State v. PooleAnnotate this Case
258 S.E.2d 339 (1979)
298 N.C. 254
STATE of North Carolina v. Aubrey Lewis POOLE.
Supreme Court of North Carolina.
October 3, 1979.
*341 Jack R. Harris and Edwin A. Pressly, Statesville, for defendant.
Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Elizabeth C. Bunting, Raleigh, for the State.
In his sixteenth assignment of error, the defendant claims the trial court erred in failing to submit the issue of second degree murder to the jury. We agree; therefore, the defendant must be granted a new trial.
Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. G.S. 14-17; State v. Robbins, 275 N.C. 537, 169 S.E.2d 858 (1969).
Murder in the second degree is the unlawful killing of a human being with malice but without premeditation and deliberation. State v. Foust, 258 N.C. 453, 128 S.E.2d 889 (1963).
Premeditation means thought beforehand for some length of time, however short. State v. Buchanan, 287 N.C. 408, 215 S.E.2d 80 (1975).
Deliberation means an intention to kill, executed by the defendant in a cool state of blood, in furtherance of a fixed design to gratify a feeling of revenge or to accomplish some unlawful purpose. . . State v. Faust, 254 N.C. 101, 118 S.E.2d 769 (1961).
The jury should be instructed on a lesser included offense when there is evidence from which the jury could find that such lesser included offense was committed. State v. Fleming, 296 N.C. 559, 251 S.E.2d 430 (1979); State v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971). Error in failing to submit the question of defendant's guilt of a lesser degree of the same crime is not *342 cured by a verdict of guilty of the offense charged because it cannot be known whether the jury would have convicted of a lesser degree if the different permissible degrees arising on the evidence had been correctly submitted to the jury. State v. Duboise, supra.
Here, there is some evidence from which the jury could infer that the defendant killed Vanderburg without premeditation and deliberation. The evidence discloses that the defendant had a conversation with Vanderburg both inside and outside the bar. Caldwell did not overhear those conversations, but the defendant did tell Caldwell while apologizing to him that his friend Vanderburg "had gone for bad." Immediately after the exchange of words between the defendant and Vanderburg, defendant ran to his pickup truck, pulled out his rifle and clip, "slung" the barmaid out of the way when she tried to intercede, and then the defendant shot Vanderburg once.
From this evidence a jury could infer that the defendant did not think before acting and did not act coolly and calmly with premeditation and deliberation. Therefore, it was error for the trial court not to instruct on second degree murder. This is not to say that it was error for the trial court to instruct on first degree murder. The circumstantial evidence of premeditation and deliberation cuts both ways on the facts of this case, and the court should have instructed on both first and second degree murder.
Assuming arguendo that there was no positive evidence of the absence of premeditation and deliberation, the trial court was still required to submit the issue of second degree murder to the jury. In the instant case the state relied upon premeditation and deliberation to support a conviction of murder in the first degree. In State v. Harris, 290 N.C. 718, 730, 228 S.E.2d 424, 432 (1976), we held that, "in all cases in which the State relies upon premeditation and deliberation to support a conviction of murder in the first degree, the trial court must submit to the jury an issue of murder in the second degree." This requirement is present because premeditation and deliberation are operations of the mind which must always be proved, if at all, by circumstantial evidence. If the jury chooses not to infer the presence of premeditation and deliberation, it should be given the alternative of finding the defendant guilty of second degree murder. State v. Keller, 297 N.C. 674, 256 S.E.2d 710 (1979).
For the above two reasons, the defendant is entitled to a new trial.
We note that the appeal of the assault conviction is not properly before us as the Court of Appeals has original jurisdiction of appeals of misdemeanor convictions. G.S. 7A-27. It would have been the better practice for the trial judge to have imposed a separate sentence for the assault conviction and then run it concurrently with the murder sentence, if that is what he desired to accomplish.
We shall comment only briefly upon those of his remaining assignments of error which raise issues likely to recur on retrial.
In his eighth assignment of error, defendant raises two issues concerning hearsay statements that the trial court admitted into evidence over defendant's objection.
Caldwell testified that when the defendant ran to his pickup truck to get his rifle, the barmaid ran up to the truck and said, "Pee Wee, stop, don't do it." This statement is clearly admissible as a "spontaneous and instinctive declaration of the witness springing out of the transaction and relating to the contemporaneous acts" of the defendant. State v. Bethea, 186 N.C. 22, 25, 118 S.E. 800, 801 (1923).
Detective Dagenhart testified that Caldwell told him that, "he heard his (the defendant's) name mentioned as Pee Wee." This statement appears to contain double hearsay because it states what Caldwell told the detective that he heard someone else say. What Caldwell heard someone else say has been discussed above and found to meet a hearsay exception. The detective's testimony about what Caldwell *343 told him corroborates Caldwell's testimony because Caldwell had already testified that the barmaid called the defendant, "Pee Wee." Testimony by one witness that corroborates the testimony of another witness is admissible for that purpose and is not hearsay since it is not offered to prove the truth of the matter asserted therein. State v. Best, 280 N.C. 413, 186 S.E.2d 1 (1972). The prior statement should be considered only for the purpose of corroboration, and the trial court should so instruct the jury. However, when the limiting instruction is not asked for by the defendant, it is not error if it is not given. State v. Bryant, 282 N.C. 92, 191 S.E.2d 745 (1972), cert. denied, 410 U.S. 958, 93 S. Ct. 1432, 35 L. Ed. 2d 691 (1973).
We deem it unnecessary to discuss defendant's remaining assignments of error, inasmuch as the matters which gave rise to them probably will not recur on retrial.
BROCK, J., did not participate in the consideration or decision of this case.
HUSKINS, Justice, dissenting in part.
This Court held in State v. Harris, 290 N.C. 718, 228 S.E.2d 424 (1976), that "in all cases in which the State relies upon premeditation and deliberation to support a conviction of murder in the first degree, the trial court must submit to the jury an issue of murder in the second degree." We reaffirmed that holding in State v. Keller, 297 N.C. 674, 256 S.E.2d 710 (1979). On further reflection, however, I am convinced that Harris and Keller perpetuate an unnecessary refinement in the law.
Submission of a lesser included offense when there is no evidence to support the milder verdict is not required when the indictment charges felony murder, arson, burglary, robbery, rape, larceny, felonious assault, or any other felony whatsoever. In all such cases if the evidence tends to show that the crime charged in the indictment was committed and there is no evidence tending to show commission of a crime of lesser degree, the court correctly refuses to charge on unsupported lesser degrees. The presence of evidence tending to show commission of a crime of lesser degree is the determinative factor. State v. Fleming, 296 N.C. 559, 251 S.E.2d 430 (1979); State v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971), and cases there cited; State v. Hicks, 241 N.C. 156, 84 S.E.2d 545 (1954).
For the reasons stated I no longer support the majority view which requires the court to submit second degree murder as a permissible verdict in a prosecution for premeditated first degree murder when there is no evidence to support the lesser degree.