{ "id": 8552783, "name": "STATE OF NORTH CAROLINA v. SAMUEL PETE TANNER", "name_abbreviation": "State v. Tanner", "decision_date": "1975-04-02", "docket_number": "No. 7410SC1062", "first_page": "251", "last_page": "256", "citations": [ { "type": "official", "cite": "25 N.C. App. 251" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "26 L.Ed. 2d 79", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1970, "opinion_index": 0 }, { "cite": "90 S.Ct. 1684", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1970, "opinion_index": 0 }, { "cite": "398 U.S. 914", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6189190, 6191081, 6189612, 6190226, 6188916, 6189847, 6190872, 6190042, 6190396, 6190620 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/us/398/0914-02", "/us/398/0914-10", "/us/398/0914-03", "/us/398/0914-06", "/us/398/0914-01", "/us/398/0914-04", "/us/398/0914-09", "/us/398/0914-05", "/us/398/0914-07", "/us/398/0914-08" ] }, { "cite": "397 U.S. 387", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12054506 ], "weight": 3, "year": 1970, "opinion_index": 0, "case_paths": [ "/us/397/0387-01" ] }, { "cite": "188 S.E. 2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574733 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0253-01" ] }, { "cite": "204 S.E. 2d 864", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "21 N.C. App. 525", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8556733 ], "weight": 3, "year": 1974, "pin_cites": [ { "page": "527" }, { "page": "527" } ], "opinion_index": 0, "case_paths": [ "/nc-app/21/0525-01" ] }, { "cite": "283 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559840, 8559809, 8559848, 8559821, 8559860 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0666-03", "/nc/283/0666-01", "/nc/283/0666-04", "/nc/283/0666-02", "/nc/283/0666-05" ] }, { "cite": "196 S.E. 2d 555", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "18 N.C. App. 321", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549257 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/18/0321-01" ] }, { "cite": "192 S.E. 2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 157", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563853 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0157-01" ] } ], "analysis": { "cardinality": 515, "char_count": 11050, "ocr_confidence": 0.581, "pagerank": { "raw": 1.4929712245954908e-07, "percentile": 0.6633855873450537 }, "sha256": "084fef734188bb4f8108fdd02e9ad90abb39a5301560e7c7af287429819ee17f", "simhash": "1:d753ce24532a8ee8", "word_count": 1859 }, "last_updated": "2023-07-14T15:30:12.075015+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Vaughn and Martin concur." ], "parties": [ "STATE OF NORTH CAROLINA v. SAMUEL PETE TANNER" ], "opinions": [ { "text": "BROCK, Chief Judge.\nCase No. 74CR16956\nDefendant assigns as error the failure of the trial court to instruct that \u00a7 15-21 of the Raleigh Code, proscribing the firing of a gun within the city limits, is not violated if the gun is fired in defense of person or property. G.S. 160A-189 grants cities authority to regulate, restrict, or prohibit by ordinance \u201cthe discharge of firearms at any time or place within the city except when used in defense of person or property or pursuant to lawful directions of law-enforcement officers, and may regulate the display of firearms on the streets, sidewalks, alleys, or other public property.\u201d\nAlthough firing in defense of person or property would not constitute a violation of the ordinance, there is no evidence that defendant fired either in self-defense or in defense of his property. Defendant testified that \u201c[t]hey were running up the street, Ethel and another, I don\u2019t know if it was her son or nephew, but they was running up the street, and I shot, went to the end of the porch, the balance (sic), and throwed the gun over and shot right down in the ground, and came on back in the house.\u201d\nWithout some evidence which would justify the jury\u2019s finding that defendant was acting in defense of person or property, the trial judge was not required to instruct the jury on the principle of self-defense. This argument is without merit.\nCase No. 74CR16957\nDefendant assigns as error the two-year sentence imposed for the violation of G.S. 14-160. That statute provides in G.S. 14-160 (a) that, in cases of wilful or wanton injury to personal property, punishment is not to exceed either six months or a $500.00 fine, or both. G.S. 14-160 (b) provides that injury to property causing damage in an amount in excess of $200.00 shall be punishable either by fine, imprisonment for a term not exceeding two years, or both.