{ "id": 4777604, "name": "STATE OF NORTH CAROLINA v. ADAM GLIDDEN", "name_abbreviation": "State v. Glidden", "decision_date": "1986-08-12", "docket_number": "No. 692PA85", "first_page": "557", "last_page": "567", "citations": [ { "type": "official", "cite": "317 N.C. 557" } ], "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": "334 S.E. 2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": -1 }, { "cite": "76 N.C. App. 653", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527780 ], "year": 1985, "opinion_index": -1, "case_paths": [ "/nc-app/76/0653-01" ] }, { "cite": "235 S.E. 2d 64", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "parenthetical": "attempt to obtain property by false pretenses is necessarily done with intent to deceive" } ], "opinion_index": 0 }, { "cite": "292 N.C. 643", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572354, 8572325, 8572301, 8572245, 8572277 ], "year": 1977, "pin_cites": [ { "parenthetical": "attempt to obtain property by false pretenses is necessarily done with intent to deceive" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0643-05", "/nc/292/0643-04", "/nc/292/0643-03", "/nc/292/0643-01", "/nc/292/0643-02" ] }, { "cite": "232 S.E. 2d 460", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "parenthetical": "attempt to obtain property by false pretenses is necessarily done with intent to deceive" } ], "opinion_index": 0 }, { "cite": "32 N.C. App. 478", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551538 ], "year": 1977, "pin_cites": [ { "parenthetical": "attempt to obtain property by false pretenses is necessarily done with intent to deceive" } ], "opinion_index": 0, "case_paths": [ "/nc-app/32/0478-01" ] }, { "cite": "157 S.E. 2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "272 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570652 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/272/0067-01" ] }, { "cite": "28 N.C. L. Rev. 103", "category": "journals:journal", "reporter": "N.C. L. Rev.", "weight": 2, "year": 1949, "pin_cites": [ { "parenthetical": "historical discussion" } ], "opinion_index": 0 }, { "cite": "195 S.E. 1", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1938, "pin_cites": [ { "parenthetical": "attempt to commit crime against nature is infamous offense" } ], "opinion_index": 0 }, { "cite": "213 N.C. 45", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626411 ], "year": 1938, "pin_cites": [ { "parenthetical": "attempt to commit crime against nature is infamous offense" } ], "opinion_index": 0, "case_paths": [ "/nc/213/0045-01" ] }, { "cite": "52 S.E. 2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1949, "pin_cites": [ { "parenthetical": "attempt to commit first degree burglary is infamous offense" }, { "page": "888" } ], "opinion_index": 0 }, { "cite": "230 N.C. 272", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629576 ], "weight": 2, "year": 1949, "pin_cites": [ { "parenthetical": "attempt to commit first degree burglary is infamous offense" }, { "page": "284" } ], "opinion_index": 0, "case_paths": [ "/nc/230/0272-01" ] }, { "cite": "94 S.E. 2d 853", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "parenthetical": "attempt to commit common law robbery is infamous offense" } ], "opinion_index": 0 }, { "cite": "244 N.C. 737", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219533 ], "year": 1956, "pin_cites": [ { "parenthetical": "attempt to commit common law robbery is infamous offense" } ], "opinion_index": 0, "case_paths": [ "/nc/244/0737-01" ] }, { "cite": "138 S.E. 2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "parenthetical": "attempt to commit armed robbery is infamous offense" } ], "opinion_index": 0 }, { "cite": "262 N.C. 679", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571084 ], "year": 1964, "pin_cites": [ { "parenthetical": "attempt to commit armed robbery is infamous offense" } ], "opinion_index": 0, "case_paths": [ "/nc/262/0679-01" ] }, { "cite": "142 S.E. 2d 691", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "264 N.C. 746", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575136 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/264/0746-01" ] }, { "cite": "296 S.E. 2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1982, "pin_cites": [ { "parenthetical": "attempted receipt of stolen property is not infamous" }, { "page": "439" }, { "page": "438-39" }, { "page": "438" }, { "page": "439" } ], "opinion_index": 0 }, { "cite": "307 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560498 ], "weight": 6, "year": 1982, "pin_cites": [ { "parenthetical": "attempted receipt of stolen property is not infamous" }, { "page": "9" }, { "page": "9" }, { "page": "9" }, { "page": "10" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0001-01" ] }, { "cite": "345 S.E. 2d 365", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "parenthetical": "solicitation to commit common law robbery is infamous crime" }, { "page": "369" } ], "opinion_index": 0 }, { "cite": "317 N.C. 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4778022 ], "weight": 2, "year": 1986, "pin_cites": [ { "parenthetical": "solicitation to commit common law robbery is infamous crime" }, { "page": "170" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0164-01" ] }, { "cite": "442 U.S. 114", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1531927 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/us/442/0114-01" ] }, { "cite": "334 S.E. 2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "101" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 653", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527780 ], "year": 1985, "pin_cites": [ { "page": "654" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0653-01" ] }, { "cite": "235 S.E. 2d 64", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 1 }, { "cite": "292 N.C. 643", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572354, 8572325, 8572301, 8572245, 8572277 ], "year": 1977, "opinion_index": 1, "case_paths": [ "/nc/292/0643-05", "/nc/292/0643-04", "/nc/292/0643-03", "/nc/292/0643-01", "/nc/292/0643-02" ] }, { "cite": "232 S.E. 2d 460", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "462" } ], "opinion_index": 1 }, { "cite": "32 N.C. App. 478", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551538 ], "year": 1977, "opinion_index": 1, "case_paths": [ "/nc-app/32/0478-01" ] }, { "cite": "116 S.E. 2d 192", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1960, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 1 }, { "cite": "253 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622094 ], "year": 1960, "opinion_index": 1, "case_paths": [ "/nc/253/0047-01" ] }, { "cite": "259 S.E. 2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 1 }, { "cite": "298 N.C. 476", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572766 ], "year": 1979, "opinion_index": 1, "case_paths": [ "/nc/298/0476-01" ] }, { "cite": "240 S.E. 2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 1 }, { "cite": "294 N.C. 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570942 ], "year": 1978, "opinion_index": 1, "case_paths": [ "/nc/294/0090-01" ] }, { "cite": "195 S.E. 1", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1938, "opinion_index": 1 }, { "cite": "213 N.C. 45", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626411 ], "year": 1938, "opinion_index": 1, "case_paths": [ "/nc/213/0045-01" ] }, { "cite": "52 S.E. 2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1949, "pin_cites": [ { "parenthetical": "Ervin, J., dissenting" }, { "page": "884" }, { "page": "\u00a7 14-3" }, { "page": "885" } ], "opinion_index": 1 }, { "cite": "230 N.C. 272", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629576 ], "weight": 3, "year": 1949, "pin_cites": [ { "parenthetical": "Ervin, J., dissenting" } ], "opinion_index": 1, "case_paths": [ "/nc/230/0272-01" ] }, { "cite": "138 S.E. 2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 1 }, { "cite": "262 N.C. 679", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571084 ], "year": 1964, "opinion_index": 1, "case_paths": [ "/nc/262/0679-01" ] }, { "cite": "345 S.E. 2d 365", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 1 }, { "cite": "317 N.C. 