{ "id": 8570854, "name": "STATE OF NORTH CAROLINA v. ARTIE GILBERT THOMPSON", "name_abbreviation": "State v. Thompson", "decision_date": "1972-01-14", "docket_number": "No. 135", "first_page": "202", "last_page": "219", "citations": [ { "type": "official", "cite": "280 N.C. 202" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "181 S.E. 2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 108", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565834 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0108-01" ] }, { "cite": "40 S.E. 2d 699", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1946, "opinion_index": 0 }, { "cite": "227 N.C. 103", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621547 ], "year": 1946, "opinion_index": 0, "case_paths": [ "/nc/227/0103-01" ] }, { "cite": "171 S.E. 50", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1933, "opinion_index": 0 }, { "cite": "205 N.C. 225", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627771 ], "year": 1933, "opinion_index": 0, "case_paths": [ "/nc/205/0225-01" ] }, { "cite": "184 S.E. 2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "238" } ], "opinion_index": 0 }, { "cite": "279 N.C. 549", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571126 ], "year": 1971, "pin_cites": [ { "page": "554" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0549-01" ] }, { "cite": "142 S.E. 2d 337", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "339" } ], "opinion_index": 0 }, { "cite": "264 N.C. 508", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574153 ], "year": 1965, "pin_cites": [ { "page": "512" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0508-01" ] }, { "cite": "44 Wyo. 383", "category": "reporters:state", "reporter": "Wyo.", "case_ids": [ 8514933 ], "weight": 2, "year": 1932, "pin_cites": [ { "page": "389" }, { "page": "1111" } ], "opinion_index": 0, "case_paths": [ "/wyo/44/0383-01" ] }, { "cite": "146 A. 2d 17", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1958, "pin_cites": [ { "page": "20" } ], "opinion_index": 0 }, { "cite": "218 Md. 255", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 1955236 ], "year": 1958, "pin_cites": [ { "page": "260-61" } ], "opinion_index": 0, "case_paths": [ "/md/218/0255-01" ] }, { "cite": "209 Ore. 239", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 2420343 ], "weight": 2, "year": 1956, "pin_cites": [ { "page": "260, 264" }, { "page": "626, 628" } ], "opinion_index": 0, "case_paths": [ "/or/209/0239-01" ] }, { "cite": "392 P. 2d 526", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 2, "year": 1964, "pin_cites": [ { "page": "531-32" }, { "page": "530" } ], "opinion_index": 0 }, { "cite": "38 Cal. Rptr. 726", "category": "reporters:state", "reporter": "Cal. Rptr.", "weight": 2, "year": 1964, "pin_cites": [ { "page": "731" }, { "page": "730" } ], "opinion_index": 0 }, { "cite": "61 Cal. 2d 353", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 2337787 ], "weight": 2, "year": 1964, "pin_cites": [ { "page": "360-62" }, { "page": "360" } ], "opinion_index": 0, "case_paths": [ "/cal-2d/61/0353-01" ] }, { "cite": "209 N.E. 2d 303", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "pin_cites": [ { "page": "306-07" } ], "opinion_index": 0 }, { "cite": "349 Mass. 525", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 524525 ], "year": 1965, "pin_cites": [ { "page": "529-31" } ], "opinion_index": 0, "case_paths": [ "/mass/349/0525-01" ] }, { "cite": "142 S.E. 2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "220 Ga. 899", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 1095352, 1095570 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/ga/220/0899-01", "/ga/220/0899-02" ] }, { "cite": "429 S.W. 2d 225", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10130575 ], "year": 1968, "pin_cites": [ { "page": "231" } ], "opinion_index": 0, "case_paths": [ "/sw2d/429/0225-01" ] }, { "cite": "227 So. 2d 873", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9756443 ], "year": 1969, "pin_cites": [ { "page": "878" } ], "opinion_index": 0, "case_paths": [ "/so2d/227/0873-01" ] }, { "cite": "6 S.E. 2d 533", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1940, "opinion_index": 0 }, { "cite": "216 N.C. 627", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611265 ], "year": 1940, "opinion_index": 0, "case_paths": [ "/nc/216/0627-01" ] }, { "cite": "23 S.E. 337", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1895, "opinion_index": 0 }, { "cite": "117 N.C. 834", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654160 ], "year": 1895, "opinion_index": 0, "case_paths": [ "/nc/117/0834-01" ] }, { "cite": "183 S.E. 2d 671", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "pin_cites": [ { "page": "679" } ], "opinion_index": 0 }, { "cite": "279 N.C. 413", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569338 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0413-01" ] }, { "cite": "177 S.E. 2d 422", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "277 N.C. 333", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564952 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0333-01" ] }, { "cite": "175 S.E. 2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "277 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561677 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0001-01" ] }, { "cite": "173 S.E. 2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 430", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561670 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0430-01" ] }, { "cite": "170 S.E. 2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "276 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559907 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/276/0001-01" ] }, { "cite": "119 S.E. 2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "254 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626399 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/254/0380-01" ] }, { "cite": "101 