\nThere is no evidence or jury finding in this case as to the amount of damage done to the car in which Ethel Partin, her son, and her nephew were riding. In the absence of any proof that the damage was greater than $200.00, the defendant should have been sentenced pursuant to G.S. 14-160(a). We note that this would normally constitute only harmless error because the two-year sentence is to run concurrently with the four-to-six-year sentence imposed in Case No. 74CR16958 for shooting into an occupied vehicle. State v. Summrell, 282 N.C. 157, 192 S.E. 2d 569 (1972) ; State v. Avery, 18 N.C. App. 321, 196 S.E. 2d 555, cert. denied, 283 N.C. 666 (1973). However, because we find error in the trial court\u2019s charge in Case No. 74CR16958, the error in sentencing defendant without proof of damage in excess of $200.00 is prejudicial error. Accordingly the case will be remanded for imposition of a proper sentence.\nCase No. 74CR16958\nDefendant assigns as error the following portion of the trial judge\u2019s instructions to the jury:\n\u201cI will go over those elements for you again. Seat them in your minds because you must resolve and say whether the evidence has established that you are satisfied beyond a reasonable.doubt as to these three things: One, that the defendant intentionally discharged a shotgun into the Pontiac automobile described in the bill of indictment and evidence in the case. Two, also that the Pontiac automobile was occupied at the time that the gun was discharged; and, third and finally, that the defendant acted willfully or wantonly, which means that he had knowledge that the automobile was occupied by one or more persons or that he had reasonable ground to believe that the automobile might be occupied by one or more persons. They are the three things that are essential to constitute guilt.\u201d\nIn State v. Williams, 21 N.C. App. 525, 204 S.E. 2d 864 (1974), an almost identical instruction was given to the jury. The defendant argued that the \u201cinstruction equated wilful and wanton conduct with knowledge of occupancy of the building and attempted thereby to condense two separate elements of the crime into one.\u201d 21 N.C. App. at 527. We found merit in his argument and held that the charge was erroneous, despite the fact that it was taken from \u201cPattern Jury Instructions for Criminal Cases in North Carolina.\u201d We are therefore similarly constrained to hold that the charge in this case, concerning a violation of G.S. 14-34.1, was erroneous. As stated in Williams, a correct charge would provide that the accused would be guilty if the defendant intentionally, without legal justification or excuse, discharged a firearm into an occupied vehicle with knowledge that the vehicle was occupied by one or more persons or when he had reasonable grounds to believe that the vehicle might be occupied by one or more persons. 21 N.C. App. at 527. Defendant\u2019s assignment of error is sustained, and a new trial on this charge (Case No. 74CR16958) is ordered.\nDefendant has filed a separate motion in arrest of judgment in Cases No. 74CR16956 (discharging a firearm in the city) and No. 74CR16957 (wilful damage to property by shooting out the automobile window), contending that these two offenses merge into the greater offense charged in Case No. 74CR16958 (discharging a firearm into an occupied vehicle).\nIt seems clear that the elements of the offense charged in Case No. 74CR16956 (discharging a firearm in the city) are embraced within the offense charged in Case No. 74CR16957 (wilful damage to property by shooting out the automobile window) when that offense is proved \"to have been committed within the city. The two offenses were shown to arise out of the. same set of facts! \u201cIt 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, ...\u201d 1 Wharton, Criminal Law and Procedure \u00a7 148, quoted in State v. Peele, 281 N.C. 253, 188 S.E. 2d 326 (1972). The fact that one constitutes a violation of the city code and the other constitutes a violation of a state statute does not justify successive convictions. See Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed. 2d 435, reh denied, 398 U.S. 914, 90 S.Ct. 1684, 26 L.Ed. 2d 79 (1970). Therefore, judgment in Case No. 74CR16956 (discharging a firearm in the city) must be arrested.\nWe do not agree with defendant\u2019s contention that the elements in Case No. 74CR16957 (wilful damage to property by shooting out the automobile window) are the same as the elements in Case No. 74CR16958 (discharging a firearm into an occupied vehicle). The element of damages which must be shown in a charge of wilful damage to property is not an element in a charge of discharging a firearm into an occupied vehicle. Therefore, the two charges are not the same in fact or in law. Defendant\u2019s motion in arrest of judgment in Case No. 74CR16957 (wilful damage to personal property) is denied.