State v. Brewer

Justice MITCHELL

concurring in result.

The majority holds that the trial court properly refused to instruct on the lesser offense of involuntary manslaughter, because *583there was no evidence of involuntary manslaughter. For reasons which I have fully discussed in my dissenting opinion in State v. Thomas, 325 N.C. 583, 386 S.E.2d 555 (1989), involuntary manslaughter is not a lesser included offense of first-degree murder, when, as here, first-degree murder is submitted to the jury based solely upon the felony murder theory; this is true without regard to what the evidence may tend to show. Because the trial court — for whatever reason — permitted this case to go to the jury for its determination of whether the defendant was guilty of first-degree murder only under the felony murder theory, no instruction on lesser homicide offenses would have been proper. I concur only in the result reached by the majority.

Justice WEBB joins in this concurring opinion.