S.E. 2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1958, "opinion_index": 0 }, { "cite": "247 N.C. 510", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627607 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/nc/247/0510-01" ] }, { "cite": "133 S.E. 2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "260 N.C. 548", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575579 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/260/0548-01" ] }, { "cite": "116 S.E. 2d 365", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "253 N.C. 86", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622612 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/253/0086-01" ] }, { "cite": "80 S.E. 2d 387", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "239 N.C. 453", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627305 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/239/0453-01" ] }, { "cite": "28 A.L.R. 2d 1104", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1951, "opinion_index": 0 }, { "cite": "64 S.E. 2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "233 N.C. 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608863 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/233/0390-01" ] }, { "cite": "101 S.E. 2d 340", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1958, "pin_cites": [ { "page": "345" } ], "opinion_index": 0 }, { "cite": "247 N.C. 462", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627418 ], "year": 1958, "pin_cites": [ { "page": "469" } ], "opinion_index": 0, "case_paths": [ "/nc/247/0462-01" ] }, { "cite": "56 S.E. 2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1949, "pin_cites": [ { "page": "652" }, { "page": "653" } ], "opinion_index": 0 }, { "cite": "231 N.C. 301", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629425 ], "year": 1949, "pin_cites": [ { "page": "305" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0301-01" ] }, { "cite": "176 S.E. 2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "769" } ], "opinion_index": 0 }, { "cite": "277 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563764 ], "year": 1970, "pin_cites": [ { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0205-01" ] }, { "cite": "171 S.E. 2d 435", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "439" } ], "opinion_index": 0 }, { "cite": "276 N.C. 150", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560441 ], "year": 1970, "pin_cites": [ { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0150-01" ] }, { "cite": "185 S.E. 2d 102", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "279 N.C. 621", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571881 ], "opinion_index": 1, "case_paths": [ "/nc/279/0621-01" ] }, { "cite": "124 S.E. 2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "256 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573643 ], "opinion_index": 1, "case_paths": [ "/nc/256/0494-01" ] }, { "cite": "11 S.E. 990", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 1 }, { "cite": "107 N.C. 861", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11275335 ], "opinion_index": 1, "case_paths": [ "/nc/107/0861-01" ] }, { "cite": "168 S.E. 536", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 1 }, { "cite": "204 N.C. 401", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619481 ], "opinion_index": 1, "case_paths": [ "/nc/204/0401-01" ] }, { "cite": "247 N.C. 262", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626577 ], "opinion_index": 1, "case_paths": [ "/nc/247/0262-01" ] }, { "cite": "171 S.E. 50", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1933, "opinion_index": 1 }, { "cite": "205 N.C. 225", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627771 ], "year": 1933, "opinion_index": 1, "case_paths": [ "/nc/205/0225-01" ] }, { "cite": "101 S.E. 2d 340", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1958, "opinion_index": 1 }, { "cite": "171 S.E. 2d 435", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 1 }, { "cite": "276 N.C. 150", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560441 ], "year": 1970, "opinion_index": 1, "case_paths": [ "/nc/276/0150-01" ] } ], "analysis": { "cardinality": 1320, "char_count": 40197, "ocr_confidence": 0.559, "pagerank": { "raw": 7.82643013981751e-07, "percentile": 0.9724306320561547 }, "sha256": "cc56a6443cb42204ce5885e28249d130a5ed6ad76b7d1188c3cd0a9e0b637756", "simhash": "1:b15a4c0e00b55e98", "word_count": 6682 }, "last_updated": "2023-07-14T16:17:02.302234+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. ARTIE GILBERT THOMPSON" ], "opinions": [ { "text": "BOBBITT, Chief Justice.\nDefendant assigns as error the court\u2019s denial of his motion under G.S. 15-173 for judgment as in case of nonsuit in respect of each of the three charges. The evidence, when considered in the light most favorable to the State, required submission of the murder charge. Whether the court should have submitted felonious breaking and entering and felonious larceny as separate criminal offenses will be considered below.\nWith reference to the murder indictment, the court instructed the jury they could return a verdict of guilty of murder in the first degree, or a verdict of guilty of murder in the first degree with a recommendation that the punishment be imprisonment for life, or a verdict of not guilty. Defendant assigns as error the court\u2019s failure to instruct the jury on the lesser in-eluded crimes of murder in the second degree and manslaughter.\nAn indictment for murder in the form prescribed by G.S. 15-144 is sufficient to support a verdict of guilty of murder in the first degree if the jury finds from the evidence beyond a reasonable doubt that defendant killed the deceased with malice and after premeditation and deliberation or in the perpetration or attempt to perpetrate \u201cany arson, rape, robbery, burglary or other felony.