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4778022 ], "year": 1986, "opinion_index": 1, "case_paths": [ "/nc/317/0164-01" ] } ], "analysis": { "cardinality": 888, "char_count": 23993, "ocr_confidence": 0.824, "pagerank": { "raw": 1.4241978088714085e-07, "percentile": 0.6496185684956922 }, "sha256": "09ec4c5fba98c6f1242d0ab819e8b96ee84b338c2234f934066ed0b5f450c957", "simhash": "1:2ef9e1362469a75a", "word_count": 4019 }, "last_updated": "2023-07-14T14:55:24.016055+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. ADAM GLIDDEN" ], "opinions": [ { "text": "MITCHELL, Justice.\nThe issue before this Court is whether the misdemeanor of transmitting an unsigned threatening letter in violation of N.C.G.S. \u00a7 14-394 is an offense which is made a felony by N.C.G.S. \u00a7 14-3(b). We conclude that the transmitting of such a letter does not fall within any of the classes of misdemeanors made felonious by N.C.G.S. \u00a7 14-3(b). Accordingly, we reverse the decision of the Court of Appeals.\nAfter a presentment by the grand jury, the defendant was indicted for fourteen counts of feloniously, in secrecy and malice, transmitting unsigned threatening letters between the dates of 30 July 1982 and 18 February 1983. He was convicted by a jury of ten felony counts of transmitting unsigned threatening letters in violation of N.C.G.S. \u00a7 14-394 and N.C.G.S. \u00a7 14-3(b). The trial court sentenced him to a presumptive term of three years on each count, combined into two groups of concurrent sentences totaling an active sentence of six years.\nThe State prosecuted the defendant and obtained his felony convictions by relying on the combined effect of N.C.G.S. \u00a7 14-394 and N.C.G.S. \u00a7 14-3(b). The first statute, N.C.G.S. \u00a7 14-394, makes it unlawful to write and transmit an unsigned threatening letter. Standing alone, such an offense is a misdemeanor. State v. Glidden, 76 N.C. App. at 654, 334 S.E. 2d at 101; N.C.G.S. \u00a7 14-1 (1981). By alleging that the offense was committed \u201cin secrecy and malice,\u201d the State was able to elevate the offense and procure felony convictions under N.C.G.S. \u00a7 14-3(b). That statute provides:\nIf a misdemeanor offense as to which no specific punishment is prescribed be infamous, done in secrecy and malice, or with deceit and intent to defraud, the offender shall, except where the offense is a conspiracy to commit a misdemeanor, be guilty of a class H felony.\nN.C.G.S. \u00a7 14-30\u00bb) (1981).\nThe defendant appealed to the Court of Appeals contending that his equal protection and due process rights were violated when the State charged him with felonies by combining the two statutes. The defendant first contended that the elements of secrecy and malice are inherent in both statutes. The defendant contended that where the same act is punishable either as a felony or a misdemeanor, and the elements essential to a conviction of either are exactly the same, a conviction under the felony statute works a denial of both due process and equal protection. He argued that since the elements of both statutes are the same, the prosecutor has absolute discretion to decide whether a violation is a misdemeanor or a felony, resulting in an equal protection violation. He also argued that the combination of the two statutes results in an ambiguous and vague sentencing provision in violation of due process.\nThe Court of Appeals rejected each of the defendant\u2019s constitutional arguments. Relying on United States v. Batchelder, 442 U.S. 114, 60 L.Ed. 2d 755 (1979), it held that the State may elect to prosecute for either a felony offense under the combined statutes or the misdemeanor offense proscribed in N.C.G.S. \u00a7 14-394 alone.\nAlthough we find error and reverse the Court of Appeals\u2019 decision in the present case, we do not do so on constitutional grounds. We do not address or decide the constitutional issues raised by the defendant. Instead, we hold that N.C.G.S. \u00a7 14-3(b) does not convert a violation of N.C.G.S. \u00a7 14-394 into a felony in any case.