\nThe result is this:\nIn Case No. 74CR16956, judgment arrested.\nIn Case No. 74CR16957, remanded for proper sentence.\nIn Case No. 74CR16958, new trial.\nJudges Vaughn and Martin concur.", "type": "majority", "author": "BROCK, Chief Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General John M. Silverstein, for the State.", "Vaughan S. Winborne, for the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. SAMUEL PETE TANNER\nNo. 7410SC1062\n(Filed 2 April 1975)\n1. Weapons and Firearms\u2014 discharging firearm in city \u2014 failure to instruct on self-defense\nThe trial court was not required to charge the jury that a city ordinance prohibiting the firing of a gun-within the city limits is not violated if the gun is fired in defense of person or property where there was no evidence that defendant was acting in defense of person or property when he fired the shot for which he was on trial. G.S. 160A-189.\n2. Property \u00a7 4\u2014 wilful damage to personalty \u2014 amount of damage \u2014 maximum sentence\nA sentence of six months was the maximum term that could be imposed for wilful damage to personal property, an automobile, where there was no proof and jury finding that the amount of damage to the automobile exceeded $200. G.S. 14-160(a), (b).\n3. Assault and Battery \u00a7 15\u2014 discharging firearm into occupied automobile\u2014 instructions \u2014 wilful act \u2014 knowledge of occupancy\nIn a prosecution for wilfully discharging a firearm into an occupied automobile, the trial court erred in giving the jury an instruction which equated wilful and wanton conduct with knowledge of occupancy since it thereby attempted to condense two elements of the crime into one.\n4. Property \u00a7 4; .Weapons and Firearms\u2014 discharging firearm in city \u2014 malicious damage to personalty \u2014 merger of offenses\nElements of the offense of discharging a firearm in a city in violation of a city ordinance are embraced within the offense of wilful damage to personalty by shooting out an automobile window when that offense is proved to have been committed within the city, and defendant could not be convicted and sentenced for both offenses.\n5. Assault and Battery \u00a7 5; Property \u00a7 4\u2014 wilful damage to personalty \u2014 firing into occupied vehicle \u2014 no merger of offenses\nThe elements of the offense of wilful damage to personalty by shooting out an automobile window are not embraced within the elements of the offense of discharging a firearm into an occupied vehicle since the element of damage in a charge of wilful damage to personalty is not an element of discharging a firearm into an occupied vehicle, and defendant could be convicted of both crimes.\nAppeal by defendant from Godwin, Judge. Judgment entered 25 July 1974 in Superior Court, Wake County. Heard in the Court of Appeals 20 February 1975.\nDefendant was convicted in superior court (1) of discharging a firearm within the Ealeigh city limits in violation of \u00a7 15-21 of the Ealeigh Code in Case No. 74CE16956, (2) of wilful damage to personal property, a violation of G.S. 14-160, by shooting out the front window of an automobile in Case No. 74CE16957, and (3) of discharging a firearm into an occupied automobile in violation of G.S. 14-34.1 in Case No. 74CE16958.\nThe State\u2019s evidence indicated that on 16 March 1974, during a date with one Ethel Partin, defendant discovered that $1,300.00 of his money had disappeared. Earlier defendant had placed thirteen one hundred dollar bills in his front pocket; He and Partin got into an argument over the disappearance of the money. While they were arguing at defendant\u2019s house, Partin\u2019s son and nephew arrived and became involved in the argument. A scuffle ensued, and Partin, her son, and her nephew went outside, got into a car, and drove away. When they, returned to the neighborhood later that night, defendant shot through the window of their car at them, injuring Partin\u2019s son, Robert. Defendant was arrested at his home following the shooting.\nThe only material differ\u00e9nce between the State\u2019s evidence and that offered by the defendant was the fact that defendant maintained that he fired into the ground rather than at the car. Defendant offered several witnesses who supported his testimony.\nThe jury found the facts against the defendant, and a sentence was imposed in each case. Defendant appealed.\nAttorney General Edmisten, by Assistant Attorney General John M. Silverstein, for the State.\nVaughan S. Winborne, for the defendant-appellant." }, "file_name": "0251-01", "first_page_order": 279, "last_page_order": 284 }