\u201d State v. Haynes, 276 N.C. 150, 156, 171 S.E. 2d 435, 439 (1970), and cases cited; State v. Lee, 277 N.C. 205, 212, 176 S.E. 2d 765, 769 (1970) , and cases cited. The State contends, and offered evidence tending to show, that defendant killed Ernest Mackey while defendant was engaged in the perpetration of the crimes of felonious breaking and entering and felonious larceny. In respect of the indictment and trial for murder, variances between the allegations in the separate two-count indictment and the evidence are immaterial. These variances are considered below in determining whether defendant was properly tried, convicted and sentenced for felonious breaking and entering and for felonious larceny as separate crimes in addition to the crime of murder.\nG.S. 14-17 provides in pertinent part that \u201c[a] murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed to be murder in the first degree . . . . \u201d (Our italics.)\n\u201cIt is evident that under this statute [G.S. 14-17] a homicide is murder in the first degree if it results from the commission or attempted commission of one of the four specified felonies or of any other felony inherently dangerous to life, without regard to whether the death was intended or not.\u201d State v. Streeton, 231 N.C. 301, 305, 56 S.E. 2d 649, 652 (1949). A murder committed in the perpetration or attempt to perpetrate any felony within the purview of G.S. 14-17 is murder in the first degree, irrespective of premeditation or deliberation or malice aforethought. State v. Maynard, 247 N.C. 462, 469, 101 S.E. 2d 340, 345 (1958), and cases cited.\nDecisions holding that homicides committed in the perpetration or attempt to perpetrate the specified felonies of arson, burglary, rape and robbery constitute murder in the first degree are cited in State v. Streeton, supra at 305-06, 56 S.E. 2d at 653. Subsequent cases to like effect include the following: Rape, State v. Rogers, 233 N.C. 390, 64 S.E. 2d 572, 28 A.L.R. 2d 1104 (1951); State v. Grayson, 239 N.C. 453, 80 S.E. 2d 387 (1954); State v. Davis, 253 N.C. 86, 116 S.E. 2d 365 (1960); State v. Crawford, 260 N.C. 548, 133 S.E. 2d 232 (1963); robbery, State v. Rogers, supra; State v. Maynard, supra; State v. Bunton, 247 N.C. 510, 101 S.E. 2d 454 (1958); State v. Bailey, 254 N.C. 380, 119 S.E. 2d 165 (1961); State v. Hill, 276 N.C. 1, 170 S.E. 2d 885 (1969); State v. Henderson, 276 N.C. 430, 173 S.E. 2d 291 (1970); State v. Fox, 277 N.C. 1, 175 S.E. 2d 561 (1970); State v. Rich, 277 N.C. 333, 177 S.E. 2d 422 (1970).\nDecisions holding that homicides committed in the perpetration or attempt to perpetrate unspecified felonies constitute murder in the first degree include the following: Kidnapping, State v. Streeton, supra; felonious escape, State v. Lee, supra; sodomy, State v. Doss, 279 N.C. 413, 183 S.E. 2d 671 (1971).\nIn State v. Covington, 117 N.C. 834, 23 S.E. 337 (1895), the indictment for murder was in the form prescribed by G.S. 15-144. The felony-murder aspect of the case was submitted as murder pursuant to a felonious breaking and entering of a store with intent to commit the crime of larceny therein. In State v. Kelly, 216 N.C. 627, 6 S.E. 2d 533 (1940), the indictment charged murder committed by defendant \u201cwhile engaged in the perpetration of the crime of store breaking and larceny,\u201d but the felony-murder aspect of the case was submitted as murder committed by defendant while engaged in the perpetration of the crime of robbery.\nThe only evidence of the circumstances under which Ernest Mackey was killed was offered by the State. It tends to show that defendant feloniously broke into and entered Cecil Mackey\u2019s apartment; that he committed the crime of felonious larceny therein; and that, while upstairs in the Mackey apartment, defendant shot and killed Ernest Mackey. The fatal wound was inflicted under circumstances not disclosed by the evidence. Both Sings and Willie Mae testified that defendant stated that he had shot the boy. According to Sings, defendant told him the \u201cgun just went off\u201d and \u201che didn\u2019t know why the gun went off.\u201d According to Willie Mae, defendant told Sings he had to shoot the boy \u201cbecause when he was going back in the house the boy could see him and he could identify him.\u201d\nWe consider first whether the felonious breaking and entering and the felonious larceny disclosed by the evidence are felonies within the purview of G.S. 14-17. Under the evidence, defendant was guilty of felonious larceny only if the larceny was committed pursuant to a felonious breaking and entering. G.S. 14-70; G.S. 14-72(b) (2) ; G.S. 14-64(a). (There was no evidence that the property stolen had a value in excess of $200.00.) The crimes of felonious breaking and entering and of felonious larceny herein were interrelated and committed as successive events in a continuing course of conduct. The court instructed the jury that they would not consider whether defendant was guilty of felonious larceny unless they first found that he was guilty of felonious breaking and entering. The court also instructed the jury that they should return a verdict of guilty of murder in the first degree if satisfied beyond a reasonable doubt that defendant shot and fatally injured Ernest Mackey \u201cwhile committing or attempting to commit the felony of breaking into or entering the apartment of Mackey ... or during the felonious larceny\u201d; and that if they failed so to find they would return a verdict of not guilty.