State v. Rich , 277 N.C. 333 ( 1970 )

177 S.E.2d 422 (1970) 277 N.C. 333

STATE of North Carolina
v.
Vernon Wallace RICH.

No. 45.

Supreme Court of North Carolina.

November 18, 1970.

Clinton Eudy, Salisbury, for defendant appellant.

Robert Morgan, Atty. Gen., Millard R. Rich, Jr., Asst. Atty. Gen., James F. Bullock, Deputy Atty. Gen., for the State.

HUSKINS, Justice:

The sole question involved on this appeal is stated in defendant's brief as follows: "Did the trial court err in submitting this case to jury upon the theory of the defendant's guilt of first-degree murder in that he committed a homicide in perpetrating a robbery."

The evidence discloses that defendant and his accomplices invited the victim into their automobile ostensibly to take him home in return for the case of beer which the victim had bought. They left town on the Brinkle Ferry Road traveling toward the old cemetery. Jim Blumel struck the victim in the head with a bottle and defendant shot him in the back of the head with a .22 caliber pistol. A minute or two later, when it was discovered that the victim was still alive, defendant fired a second shot into Cheney's head. These murderous acts were committed as if by prior agreement and understanding and without provocation, excuse or justification. After they reached the old cemetery at the end of Brinkle Ferry Road, entered it and dug a shallow grave, defendant and his accomplices returned to the car for Cheney's body and, at that time, took his wallet containing $13.00 in cash, a watch, cigarette lighters and a small amount of change. They buried the body but kept Cheney's belongings. Items deemed worthless were later burned, but the money and the watch were kept and converted to their own use.

The foregoing evidence permits a legitimate inference that the murder was committed in perpetration of a robbery, and murder so committed is "deemed to be murder in the first degree." G.S. 14—17. Hence it was not error prejudicial to defendant for the court to give the State's contentions and to charge the jury that a murder committed in the perpetration of a robbery "will be deemed murder in the first degree."

Moreover, want of provocation, absence of excuse, lack of justification, and defendant's statement that he shot Cheney "to prove a point"—all permit, if not compel, a legitimate inference of premeditation and deliberation. State v. Perry, 276 N.C. 339, 172 S.E.2d 541 (1970).

Defendant's guilt is conclusively shown by competent evidence upon which no other rational conclusion could have been reached by the jury. He has failed to bring to our attention any error injuriously affecting his rights, and we have discovered none. For such a callous murder the jury might well have returned a verdict which would have required a death sentence. His assignment of error must fail for lack of merit.

No error.