\nThe majority of cases considering N.C.G.S. \u00a7 14-3(b) have involved a solicitation or attempt to commit some specific criminal offense which the State contended was an \u201cinfamous offense\u201d and, therefore, a felony under the terms of this statute, E.g., State v. Mann, 317 N.C. 164, 345 S.E. 2d 365 (1986) (solicitation to commit common law robbery is infamous crime); State v. Hageman, 307 N.C. 1, 296 S.E. 2d 433 (1982) (attempted receipt of stolen property is not infamous); State v. Harward, 264 N.C. 746, 142 S.E. 2d 691 (1965); State v. Parker, 262 N.C. 679, 138 S.E. 2d 496 (1964) (attempt to commit armed robbery is infamous offense); State v. McNeely, 244 N.C. 737, 94 S.E. 2d 853 (1956) (attempt to commit common law robbery is infamous offense); State v. Surles, 230 N.C. 272, 52 S.E. 2d 880 (1949) (attempt to commit first degree burglary is infamous offense); State v. Spivey, 213 N.C. 45, 195 S.E. 1 (1938) (attempt to commit crime against nature is infamous offense). See State v. Page, 32 N.C. App. 478, 232 S.E. 2d 460, disc. rev. denied, 292 N.C. 643, 235 S.E. 2d 64 (1977) (attempt to obtain property by false pretenses is necessarily done with intent to deceive). See generally Note, Criminal Law \u2014 Infamous Offenses \u2014 Attempted Burglary Punishable as a Felony, 28 N.C. L. Rev. 103 (1949) (historical discussion).\nIn determining whether an offense is \u201cinfamous\u201d and shall be punished as a felony for that reason under N.C.G.S. \u00a7 14-3(b), this Court has consistently looked to the nature of the offense. Id. In the most recent case considering that issue, we stated that: \u201cA crime is \u2018infamous\u2019 within the meaning of the statute if it is an act of depravity, involves moral turpitude, and reveals a heart devoid of social duty and a mind fatally bent on mischief . . . .\u201d State v. Mann, 317 N.C. at 170, 345 S.E. 2d at 369. The \u201cinfamous\u201d nature of the offense was the determinative consideration rather than the particular circumstances of the individual case. It suffices to say that we conclude that the crime of transmitting an unsigned threatening letter is not such an act of depravity as to be an \u201cinfamous\u201d offense made felonious by N.C.G.S. \u00a7 14-3(b).\nWe turn then to consider whether the offense of transmitting an unsigned threatening letter falls within the other classes of misdemeanors made felonious by N.C.G.S. \u00a7 14-3(b). We conclude that it does not.\nIn State v. Hageman, 307 N.C. 1, 296 S.E. 2d 433 (1982), this Court considered whether the attempted receipt of stolen property fell within one of the three classes of misdemeanors made felonies by N.C.G.S. \u00a7 14-3(b). We first determined that the offense of attempting to receive stolen property is not of such a degrading nature as to be classified as an \u201cinfamous\u201d crime under N.C.G.S. \u00a7 14-3(b). 307 N.C. at 9, 296 S.E. 2d at 439. We next considered whether the offense could fall within the remaining two classes. In construing the meaning of the words \u201cdone in secrecy and malice\u201d and \u201cwith deceit and intent to defraud,\u201d as used in the statute, we adopted that part of the dissent of Justice Ervin in State v. Surles, 230 N.C. 272, 284, 52 S.E. 2d 880, 888 (1949), where he wrote:\nWhen the Legislature used the words \u201cdone in secrecy and malice, or with deceit and intent to defraud,\u201d to describe the second and third classes of aggravated offenses included in the statute now codified as G.S. 14-3, its manifest purpose was to describe offenses in which either secrecy and malice, or the employment of deceit with intent to defraud are elements necessary to their criminality as defined by law.\n307 N.C. at 9, 296 S.E. 2d at 438-39. We then held that the offense of attempted receipt of stolen property did not include secrecy, malice, deceit or intent to defraud as necessary elements of the crime.\nIn determining whether a misdemeanor is an offense \u201cdone in secrecy and malice,\u201d then, the courts must apply a definitional test and determine whether both \u201csecrecy and malice\u201d are necessary or inherent elements of the offense. This approach is consistent with the general rule that criminal statutes are to be strictly construed against the State. State v. Hageman, 307 N.C. at 9, 296 S.E. 2d at 438; State v. Ross, 272 N.C. 67, 157 S.E. 2d 712 (1967). Further, this approach is mandated by Hageman.\nHaving set forth the proper test, we conclude that the offense of transmitting unsigned threatening letters does not fall within that class of offenses which are by definition \u201cdone in secrecy and malice\u201d and, therefore, felonies. Secrecy is not an element inherent in the offense. Secrecy is defined as \u201cthe habit or practice of keeping secrets or maintaining privacy or concealment.