\nWe have held that a felony which is inherently dangerous to life is within the purview of G.S. 14-17 although not specified therein. State v. Streeton, supra; State v. Lee, supra; State v. Doss, supra. However, as indicated in State v. Doss, supra at 427, 183 S.E. 2d at 679, no decision of this Court purports to hold that the only unspecified felonies within the purview of G.S. 14-17 are felonies which are inherently dangerous to life. In our view, and we so hold, any unspecified felony is within the purview of G.S. 14-17 if the commission or attempted commission thereof creates any substantial foreseeable human risk and actually results in the loss of life. This includes, but is not limited to, felonies which are inherently dangerous to life. Under this rule, any unspecified felony which is inherently dangerous to human life, or foreseeably dangerous to human life due to the circumstances of its commission, is within the purview of G.S. 14-17. In a discussion of the \u201cFelony-Murder Rule,\u201d Professor Perkins states: \u201cOne who is perpetrating a felony which seems not of itself to involve any element of human risk, may resort to a dangerous method of committing it, or may make use of dangerous force to deter others from interfering. If the dangerous force thus used results in death, the crime is murder just as much as if the danger was inherent in the very nature of the felony itself.\u201d R. Perkins, Criminal Law 34 (1957).\nIn the present case, the evidence tends to show that defendant, armed with a pistol, feloniously broke into and entered the Mackey apartment; that he committed the crime of felonious larceny therein; and that while upstairs in said apartment he came upon Ernest Mackey and shot and killed him. These crimes of felonious breaking and entering, and felonious larceny, committed under these circumstances, created substantial foreseeable human risks and therefore were unspecified felonies within the purview of G.S. 14-17.\nWe consider next whether the evidence shows the fatal wound was inflicted while defendant was engaged in the perpetration of, or attempt to perpetrate, the crimes of felonious breaking and entering and of felonious larceny. An interrelationship between the felony and the homicide is prerequisite to the application of the felony-murder doctrine. 40 C.J.S. Homicide \u00a7 21(b), at 870; Perkins, op. cit. at 35. A killing is committed in the perpetration or attempted perpetration of a felony within the purview of a felony-murder statute \u201cwhen there is no break in the chain of events leading from the initial felony to the act causing death, so that the homicide is linked to or part of the series of incidents, forming one continuous transaction.\u201d 40 Am. Jur. 2d Homicide \u00a7 73, at 367; see 51 Dickinson Law Review 12, 18-19 (1946). Robbery cases bearing on this point are Campbell v. State, 227 So. 2d 873, 878 (Fla. 1969); State v. Glenn, 429 S.W. 2d 225, 231 (Mo. 1968); Jones v. State, 220 Ga. 899, 142 S.E. 2d 801 (1965); Commonwealth v. Dellelo, 349 Mass. 525, 529-31, 209 N.E. 2d 303, 306-07 (1965); People v. Mitchell, 61 Cal. 2d 353, 360-62, 38 Cal. Rptr. 726, 731, 392 P. 2d 526, 531-32 (1964).\nIn the present case, the homicide was committed within the apartment of Cecil Mackey after defendant had feloniously broken into and entered the apartment and after the personal property of Cecil Mackey had been feloniously stolen or while it was being stolen. Ernest Mackey, the stepson of Cecil, lived in that apartment. The fact that he was fully clothed and in the bathroom when his warm body was discovered indicates plainly he was awake when shot. Whether Ernest Mackey was shot when first approached or confronted by defendant or whether he was shot later when defendant went back \u201cto take care of\u201d the \u201csomebody upstairs\u201d is immaterial. Too, it is immaterial whether the killing was to enable defendant to consummate the crime of larceny, or to overcome resistance, or to avoid identification and arrest. In either event the killing resulted from and was the culmination of defendant\u2019s course of criminal conduct while engaged in the perpetration of felonious breaking and entering and felonious larceny.\nWe consider next the attenuate suggestion that the discharge of the pistol was unintentional. It is difficult to reconcile defendant\u2019s statement to Sings that \u201cthe gun just went off\u201d and he \u201cdidn\u2019t know why\u201d with defendant\u2019s statement to Sings that there was somebody upstairs he had \u201cto take care of\u201d and with the fact that Ernest Mackey\u2019s death was caused by a bullet wound in the back of his head. These evidential facts are in substantial accord with the statement attributed to defendant by Willie Mae. For present purposes we may assume that the actual discharge of the gun was unintentional. This assumed, the question presented is whether death caused by the unintentional discharge of a gun in the hands of a felon engaged in the perpetration or attempt to perpetrate a felony within the purview of G.S. 14-17 is murder in the first degree.\nWe are in accord with Perkins\u2019s statement that \u201c[i]t is not necessary ... to show that the killing was intended or even that the act resulting in death was intended. It may have been quite unexpected.\u201d Perkins, op. cit. at 35. We hold that the killing of a person by one who is engaged in the perpetration or attempt to perpetrate a felony which is inherently or foreseeably dangerous to human life is murder in the first degree notwithstanding the discharge of the pistol is unintentional. Decisions in accord include the following: People v. Mitchell, 61 Cal. 2d 353, 360, 38 Cal. Rptr. 726, 730, 392 P. 2d 526, 530 (1964); State v. Jensen, 209 Ore. 239, 260, 264, 296 P. 2d 618, 626, 628 (1956); Stansbury v. State, 218 Md. 255, 260-61, 146 A. 2d 17, 20 (1958); State v. Best, 44 Wyo. 383, 389, 12 P. 2d 1110, 1111 (1932). \u201cThe turpitude of the felonious act is deemed to supply the element of deliberation or design to effect death.\u201d 40 Am. Jur. 2d Homicide \u00a7 46, at 336.\n\u2022 Although our research indicates the precise question now decided has not been presented previously to this Court, it is noteworthy that in State v. Phillips, 264 N.C. 508, 512, 142 S.E. 2d 337, 339 (1965), this dictum appears: \u201c(Of course, accident will be no defense to a homicide committed in the perpetration of or in the attempt to perpetrate a felony. G.S. 14-17.)