State v. WombleAnnotate this Case
233 S.E.2d 534 (1977)
292 N.C. 455
STATE of North Carolina v. Willie Henderson WOMBLE.
Supreme Court of North Carolina.
April 14, 1977.
*536 Atty. Gen., Rufus L. Edmisten and Associate Atty., Elizabeth C. Bunting, Raleigh, for the State.
Felix B. Clayton and William Land Parks, Durham, for defendant-appellant.
Defendant first contends that he was deprived of his liberty without due process of law under the Fifth and Fourteenth Amendments to the United States Constitution and under Article I, Section 19, of the North Carolina Constitution. This contention is based upon the premise that the felony-murder rule relieves the prosecution of the burden of proving beyond a reasonable doubt every element of the crime of first degree murder. More particularly, defendant objects to the operation of the felony-murder rule upon the ground that it relieves the State of the necessity of proving actual malice on the part of defendant at the time he committed the crime. For this proposition, he cites In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), and Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975).
Defendant's argument is not well taken and has been rejected by this Court in State v. Swift, 290 N.C. 383, 226 S.E.2d 652 (1976). In Swift, we held that Mullaney did not signal the demise of our felony-murder rule, as stated in G.S. 14-17. The Court in Mullaney condemned a law of the State of Maine which affirmatively shifted the burden of proving a critical element of the State's case to the defendant. The holding of the case was that "the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case." 421 U.S. at 704, 95 S. Ct. at 1892, 44 L. Ed. 2d at 522.
The felony-murder rule in this jurisdiction is contained in G.S. 14-17, and provides in pertinent part:"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, kidnapping, burglary or other felony, shall be deemed to be murder in the first degree and shall be punished with death. . ." (By virtue of the decision of the Supreme Court of the United States in Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976), and the provisions of the 1973 Session Laws, c. 1201, s. 7 (1974 Session), the punishment for first degree murder under this statute is now life imprisonment rather than death. See State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976).)
This rule does not place any burden of proof upon a criminal defendant. In present case, the State was required to prove, beyond a reasonable doubt, that a murder was committed in the perpetration or attempted perpetration of a robbery, and that defendant participated in that crime. Upon a finding by the jury that these elements are proved beyond a reasonable doubt, defendant is, by statute, guilty of first degree *537 murder. There is no requirement in the statutory definition of the crime that the State prove malice, premeditation or deliberation. Thus, the State is not relieved of the burden of proving malice, since malice is not an element of the crime. Further, no burden is placed upon a defendant to prove or disprove any of the elements of the crime contained in G.S. 14-17.
In his charge to the jury, the trial judge clearly placed the burden of proving every element of the crime upon the State. The judge also properly charged that the burden of proving an alibi did not rest upon defendant but rather the State had the burden of proving beyond a reasonable doubt that defendant participated in the crime. Accordingly, since no burden of proof was placed upon defendant under G.S. 14-17, we are of the opinion that the felony-murder rule is constitutionally sound and this assignment is without merit. See Evans v. State, 28 Md.App. 640, 349 A.2d 300 (Md.App.1975).
Defendant next contends that the trial judge improperly recapitulated the evidence. The improprieties about which defendant now complains were not objected to at trial. Therefore, we apply the rule that objections to that portion of the charge which reviews the evidence and states the contentions of the parties must be made before the jury retires so as to give the trial judge an opportunity to correct any misstatements. Otherwise, any objection to the misstatements will be deemed to have been waived and will not be considered on appeal. State v. Cawthorne, 290 N.C. 639, 227 S.E.2d 528 (1976); State v. Watson, 287 N.C. 147, 214 S.E.2d 85 (1975); State v. Gaines, 283 N.C. 33, 194 S.E.2d 839 (1973); State v. Virgil, 276 N.C. 217, 172 S.E.2d 28 (1970). Despite this waiver, we have examined the charge and have been unable to locate any material misstatements in the evidence sufficient to warrant a new trial.
In several assignments of error, defendant contends that there was no evidence which would connect defendant with the robbery and the murder of Mr. Bullock. Defendant did not make a motion for judgment as of nonsuit or for dismissal pursuant to G.S. 15-173 at the close of all the evidence. Hence, we consider this contention under G.S. 15-173.1 as a challenge to the sufficiency of the State's evidence. State v. McKinney, 288 N.C. 113, 215 S.E.2d 578 (1975); State v. Rigsbee, 285 N.C. 708, 208 S.E.2d 656 (1974). Therefore, we review the evidence and apply the well settled and long-standing rule that:". . . On such motion the evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable intendment thereon and every reasonable inference therefrom. Contradictions and discrepancies, even in the State's evidence, are for the jury to resolve and do not warrant nonsuit. Only the evidence favorable to the State is considered, and defendant's evidence relating to matters of defense or defendant's evidence in conflict with that of the State is not considered.. . ." State v. Everette, 284 N.C. 81, 84, 199 S.E.2d 462, 465 (1973).
In present case, the evidence tended to show that on 18 November 1975, Lois Marie Bullock saw two black males enter the Food Mart in Butner, North Carolina. The two males followed her father, Mr. Bullock, behind the counter of the store. She then saw one of the men shoot her father. The males then fled from the store on foot. The male who shot her father wore a red and black or red and blue bandanna over the lower portion of his face. Mr. Bullock died as a result of the wounds inflicted. From defendant's statement to Officer Leathers, it appeared that defendant was paid twenty dollars to be the "lookout" for an armed robbery of a store in Butner. One of the actual perpetrators of the crime, Joe Perry, was noted by defendant in his statement as wearing a red and blue handkerchief around his neck and as being armed with a weapon. Defendant was paid the twenty dollars after the robbery and told by Perry not to talk to anyone about the robbery. We hold that this evidence considered in the light most favorable to the State is sufficient to be submitted *538 to the jury. This assignment is overruled.
Finally, defendant assigns error to the trial judge's signing of the judgment. For this proposition, he cites no authority but rather he recapitulates certain arguments which were advanced under his other assignments. In State v. McMorris, 290 N.C. 286, 225 S.E.2d 553 (1976), we held that such an exception raises nothing for review under Rule 28 of the North Carolina Rules of Appellate Procedure. Accordingly, since we have already examined all the issues purportedly raised under this assignment and answered them unfavorably to defendant, we overrule this assignment.
Our examination of the entire record discloses that defendant had a fair trial, free from prejudicial error.