\u201d Webster\u2019s Ninth Collegiate Dictionary, 1061 (1984). Although N.C.G.S. \u00a7 14-394 requires that the threatening letters be unsigned, it does not require that the sender have maintained privacy or concealed his identity in order to be convicted. The sender could transmit an unsigned threatening letter while at the same time exposing his identity. The threatening letter could contain clues allowing for the unmistakable identification of the sender, such as personal facts and recognizable handwriting. Likewise, the sender could hand deliver the unsigned letter thereby destroying any possibility of anonymity and secrecy. The sender could easily violate N.C.G.S. \u00a7 14-394 by transmitting an unsigned threatening letter without maintaining secrecy. Therefore, we conclude that the offense of transmitting unsigned threatening letters does not by definition include the elements of secrecy and malice.\nFor similar reasons, the offense of transmitting unsigned threatening letters does not fall within the third class of misdemeanors made felonious by N.C.G.S. \u00a7 14-3(b). It is entirely possible for such an offense to be committed without \u201cdeceit and intent to defraud.\u201d Therefore, such offenses are not by definition done \u201cwith deceit and intent to defraud\u201d and are not elevated to the level of felonies on that basis.\nA prosecutor has neither the discretion nor the authority, under either N.C.G.S. \u00a7 14-394 or N.C.G.S. \u00a7 14-3(b), to charge a person with feloniously transmitting unsigned threatening letters. The trial court erred in the present case by entering its judgment punishing the defendant as a felon under N.C.G.S. \u00a7 14-3(b).\nFor the foregoing reasons, the trial court\u2019s judgment sentencing the defendant as a felon must be vacated. The case must be remanded to the Superior Court, New Hanover County, for judgment and sentencing as a misdemeanor pursuant to N.C.G.S. \u00a7 14-3(a). State v. Hageman, 307 N.C. 1, 10, 296 S.E. 2d 433, 439 (1982). Accordingly, the decision of the Court of Appeals is reversed, and the judgment of the trial court is vacated. This case is remanded to the Court of Appeals for its further remand to the Superior Court, New Hanover County, for further proceedings consistent with this opinion.\nReversed, judgment vacated, and remanded.", "type": "majority", "author": "MITCHELL, Justice." }, { "text": "Justice Meyer\nconcurring.\nAlthough I agree with the result reached by the majority, I cannot subscribe to its rationale. The \u201cdefinitional test\u201d so readily adopted by the majority to determine whether a misdemeanor may be \u201celevated to the level of felon[y]\u201d raises the very constitutional principles the majority refuses to address and its application defies logic and common sense.\nThis case requires the construction of several statutes and therefore requires an examination of legislative intent. In re Hardy, 294 N.C. 90, 240 S.E. 2d 367 (1978). Legislative intent may be ascertained from the words as well as the nature and purpose of the statute and the consequences which would follow from a construction one way or another. Campbell v. Church, 298 N.C. 476, 259 S.E. 2d 558 (1979).\nThe substantive offense with which the defendant was charged is set out in N.C.G.S. \u00a7 14-394:\nIt shall be unlawful for any person, . . . under whatever name styled, to write and transmit any letter, note, or writing . . . without signing his ... true name thereto, threatening any person . . . with any personal injury or violence or . . . using . . . any language or threats of any kind . . . calculated to intimidate or place in fear any such persons ... as to their personal safety . . ., or using vulgar or obscene language, or using such language which if published would bring such persons into public contempt and disgrace, and any person . . . violating the provisions of this section shall be fined or imprisoned, or both, in the discretion of the court.\nN.C.G.S. \u00a7 14-394 (1981).