\u201d In Phillips, the question presented and decided involved the court\u2019s instructions with reference to homicide by misadventure in a second-degree-murder \u2014 manslaughter case.\nG.S. 15-169, involving conviction of the lesser offense of assault in a prosecution for a greater felony, and G.S. 15-170, involving conviction for a less degree of or an attempt to commit a crime, are applicable only when there is evidence tending to show the defendant may be guilty of an included crime of lesser degree. State v. Carnes, 279 N.C. 549, 554, 184 S.E. 2d 235, 238 (1971), and cases cited. There is no evidence that Ernest Mackey was murdered by defendant otherwise than while defendant was engaged in the perpetration of the crimes of felonious breaking and entering and felonious larceny. Since there was no evidential basis therefor, defendant\u2019s contention that the court should have submitted lesser degrees of unlawful homicide is without merit.\nWe come now to defendant\u2019s contention that judgments as in case of nonsuit should have been entered in respect of both counts in the separate two-count bill of indictment.\nWith reference to the felonious breaking and entering count in the separate bill of indictment, it is noted that the dwelling involved is described as \u201ca certain dwelling house and building occupied by one Ernest Mackey, 3517 Burkland Avenue, Apartment #3, Charlotte, N. C.\u201d Although primarily the dwelling of Cecil Mackey and his wife, Ernest Mackey lived there as a member of the family. Unquestionably, the identification of the dwelling house allegedly feloniously broken into and entered by defendant was sufficient. Moreover, the breaking and entering with the felonious intent to steal was explicitly alleged. The additional allegation that the intent was to steal \u201cthe merchandise . . . and other personal property of the said Ernest Mackey,\u201d (the evidence, as discussed below, tended to show the personalty did not belong to Ernest Mackey) was unnecessary and without legal significance. If there was a breaking and entering with the felonious intent to steal, neither the identification of the owner of the personal property sought to be stolen nor the accomplishment of the felonious intent is a prerequisite of guilt. A person is guilty of feloniously breaking and entering a dwelling house if he unlawful breaks and enters such dwelling house with the intent to steal personal property located therein without reference to the ownership thereof.\nAlthough the evidence indicates there was a breaking, accomplished by opening a door or raising a window or both, as well as an entry into the Mackey apartment, it is noted that G.S. 14-54 (a) provides: \u2018\u2018Any person who breaks or enters any building with intent to commit any felony or larceny therein is guilty of a felony and is punishable under G.S. 14-2.\u201d (Our italics.) Under G.S. 14-54 (c), the Mackey apartment was a \u201cbuilding\u201d within the purview of G.S. 14-54(a).\nThe motion for judgment as in case of nonsuit with reference to the felonious breaking and entering count in the separate indictment was properly overruled. Although a remote possibility, conceivably the jury could have found beyond a reasonable doubt that defendant feloniously broke into and entered the Mackey apartment but not that defendant shot and killed Ernest Mackey. Under appropriate instructions as to this contingency, it was proper to submit the felonious breaking and entering count in the separate indictment. (Of course there would have been no basis for submitting the felonious' breaking and entering if defendant had been tried solely on the murder indictment.)\nHowever, the separate judgment imposing punishment for felonious breaking and entering in addition to that imposed for the murder conviction cannot stand. When a person is convicted of murder in the first degree no separate punishment may be imposed for any lesser included offense. Technically, feloniously breaking and entering a dwelling is never a lesser included offense of the crime of murder. However, in the present and similar factual situations, a cognate principle applies. Here, proof that defendant feloniously broke into and entered the dwelling of Cecil Mackey, to wit, Apartment #3, 3517 Burkland Drive, was an essential and indispensable element in the State\u2019s proof of murder committed in the perpetration of the felony of feloniously breaking into 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).\nThe second count in the separate bill- of indictment charges the larceny of personal property of Ernest Mackey. The evidence tends to show that the only personal property missing from the Mackey apartment was the TV set of Cecil Mackey and clothes of Cecil Mackey and his wife. There is no evidence that Ernest Mackey had any general or special property interest in any of the stolen articles. The motion for judgment as in case of nonsuit, which properly presented the question of fatal variance, should have been granted. State v. Law, 227 N.C. 103, 40 S.E. 2d 699 (1946), and cases cited. See also State v. Jessup, 279 N.C. 108, 181 S.E. 2d 594 (1971), and cases cited therein. This fatal variance alone is sufficient ground for arresting the judgment based on the verdict of guilty as charged in the larceny count of the separate bill of indictment. However, if the larceny count had properly charged the larceny of personal property of Cecil Mackey, the separate verdict of guilty of felonious larceny would have afforded no basis for additional punishment. For the reasons stated above with reference to the felonious breaking and entering count in the separate bill of indictment, the felonious larceny was, under the circumstances of this case, a lesser included offense of the felony-murder, in the special sense above mentioned. The jury\u2019s verdict in the murder case established that defendant killed Ernest Mackey while engaged in the perpetration of the interrelated crimes of felonious breaking and entering and of felonious larceny.