stating in case involving burglary and larceny that underlying felony must be "inherently dangerous to human life, or foreseeably dangerous to human life due to the circumstances of its commission"
How later courts described this case
- stating in case involving burglary and larceny that underlying felony must be "inherently dangerous to human life, or foreseeably dangerous to human life due to the circumstances of its commission"
- arresting judgment on felonious breaking and entering and felonious larceny convictions where those convictions provided basis for felony murder conviction
- all addressing the merger of an underlying felony with the greater crime of murder in the first degree
- felony underlying homicide must be inherently dangerous
Written by the judges who cited it.
Later courts went against this
Superseded by statute, as recognized in State v. Davis
280 N.C. 202, 212, 185 S.E.2d 666, 673 (1972), superseded by statute as stated in State v. Davis, 305 N.C. 400, 290 S.E.2d 574 (1982)) (other internal quotations omitted).
The opinion
Justice Higgins
concurring.
The defendant was tried on two bills of indictment consolidated for the purpose of trial. The bill in No. 71-CR-9360 charged that on February 9,1971, the defendant feloniously, wil-fully and of his malice aforethought did kill and murder Ernest Mackey. The bill in No. 71-CR-18932 contained two counts. The first count charged that on February 9, 1971, the defendant did feloniously break and enter a specifically described dwelling-house occupied by Ernest Mackey for the purpose of stealing personal property therein contained. The second count charged larceny of certain specifically described articles of the personal property of Ernest Mackey.
Indictment in the murder case was drawn according to the provisions of G.S. 15-144 which permitted the State to make out a case of murder in the first degree by showing either, (1) that the killing was done with malice and after premeditation and deliberation; or (2) in the perpetration or attempt to perpetrate a robbery or other felony. State v. Haynes, 276 N.C. 150 , 171 S.E. 2d 435 ; State v. Maynard, 247 N.C. 262 , 101 S.E. 2d 340 ; State v. Fogleman, 204 N.C. 401 , 168 S.E. 536 ; State v. *218 Arnold, 107 N.C. 861 , 11 S.E. 990 . (The latter case was decided before murder was divided into two degrees.)
In this case the State proceeded under (2) and offered evidence the killing was done in the perpetration of a felonious breaking and entering and in an attempt to commit larceny (crimes of violence). The court in short summary charged the jury: “Now in Case No. 71-CR-9360 as the court has heretofore explained to you, the defendant has been accused of first degree murder. By law, any killing of a human being by a person committing or attempting to commit . . . felonious breaking . . . or . . . felonious larceny, is first degree murder without anything further being shown.”
From the indictment, the evidence, and the court’s charge, it is obvious the State offered evidence of felonious housebreaking and felonious larceny as material elements of murder in the first degree. The defendant argues the housebreaking and the larceny acts having been used against him as a substitute for premeditation and deliberation raising the homicide to guilty in the first degree, these same acts may not be used as an independent crime. To do so would violate his rights under Article I, Section 19, North Carolina Constitution, and Articles V and XIV of the United States Constitution which give protection against double jeopardy, or two punishments for one offense.
The rule against double jeopardy, or two punishments for one offense, is succinctly stated in Wharton’s Criminal Law and Procedure, Volume 1, Section 148: “It is generally agreed that if a person is tried for a greater offense, he cannot be tried thereafter for a lesser offense necessarily involved in, and a part of, the greater . . . .”
Justice Clifton Moore, for this Court, in State v. Birckhead, 256 N.C. 494 , 124 S.E. 2d 838 , stated the rule.
“. . . (W)hen an offense is a necessary element in and constitutes an essential part of another offense, and both are in fact but one transaction, a conviction or acquittal of one is a bar to a prosecution to the other.
The only exception to this well established rule is the holding in some cases that conviction of a minor offense in an inferior court does not bar a prosecution for a higher crime, embracing the former, where the inferior court did not have jurisdiction of the higher crime.”
*219 Chief Justice Stacy thus stated the rule in State v. Bell, 205 N.C. 225 , 171 S.E. 50 .
“The principle to be extracted from well-considered cases is that by the term, ‘same offense,’ is not only meant the same offense as an entity and designated as such by legal name, but also any integral part of such offense which may subject an offender to indictment and punishment.
When such integral part of the principal offense is not a distinct affair, but grows out of the same transaction, then an acquittal or conviction of an offender for the lesser offense will bar a prosecution for the greater.
To adopt any other view would tend to destroy the efficacy of the doctrine governing second jeopardy which is embedded in our organic law as a safeguard to the liberties of the citizens.”
Additional authorities on the question of double jeopardy, or two punishments for one offense, are cited and discussed in the dissenting opinion in State v. Richardson, 279 N.C. 621 , 185 S.E. 2d 102 . The jury returned a verdict of guilty of murder in the first degree with a recommendation the punishment be life imprisonment. “The jury also returned a general verdict of guilty of the housebreaking and larceny charge.” The court imposed the mandatory sentence of life imprisonment in the murder case and a sentence of ten years in the housebreaking and larceny case.
I agree the record does not disclose reversible error in Case No. 71-CR-9360 and likewise I agree the judgment must be arrested in Case No. 71-CR-18932. The Court now arrests the judgment in the included offense. This the Court should have done but failed to do in Richardson.