\nThe offense described by the words of that statute is a misdemeanor by operation of N.C.G.S. \u00a7 14-1 (an offense is a misdemeanor unless (1) it was a felony at common law, (2) it is punishable by death, (3) it is punishable by imprisonment in the state prison, or (4) it is denominated as a felony by statute). See also State v. Robbins, 253 N.C. 47, 116 S.E. 2d 192 (1960). However, N.C.G.S. \u00a7 14-394 does not prescribe \u201cspecific punishment.\u201d Section 14-394 is, therefore, \u201ca misdemeanor offense as to which no specific punishment is prescribed.\u201d N.C.G.S. \u00a7 14-3(b) (1981). That latter statute provides that violators of such offenses shall \u201cbe guilty of a class H felony\u201d if such misdemeanor offenses \u201cbe infamous, done in secrecy and malice, or with deceit and intent to defraud.\u201d Id. (emphasis added).\nThe words of \u00a7 14-3(b) call for two different tests, depending upon which of the three prongs is being considered. A \u201cdefinitional test\u201d is applied in order to determine, for purposes of \u00a7 14-3(b), if an offense \u201cbe infamous.\u201d The definitional test requires an examination of the nature of the offense itself without consideration of the circumstances under which it was committed. See, e.g., State v. Mann, 317 N.C. 164, 345 S.E. 2d 365 (1986); State v. Parker, 262 N.C. 679, 138 S.E. 2d 496 (1964); State v. Spivey, 213 N.C. 45, 195 S.E. 1 (1938). The test is objective; an offense either \u201cbe infamous\u201d or not. I agree with the majority that transmitting unsigned threatening letters is not infamous as that legal concept has been variously defined. See, e.g., State v. Surles, 230 N.C. 272, 52 S.E. 2d 880 (1949) (Ervin, J., dissenting).\nThe second and third prongs of \u00a7 14-3(b) call for an entirely different inquiry. The words of that statute ask whether the offense was \u201cdone in secrecy and malice, or [done] with deceit and intent to defraud.\u201d Whether or not an act was done in some specific manner or done with a specific state of mind depends upon subjective factors to be examined on a case-by-case factual or \u201ctransactional\u201d basis.\nAll but two of the cases cited by the majority in support of its blanket adoption of a \u201cdefinitional test\u201d for \u00a7 14-3(b) are cases examining the first prong of \u00a7 14-3(b): whether an offense \u201cbe infamous.\u201d The majority opinion in State v. Surles, 230 N.C. 272, 52 S.E. 2d 880, although concerned primarily with the \u201cinfamous\u201d nature of attempted burglary, notes almost in passing that \u201c[s]ecrecy is implicit in an act which must be done in the nighttime.\u201d Id. at 277, 52 S.E. 2d at 884. The only other case cited by the majority in which the second or third prong was the basis of decision was State v. Page, 32 N.C. App. 478, 232 S.E. 2d 460, disc. rev. denied, 292 N.C. 643, 235 S.E. 2d 64 (1977), in which the Court of Appeals held that \u201c[a]ny attempt to obtain property by false pretenses necessarily is done with intent to deceive. By its plain language G.S. 14-3(b) makes any attempt to obtain property by false pretenses a felony.\u201d Id. at 481, 232 S.E. 2d at 462.\nBy adopting a definitional test for the application of the second and third prongs of \u00a7 14-3(b), the majority has, in essence, held that, although the legislature might define as a misdemeanor a substantive offense which includes as essential elements that it was committed in secrecy and malice, the offender may be convicted of a class H felony by superimposing \u00a7 14-3(b), depending on whether or not the prosecutor elects to punish the offender as a felon or is aware that such an \u201celevation\u201d is possible. The definitional application of the latter two prongs of \u00a7 14-3(b) would require the prosecutor merely to prove the essential elements of the substantive statutory misdemeanor in order to convict the defendant of a class H felony. If a prosecutor were not aware of \u00a7 14-3(b) or elected for whatever reason not to employ it, he or she would proceed toward a misdemeanor conviction on the face of the plain words of the substantive statute. This amounts to a situation in which the identical conduct of a defendant may result in his conviction either for a two-year misdemeanor or a presumptive three-year felony, depending solely on the unchecked discretion of the prosecutor or his unfamiliarity with \u00a7 14-3(b). It is inconceivable to me that our legislature intentionally would define specific conduct as a misdemeanor in one breath and, in the next, provide that it be punishable as a class H felony.