\nDefendant assigns as error portions of the court\u2019s instructions relating to the larceny count in the separate indictment. He contends the court erred by referring to the Mackey property without being specific whether the larceny involved personal property of Ernest Mackey as charged or of Cecil Mackey as shown by the evidence. Further, he contends the court erred by refusing to submit the lesser included offense of nonfelonious larceny. In view of our holding that judgment as in case of non-suit should have been granted as to the larceny count in the separate indictment, and our arrest of the judgment based on the verdict of guilty of larceny as an independent criminal offense, these assignments of error have no present legal significance.\nEach of defendant\u2019s remaining assignments of error has been considered. Suffice to say, none discloses prejudicial error or merits discussion.\nThe foregoing leads to this conclusion: In respect of the murder indictment, the verdict and judgment will not be disturbed. However, the separate judgments based on the verdicts of guilty of feloniously breaking and entering and felonious larceny are arrested on the ground that the commission of these crimes was an essential of and the basis for the conviction of defendant for felony-murder and therefore no additional punishment may be imposed for them as independent criminal offenses.\nIn the murder case: No error.\nIn the breaking and entering and larceny cases: Judgments arrested.", "type": "majority", "author": "BOBBITT, Chief Justice." }, { "text": "Justice Higgins\nconcurring.\nThe 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.\nIndictment 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. Arnold, 107 N.C. 861, 11 S.E. 990. (The latter case was decided before murder was divided into two degrees.)\nIn 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: \u201cNow 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.\u201d\nFrom the indictment, the evidence, and the court\u2019s 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.\nThe rule against double jeopardy, or two punishments for one offense, is succinctly stated in Wharton\u2019s Criminal Law and Procedure, Volume 1, Section 148: \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\nJustice Clifton Moore, for this Court, in State v. Birckhead, 256 N.C. 494, 124 S.E. 2d 838, stated the rule.\n\u201c. . . (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.\nThe 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.\u201d\nChief Justice Stacy thus stated the rule in State v. Bell, 205 N.C. 225, 171 S.E. 50.\n\u201cThe principle to be extracted from well-considered cases is that by the term, \u2018same offense,\u2019 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.\nWhen 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.\nTo 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.\u201d\nAdditional 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. \u201cThe jury also returned a general verdict of guilty of the housebreaking and larceny charge.\u201d 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.\nI 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.", "type": "concurrence", "author": "Justice Higgins" } ], "attorneys": [ "Attorney General Morgan and Deputy Attorney General Vanore for the State.", "James M. Shannonhouse, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ARTIE GILBERT THOMPSON\nNo. 135\n(Filed 14 January 1972)\n1. Homicide \u00a7 21\u2014 felony-murder prosecution \u2014 sufficiency of evidence\nThe State\u2019s evidence tending to show that the defendant killed a 16-year-old boy while defendant was engaged in the perpetration of the crimes of felonious breaking and entering and felonious larceny, held sufficient to be submitted to the jury on the issue of defendant\u2019s guilt of first degree murder.\n2. Homicide \u00a7 4\u2014 murder committed during perpetration of felony \u2022\u2014 premeditation and malice\nA murder committed in the perpetration or attempted perpetration of any felony within the purview of G.S. 14-17 is murder in the first degree, irrespective of premeditation or deliberation or malice aforethought.\n3. Homicide \u00a7 4\u2014 felony-murder statute \u2014 felony creating risks to human life\nAny unspecified felony is within the purview of the felony-murder statute if the commission or attempted commission thereof creates any substantial foreseeable human risk and actually results in the loss of life; this includes, but is not limited to, felonies which are inherently dangerous to life. G.S. 14-17.\n4. Homicide \u00a7 4\u2014 prosecution under felony-murder statute \u2014 what constituted unspecified felonies \u2014 felonious breaking and entering and larceny\nThe crimes of felonious breaking and entering and felonious larceny created substantial foreseeable human risks and therefore were unspecified felonies within the purview of the felony-murder statute, G.S. 14-17, where the evidence' tended to show that the defendant, armed with a pistol, feloniously broke into and entered an apartment, that he committed felonious larceny therein, and that while in the apartment he came upon an occupant thereof and shot and killed him.\n5. Homicide \u00a7 4\u2014 felony-murder prosecution\nA killing is committed in the perpetration or attempted perpetration of a felony within the purview of the felony-murder statute when there is no break in the chain of events leading from the initial felony to the act causing death, so that the homicide is linked to or part of the series of incidents, forming one continuous transaction.\n6. Homicide \u00a7 4\u2014 felony-murder prosecution \u2014 unintentional discharge of pistol\nThe killing of a person by one who is engaged in the perpetration or attempted perpetration of a felony which is inherently or foresee-ably dangerous to human life is murder in the first degree notwithstanding the discharge of the pistol is unintentional.