Appeal by defendant from Griffin, J., 17 November 1980 Session of Mecklenburg Superior Court.
Branch, Chief Justice. Justice Copeland dissenting. Justices Huskins and Exum join in the dissenting opinion.
First-degree murder is defined by statute as follows:
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 attempted perpetration of any arson, rape, or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon, shall be deemed to be murder in the first degree, and any person who commits such murder shall be punished with death or imprisonment in the state's prison for life as the court shall determine pursuant to G.S. 15A-2000.
G.S. 14-17. (Emphasis added.) Defendant's conviction was pursuant to the felony-murder portion of the above statute and was based upon the emphasized language.
Defendant argues that this Court should adopt the merger doctrine espoused in People v. Ireland, 70 Cal. 2d 522, 450 P. 2d 580, 75 Cal. Rptr. 188 (1969), which would bar his conviction of first-degree felony murder based upon the underlying felony of discharging a firearm into an occupied vehicle. The Ireland case held that in California "a . . . felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged." (Emphasis in original.) Id. at 539, 450 P. 2d at 590, 75 Cal. Rptr. at 198. The felony of discharging a firearm into occupied property, G.S. 14-34.1, appears to be such an integral part of the homicide in instant case as to bar a felony-murder conviction under the California merger doctrine. This Court, however, has expressly upheld convictions for first-degree felony murder based on the underlying felony of discharging a firearm into occupied property. State v. Swift, 290 N.C. 383, 226 S.E.2d
652 (1976); State v. Williams, 284 N.C. 67, 199 S.E.2d 409 (1973); State v. Capps, 134 N.C. 622, 46 S.E. 730 (1904). We elect to follow our own valid precedents.
Defendant maintains that considerations of due process and equal protection of the law prohibit his conviction of first-degree murder based on anything less than a finding of premeditation and deliberation. Defendant relies on the case of Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975), which prohibits the conclusive presumption of any element of a criminal offense. We met this identical contention in a case involving firing into an occupied building, State v. Swift, supra, wherein we stated:
We do not believe that Mullaney applies to this situation because G.S. 14-17 is a rule of law and not a presumption. If G.S. 14-17 is compared with murder in the first degree based on premeditation and deliberation, it might be said that the practical effect of G.S. 14-17 is that premeditation and deliberation are presumed when a murder is committed in the perpetration of a felony described under G.S. 14-17. State v. Doss, 279 N.C. 413, 183 S.E.2d 671 (1971). However, G.S. 14-17 actually involves no presumption at all. Under G.S. 14-17 premeditation and deliberation are not elements of the crime of felony-murder. Thus, the contention of defendant that the act of firing a firearm into an occupied dwelling has no rational connection with premeditation and deliberation is without merit. The only requirement for purposes of G.S. 14-17 is that the felony involved be one of the specified felonies or an unspecified felony within the purview of G.S. 14-17. We have held in State v. Williams, supra, that G.S. 14-34.1 is such a felony because of the reasonable correlation between committing a crime under G.S. 14-34.1 and the possibility of death occurring.
It is a well established rule that when the law and evidence justify the use of the felony-murder rule, then the State is not required to prove premeditation and deliberation, and neither is the court required to submit to the jury second-degree murder or manslaughter unless there is evidence to support it. State v. Doss, 279 N.C. 413, 183 S.E.2d 671 (1971). Justice Parker (later Chief Justice), speaking
for our Court said in State v. Maynard, 247 N.C. 462, 469, 101 S.E.2d 340, 345 (1958):
"Where a murder is committed in the perpetration or an attempt to perpetrate a robbery from the person, G.S. 14-17 pronounces it murder in the first degree, irrespective of premeditation or deliberation or malice aforethought. [Citations omitted.]"
Id. at 407-08, 226 S.E.2d at 668-69.
Based upon the holding and rationale of State v. Swift, supra, we reject defendant's contentions that our felony-murder statute violates his constitutional rights of due process and equal protection.
Defendant futher contends that the legislature did not intend that the discharging of a firearm into occupied property be included as an underlying felony for the purposes of the felony-murder rule. In 1977 G.S. 14-17 was revised by the General Assembly. The earlier statute had defined felony murder as a killing "committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary, or other felony." (Emphasis added.) 1949 N.C. Sess. Laws Ch. 299 § 1. This vague language required judicial interpretation, which this Court provided by interpreting the "other felony" language in G.S. 14-17 to refer to any felony which "creates any substantial foreseeable human risk and actually results in the loss of life." State v. Thompson, 280 N.C. 202, 211, 185 S.E.2d 666, 672 (1972). The revised statute expanded the listed felonies and limited the "other felonies" which would support a charge of felony murder to those "committed or attempted with the use of a deadly weapon." 1977 N.C. Sess. Laws Ch. 406 § 1.
Where the language of a statute is clear and unambiguous, there is no room for judicial construction, and the courts must give the statute its plain meaning. State v. McMillan, 233 N.C. 630, 65 S.E.2d 212 (1951). Contrary to defendant's contentions, the unambiguous language of the 1977 revision makes it clear that felonies "committed or attempted with the use of a deadly weapon" will support a conviction of first-degree murder under the felony-murder rule.
Defendant notes in his brief that England, the birthplace of the felony-murder doctrine, abolished the rule by statute in 1957. We believe this approach represents the proper response to dissatisfaction with a statutory rule of law. Our General Assembly remains free to abolish felony murder or, as the Courts did in California, to limit its effect to those other felonies not "included in fact within" or "forming an integral part of" the underlying felony. As recently as 1977, however, our legislature chose to reaffirm and clarify the offense. We do not believe it is the proper role of this Court to abolish or judicially limit a constitutionally valid statutory offense clearly defined by the legislature.
Defendant contends that the court should have charged the jury that they could return a guilty verdict only if they found that defendant fired into the automobile without justification or excuse. Defendant argues that he was within his rights in attempting to detain the victims after they committed a larceny in his presence. G.S. 15A-404 provides:
(b) When Detention Permitted. -- A private person may detain another person when he has probable cause to believe that the person detained has committed in his presence:
(2) A breach of the peace,
(3) A crime involving physical injury to another person, or
(4) A crime involving theft or destruction of property.
(c) Manner of Detention. -- The detention must be in a reasonable manner considering the offense involved and the circumstances of the detention.
While we agree defendant had the authority to detain the victim, two facts make it impossible for this statute to justify or excuse ...