\nA hypothetical example of the operation of the majority\u2019s reasoning might be helpful:\nStatute X sets out the following elements of a misdemeanor but does not provide for specific punishment:\n(1) Taking and carrying away\n(2) the family pet\n(3) of another\n(4) in secrecy\n(5) and with malice.\nBecause the defendant is angry with his neighbors for playing their stereo too loud, he enters the yard of his neighbor at night wearing dark clothing and a mask and places the neighbor\u2019s family pet, Fifi the Poodle, in a burlap sack, carries it away, and releases it in the next county. Defendant is arrested and charged, pursuant to Statute X and \u00a7 14-3(b).\nIf the prosecutor proves each and every element of the misdemeanor defined in Statute X, defendant, by the majority\u2019s interpretation of \u00a7 14-3(b), is guilty of a class H felony. By this interpretation, the majority holds that the legislature has defined the above conduct as a substantive misdemeanor, yet it has provided that one who violates the substantive statute is guilty of a class H felony by operation of a non-substantive statute, \u00a7 14-3(b), if the prosecutor proves no more than each essential element of the substantive misdemeanor!\nIt defies logic and common sense to hold that the legislature intended this result. If the legislature intended that violators of Statute X be convicted as class H felons, why would it label the conduct proscribed by Statute X as a misdemeanor? I believe that the legislature intended to raise to the level of a felony only those misdemeanors which do not have as necessary elements secrecy and malice or fraud and deceit, but which are \u201cdone\u201d with those additional characteristics, i.e., in the manner described in either the second or third prong of \u00a7 14-3(b).\nBeyond the incongruous result of the majority\u2019s interpretation, it squarely raises constitutional issues of due process and questions of statutory ambiguity raised by the defendant in the instant case yet found by the majority unnecessary to address.\nThe majority\u2019s interpretation of the operation of \u00a7 14-3(b) would allow a prosecutor arbitrarily to elect to pursue a felony conviction for an offense, defined by the substantive statute as a misdemeanor, which requires proof of the very elements by which it may be \u201celevated\u201d to felony status. There would be no substantive distinction between the statutorily defined misdemeanor and its \u201celevation\u201d to a class H felony by operation of \u00a7 14-3(b). Viewed another way, every misdemeanor which contains the elements of \u201csecrecy and malice,\u201d but for which specific punishment is not prescribed, automatically becomes a class H felony, despite the legislative designation of the offense as a misdemeanor; the misdemeanor designation is meaningless. I believe that such a scheme raises serious constitutional questions about vagueness, ambiguity, and notice of how prohibited conduct is punishable.\nAs chronicled in Justice Ervin\u2019s lengthy dissent in State v. Surles, 230 N.C. 272, 52 S.E. 2d 880, \u00a7 14-3(b) is of ancient origin; its ancestors have been applied in situations no longer a part of our criminal justice system. It is a vestige of the common law which provided no specific punishment for attempts to commit well-recognized criminal offenses. See id. at 279, 52 S.E. 2d at 885. I admit that I question its modern viability. However, assuming its constitutionality as well as its viability, I perceive that if \u00a7 14-3(b) were to be applied to a violation of N.C.G.S. \u00a7 14-394, it would operate as follows:\nSection 14-394, standing alone, is a general misdemeanor by operation of \u00a7 14-1. Section 14-394 does not contain as essential elements that the prohibited act be committed in secrecy or with malice. For that reason, a prosecutor may elect to charge an offender with a misdemeanor