\n7. Burglary and Unlawful Breakings \u00a7 2\u2014 felonious breaking and entering \u2014 elements of the offense\nA person is guilty of feloniously breaking and entering a dwelling house if he unlawfully breaks and enters such dwelling house with the intent to steal personal property located therein without reference to the ownership thereof.\n8. Criminal Law \u00a7 26; Homicide \u00a7 4\u2014 felony-murder prosecution \u2014 separate punishment for felony and murder\nWhere defendant\u2019s conviction of felony-murder was based upon a jury finding that the murder was committed in the perpetration of felonious breaking and entering, no separate punishment can be imposed for the felonious breaking and entering.\n9. Larceny \u00a7 7\u2014 larceny prosecution \u2014 variance as to owner of stolen property\nIn a prosecution on indictment charging the larceny of personal property of a named person, evidence tending to show that the only property missing was that belonging to another person and his wife, held sufficient to warrant nonsuit on the ground of fatal variance.\nJustice Higgins concurring.\nAppeal by defendant under G.S. 7A-27 (a) from McLean, /., May 17, 1971 Schedule \u201cA\u201d Criminal Session of Mecklen-burg Superior Court.\nDefendant was indicted, in the form prescribed by G.S. 15-144, for the murder of Ernest Mackey on February 9, 1971.\nDefendant was indicted separately in a two-count bill which charged that on February 9, 1971, defendant committed the felonies described therein, viz.: The first count charged defendant with feloniously breaking and entering a certain dwelling house and building occupied by one Ernest Mackey, 3517 Burkland Drive, Apartment #8, Charlotte, N. C., with intent to steal personal property of Ernest Mackey. The second count charged that, after having feloniously broken into and entered the said dwelling house and building and apartment, defendant did steal certain goods and chattels of Ernest Mackey, to wit, \u201c1 Zenith televison set, model K1670, assorted mens and womens clothing, 1 yellow bedspread, and 1 television antenna, of the value of $400.00 . \u201d\nUpon arraignment thereon, defendant, represented by James Shannonhouse, Esq., his court-appointed counsel, pleaded not guilty to each indictment.\nUncontradicted evidence tends to show the facts narrated below.\nOn the morning of February 9, 1971, between 7:15 and 7:20, Cecil Mackey and his wife left their residence at 3517 Burkland Drive, Apartment #3, Charlotte, N. C., for work. The apartment consisted of a living room and kitchen downstairs and twojaedrooms and a bath upstairs. There was a door at the front and one at the back. Cecil locked the front door. The door at the back \u201cwould not lock.\u201d There was no doorknob on the back door on the outside, but there was one on the inside. One could come in the back through a window. When Cecil and his wife left for work, Ernest Mackey, age 16, was the only person in the apartment. He was in bed asleep. Ernest was Cecil\u2019s stepson, the son of Cecil\u2019s wife.\nWhen Cecil returned to the apartment, \u201cabout 1:30 or quarter of 2:00 in the afternoon,\u201d he saw \u201ca lot of people outside.\u201d The dead body of Ernest was being placed in an ambulance. Certain articles which had been in the apartment when Cecil left that morning were missing, namely, Cecil\u2019s \u201cblack and white Zenith television\u201d and \u201cbunny type antenna\u201d and clothes of Cecil and of his wife.\nDetective James L. Euckart arrived at the Mackey apartment before Cecil\u2019s return. Euckart observed a raised window located \u201capproximately a foot from the back door,\u201d from which the screen had been removed. Entering the apartment, he observed a chest of drawers. Some of the drawers were standing open and part of one was on the floor in front of the dresser. Upstairs, there was a blanket on the floor of a bedroom. The blanket was smoking and burning. In the bathroom \u201ca young Negro male [was] lying on the floor.\u201d He was lying on his face, his head resting against the base of the bathroom door, his hands \u201cunder his belly and his feet up in the bathtub.\u201d He was \u201cfully clothed and dead.\u201d There was a wound in the back of his head, behind his right ear at the base of the skull, with \u201ca round hole about the size of a piece of chalk.\u201d Blood from the wound was running on the shoulder of the victim and on the bathroom floor.\nAn autopsy was performed on the body of Ernest Mackey on February 10, 1971, by Dr. Hobart E. Wood, Medical Examiner of Mecklenburg County. Dr. Wood first saw the dead body of Ernest on February 9, 1971, at 2:05 p.m., in the bathroom on the upper floor of the Mackey apartment. From his inspection of the body at that time Dr. Wood determined Ernest \u201chad died recently.\u201d He testified: \u201cThe body was warm, cooling, had all the aspects of fresh death.\u201d There was \u201cno stiffness\u201d and \u201cno rigidity\u201d present at that time. Dr. Wood described the bullet wound in the back of Ernest\u2019s head and testified that, in his opinion, this wound caused Ernest\u2019s death. There was no evidence of injury other than that caused by this bullet wound.\nTo establish that defendant committed the crimes charged, the State offered the testimony of Frances Nichols, Edward Clyburn, age 19, Larry Sings, age \u201cabout twenty,\u201d and Willie Mae Harris. Their testimony, summarized except when quoted, tends to show the facts narrated below.\nOn February 9, 1971, about 1:00 p.m., at the Red Shed Cafe, defendant asked Sings \u201cif [he] could use a few dollars\u201d and \u201cmentioned furniture and things he could get if he had a truck or something to move it in.