 July 1987 the defendant made a motion to dismiss the bills of indictment which was denied by the Federal Court on 3 December 1987. Notice of Appeal was taken to the United States Court of Appeals, Fourth Circuit.
13. The Court of Appeals on 12 July 1988 reversed the District Court Judge ordering that the three murder charges should have been dismissed.
14. On 14 December 1988 the United States District Judge entered an order pursuant to the Fourth Circuit opinion dismissing the three murder charges against this defendant. The theory of the Fourth Circuit decision was that the initiation of the juvenile proceedings against this defendant, which the government had previously dismissed, prevented the government from later prosecuting him as an adult by way of a bill of indictment.
15. Thereafter, on 12 January 1989 the government dismissed the escape charge with the consent of the Federal Court.
16. On 13 December 1988 the Onslow County grand jury returned indictments charging defendant with the 24 August 1981 murders of his aunt, cousin, and sister.
17. Defendant entered pleas of not guilty at his arraignment on 25 January 1989.
*17218. On 13 February 1989 defendant filed two motions to dismiss for lack of jurisdiction.
19. On 23 February 1989 Judge Strickland denied these motions. Whereupon the case was appealed to this Court.
At the outset, the validity of State v. DeBerry, 224 N.C. 834, 32 S.E.2d 617 (1945), is not necessary to a resolution of this appeal. This Court in DeBerry only held that N.C.G.S. §§ 104-1 and 104-7 did not apply to property acquired by the United States in 1899, years before the statutes were adopted. The case at bar is not concerned with the retroactivity of the statutes. The “unqualified consent” by the state to the federal acquisition of the post office property in DeBerry was based upon legislation adopted in 1887, not N.C.G.S. § 104-7. DeBerry is not relevant to the issue before the Court at this time.
The legal issue involved in this case is not the guilt or innocence of the defendant of the murders in question. The defendant has made a judicial stipulation that on 24 August 1981 the three victims were found murdered in a residence on the Marine Corps base at Camp Lejeune. The only question remaining as to guilt or innocence is whether this defendant was the perpetrator of the three murders, or any one or more of them. Defendant has made incriminating statements to Naval Investigative Service agents from which a jury could conclude that defendant was the person who perpetrated the crimes.
The issue before this Court is whether the Superior Court of Onslow County had jurisdiction to try this defendant upon the bills of indictment returned against him for the murders. The resolution of this issue depends upon this Court’s interpretation of the United States Constitution, state and federal statutes, and the acts of the state and federal governments with respect to the acquisition of the land by the United States government upon which Camp Lejeune is now situated and within which the murders in this case occurred.
At the time of the murders in question there was no provision in the Federal Juvenile Delinquency Act for the trial of a juvenile as an adult when charged with such serious offenses as murder. The most that the federal government could do under the Federal Juvenile Delinquency Act at that time was to have a juvenile delinquency adjudication proceeding.
*173The United States government in 1981, at the time of these crimes, had no provision to try as an adult a juvenile who had committed three murders. Under the law of North Carolina in 1981, the defendant could be tried as an adult for the offense of murder. Where there is a gap in jurisdiction of the United States, upon the ceding of territorial jurisdiction by the state to the United States, the state retains its underlying territorial jurisdiction over the area in question insofar as the exercise of such jurisdiction by the state does not interfere with the activities of the federal government in carrying out its duties upon the federal enclave. However, the Federal Assimilative Crimes Act cures this gap in the federal jurisdiction. This act reads:
Laws of States adopted for areas within Federal jurisdiction
Whoever within or upon any of the places now existing or hereafter reserved or acquired .as provided in section 7 of this title [18 USC § 7], is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.
18 U.S.C. § 13 (1948).
The provisions of this Act have been in effect since 1825. The purpose of this statute is to provide for punishment in the federal courts, as an offense against the United States, of offenses committed within federal enclaves, but only in the way and to the extent that the offense in question would have been punishable if committed within the jurisdiction of the state. United States v. Press Publishing Co., 219 U.S. 1, 55 L. Ed. 65 (1910). It provides criminal laws for federal enclaves by use of the state law to fill gaps in federal criminal law. United States v. Brown, 608 F.2d 551 (5th Cir. 1979). Where Congress has failed to pass specific criminal legislation, the Act is used to fill the gaps in criminal law in federal enclaves. United States v. Fulkerson, 631 F. Supp. 319 (D. Haw. 1986).
In 1981, the federal law failed to provide for the trial of a juvenile for the crime of murder committed within a federal enclave. The juvenile could only be proceeded against under the Federal *174Juvenile Delinquency Act. Such proceedings are civil rather than criminal. Kent v. United States, 383 U.S. 541, 16 L. Ed. 2d 84 (1966). The juvenile court basically is determining the needs of the child and society rather than adjudicating criminal conduct or fixing criminal responsibility, guilt, or punishment. Id. Thus, in 1981, the federal laws failed to provide for the trial of this defendant, a juvenile, on criminal charges of murder.
To the contrary, North Carolina in 1981 did provide for the trial of a juvenile for the crime of murder. The statute, passed in 1979, reads:
The court after notice, hearing, and a finding of probable cause may transfer jurisdiction over a juvenile 14 years of age or older to superior court if the juvenile was 14 years of age or older at the time he allegedly committed an offense which would be a felony if committed by an adult. If the alleged felony constitutes a capital offense and the judge finds probable cause, the judge shall transfer the case to the superior court for trial as in the case of adults.
N.C.G.S. § 7A-608 (1989).
Therefore, by applying the Federal Assimilative Crimes Act, thereby incorporating N.C.G.S. § 7A-608 as a part of the federal criminal law, the United States had jurisdiction to try this defendant for the capital charges of murder. Because the federal government thereby had jurisdiction to try this defendant on the murder charges, the state lacked jurisdiction to do so.
Inexplicably, counsel and the court failed to recognize and apply the Federal Assimilative Crimes Act in deciding and reviewing the issue of whether this defendant could be tried as an adult in the federal court for these three murders. See United States v. Juvenile Male, 819 F.2d 468 (4th Cir. 1987). Had the federal court done so, these murder cases could have been adjudicated in 1987. Nevertheless, the actions of the federal court cannot serve to expand the jurisdiction of the courts of this state.
For these reasons, I concur in the result.