violation and, at trial, must prove only each and every essential element set out in \u00a7 14-394. Upon conviction, the offender will be guilty of the general misdemeanor. However, a prosecutor, upon a belief that the offense described in \u00a7 14-394 was committed in secrecy and with malice, may indict an offender with a felony violation of that statute by operation of \u00a7 14-3(b). The indictment would have to allege that it charged a felony violation of \u00a7 14-394 because it was committed in secrecy and with malice. At trial, the prosecutor would be required to prove beyond a reasonable doubt each and every element of the offense described in \u00a7 14-394 as well as the additional elements of secrecy and malice. Upon such proof, the offender would stand convicted of a class H felony and be punished accordingly. Failure of the prosecutor to prove the additional elements of secrecy and malice would result in a conviction of the lesser-included misdemeanor, \u00a7 14-394. The felony offense and the misdemeanor offense do not punish identical conduct differently; a felony conviction requires proof of two additional elements.\nThis procedure is not susceptible of an equal protection or due process challenge for the same reasons that an indictment for first-degree burglary as opposed to one for second-degree burglary is not constitutionally infirm. First-degree burglary involves the allegation and proof of the additional element that the house was actually occupied at the time of the crime; the \u201cdegree\u201d of the offense charged and tried depends upon the facts of the case. Here, if the facts proved a secret and malicious transmission of unsigned threatening letters, a felony indictment and conviction would be appropriate. Because I believe that the facts proved in the instant case failed to show secrecy, at least, I agree that this defendant was wrongly convicted of the felony.\nIn summary, I believe that the majority reached the right result for the wrong reasons. I also believe that the confusion engendered by \u00a7 14-3(b) bears witness to the need for legislative reconsideration in light of its continuing attempts to provide a sensible, systematic codification of our criminal law and an attendant cohesive, comprehensive scheme for the punishment of criminal offenses.", "type": "concurrence", "author": "Justice Meyer" } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by G. Patrick Murphy, Assistant Attorney General, for the State.", "Shipman & Lea, by Gary K. Shipman and James W. Lea, III, for the defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ADAM GLIDDEN\nNo. 692PA85\n(Filed 12 August 1986)\nAnonymous Threats \u00a7 1\u2014 transmitting unsigned threatening letters \u2014 secrecy and malice \u2014not felonious\nIn a prosecution for secretly and maliciously transmitting unsigned threatening letters, the trial court\u2019s judgment sentencing defendant as a felon was vacated and the case was remanded for sentencing as a misdemeanor because N.C.G.S. \u00a7 14-3(b), which raises to felonies misdemeanors which are infamous or done in secrecy and malice, does not convert a violation of N.C.G.S. \u00a7 14-394 into a felony in any case. The crime of transmitting an unsigned threatening letter is not such an act of depravity as to be an infamous offense; does not fall within that class of offenses which are by definition done in secrecy and malice because, although the letters are required to be unsigned, the sender is not required to have maintained privacy or concealed his identity; and it is entirely possible for such an offense to be committed without deceit and intent to defraud.\nJustice Meyer concurring.\nOn discretionary review of the decision of the Court of Appeals, 76 N.C. App. 653, 334 S.E. 2d 101 (1985), which found no error in the defendant\u2019s trial before Tillery, J., at the 5 September 1983 session of Superior Court, New Hanover County. Heard in the Supreme Court 12 May 1986.\nLacy H. Thornburg, Attorney General, by G. Patrick Murphy, Assistant Attorney General, for the State.\nShipman & Lea, by Gary K. Shipman and James W. Lea, III, for the defendant appellant." }, "file_name": "0557-01", "first_page_order": 593, "last_page_order": 603 }