\u201d Sings had no conveyance but suggested that defendant talk to Clyburn. Defendant offered Clyburn $1.00 \u201cto carry him down to his house to get a television\u201d and \u201ctwo more dollars\u201d if he \u201ccarried him to the pawn shop.\u201d Accompanied by defendant and by Sings, and as directed by defendant, Clyburn drove his mother\u2019s 1964 blueo Ford to 3517 Burkland Drive. Leaving Sings and Clyburn in the car, defendant got out and knocked on the front door of the Mackey apartment. Receiving no answer, defendant went around to the back. Obtaining entrance at the back, defendant walked through the apartment, opened the front door and called to Sings and Clyburn to \u201c[c]ome on in.\u201d Sings entered the front door and, at the foot of the stairs, received from defendant a portable television set. Sings carried the TV set out of the back of the house and put it in Clyburn\u2019s car. The car was then located in a driveway between the apartment building in which the Mackey apartment was located and the apartment building in which the apartment of Frances Nichols was located. Frances Nichols observed the removal of the TV set from the Mackey apartment and the placement of it in the \u201cturquoise\u201d Ford and made haste to notify the police. Sings went back into the Mackey apartment but Clyburn drove away \u201creal fast.\u201d\nAfter giving Sings the TV set defendant went back upstairs. Upon Sings\u2019s return, defendant \u201chad some clothing downstairs\u201d and told Sings to put it in the car. Sings told him that Clyburn had already \u201cpulled off.\u201d In response to Sings\u2019s question whether he had gotten everything he wanted, defendant replied, \u201cYes.\u201d When Sings said, \u201cLet\u2019s go,\u201d defendant answered as follows: \u201cWait a minute. Something I have to take care of.\u201d Sings asked what it was, and defendant replied: \u201cSomebody upstairs.\u201d When Sings asked defendant if \u201cthey\u201d had seen him, defendant replied, \u201cNo,\u201d and added, \u201cYou go ahead and I will meet up with you later.\u201d Sings left, carrying the clothes, leaving defendant in the apartment.\nA short distance from the Mackey apartment Clyburn picked up Sings and took him to the house of Willie Mae Harris at 3105 Zircon Street, \u201ceight blocks or more\u201d from the Mackey apartment. Over Willie Mae\u2019s protest, the television set and the clothes were taken into her house. Clyburn and Sings then left and picked up defendant. Clyburn drove back to Willie Mae\u2019s and Sings and defendant got out and went into her house. Clyburn drove away.\nWhen Sings and defendant were alone in a bedroom in Willie Mae\u2019s house, defendant told Sings he had shot \u201ca boy upstairs\u201d; that he did not know whether he had killed him; that \u201c[t]he gun just went off.\u201d He did not tell Sings \u201cwhat he did with the gun\u201d or \u201cwhy he killed or shot him.\u201d After defendant told Sings \u201che had shot the boy upstairs,\u201d defendant left Willie Mae\u2019s house. Willie Mae demanded that the \u201cstuff\u201d be taken out of her house. The television set was put under a house in back of Willie Mae\u2019s house. The clothes were put in a garbage dumpster at the end of Zircon Street. Sings saw defendant again that night in Griertown. Defendant then told Sings \u201che didn\u2019t know why the gun went off and he had never killed nobody before.\u201d Sings told defendant to \u201cstep off\u201d and \u201cnot to be hanging around [him].\u201d Then Sings called the police station and about an hour later the police came to Willie Mae\u2019s house and picked up Sings. Clyburn was arrested the same night. Sings and Clyburn made statements concerning their connection with the charges set forth in the bills of indictment.\nWillie Mae testified she overheard a conversation between Sings and defendant in which defendant told Sings that he had to shoot the boy because \u201cwhen he was going back in the house the boy could see him and he could identify him.\u201d\nDefendant was taken into custody in Philadelphia, Pennsylvania, waived extradition proceedings, and was arrested in North Carolina on February 19, 1971.\nCecil Mackey had seen defendant prior to February 9, 1971, but did not know him. Cecil understood that Ernest had known defendant and that defendant had previously been at the Mackey apartment.\nThe only evidence offered by defendant was the testimony of Dorothy Ann Burton. She testified that she saw defendant on February 9, 1971, at her house, \u201cabout 10:00 or 10:30\u201d until \u201cabout 2:00,\u201d and that she saw him again \u201cabout 4:00, 4:30.\u201d Upon cross-examination, she testified that she was \u201cnot sure it was the ninth,\u201d that \u201cit could have been the 10th, it could have been the 11th,\u201d and that she just did not know \u201cwhat day it was that [she] saw him at 10:00 in the morning.\u201d \u25a0\nIn the murder case, the jury returned a verdict of guilty of murder in the first degree with recommendation that the punishment be life imprisonment.\nWith reference to the two-count bill of indictment charging (1) felonious breaking and entering, and (2) felonious larceny, the jury returned a verdict of guilty as charged on each count.\nIn the murder case, the judgment pronounced imposed a sentence of imprisonment for life. In the felonious breaking and entering case, and in the felonious larceny case, separate judgments were pronounced, each imposing a prison sentence of ten years with provision that the sentence in the felonious larceny case commence at the expiration of the sentence in the felonious breaking and entering case.\nDefendant excepted to each of the three judgments and noted separate appeal entries in respect of each.\nAttorney General Morgan and Deputy Attorney General Vanore for the State.\nJames M. Shannonhouse, Jr., for defendant appellant." }, "file_name": "0202-01", "first_page_order": 222, "last_page_order": 239 }