State v. Tanner , 25 N.C. App. 251 ( 1975 )

212 S.E.2d 695 (1975) 25 N.C. App. 251

STATE of North Carolina
v.
Samuel Pete TANNER.

No. 7410SC1062.

Court of Appeals of North Carolina.

April 2, 1975.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. John M. Silverstein, Raleigh, for the State.

Vaughan S. Winborne, Raleigh, for defendant-appellant.

BROCK, Chief Judge.

Case No. 74CR16956

Defendant assigns as error the failure of the trial court to instruct that § 15-21 of the Raleigh Code, proscribing the firing of a gun within the city limits, is not violated if the gun is fired in defense of person or property. G.S. § 160A-189 grants cities authority to regulate, restrict, or prohibit by ordinance "the discharge of firearms at any time or place within the city except when used in defense of person or property or pursuant to lawful directions of law-enforcement officers, and may regulate the display of firearms on the streets, sidewalks, alleys, or other public property."

Although firing in defense of person or property would not constitute a violation of the ordinance, there is no evidence that defendant fired either in self-defense or in defense of his property. Defendant testified that "[t]hey were running up the street, Ethel and another, I don't know if it was her son or nephew, but they was running up the street, and I shot, went to the end of the porch, the balance (sic), and throwed the gun over and shot right down in the ground, and came on back in the house."

Without some evidence which would justify the jury's finding that defendant was acting in defense of person or property, the trial judge was not required to instruct the jury on the principle of self-defense. This argument is without merit.

Case No. 74CR16957

Defendant assigns as error the two-year sentence imposed for the violation of G.S. § 14-160. That statute provides in G.S. § 14-160(a) that, in cases of wilful or wanton injury to personal property, punishment is not to exceed either six months or a $500.00 fine, or both. G.S. § 14-160(b) provides that injury to property causing damage in an amount in excess of $200.00 shall be punishable either by fine, imprisonment for a term not exceeding two years, or both.

There is no evidence or jury finding in this case as to the amount of damage done to the car in which Ethel Partin, her son, and her nephew were riding. In the absence of any proof that the damage was greater than $200.00, the defendant should have been sentenced pursuant to G.S. § 14-160(a). We note that this would normally constitute only harmless error because the two-year sentence is to run concurrently with the four-to-six-year sentence imposed in Case No. 74CR16958 for shooting into an occupied vehicle. State v. Summrell, 282 N.C. 157, 192 S.E.2d 569 (1972); State v. Avery, 18 N.C.App. 321, 196 S.E.2d 555, cert. denied, 283 N.C. 666, 197 S.E.2d 875 (1973). However, because we find error in the trial court's charge in Case No. 74CR16958, the error in sentencing defendant without proof of damage in excess of $200.00 is prejudicial error. Accordingly the case will be remanded for imposition of a proper sentence.

Case No. 74CR16958

Defendant assigns as error the following portion of the trial judge's instructions to the jury:

"I will go over those elements for you again. Seat them in your minds because you must resolve and say whether the evidence has established that you are satisfied beyond a reasonable doubt as to these three things: One, that the defendant intentionally discharged a shotgun into the Pontiac automobile described in the bill of indictment and evidence in the case. Two, also that the Pontiac automobile was occupied at the time that the gun was discharged; and, third and finally, that the defendant acted willfully or wantonly, which means that he had knowledge that the automobile was occupied by one or more persons or that he had reasonable ground to believe that the automobile might be occupied by one or more persons. They are the three things that are essential to constitute guilt."

In State v. Williams, 21 N.C.App. 525, 204 S.E.2d 864 (1974), an almost identical instruction was given to the jury. The defendant argued that the "instruction equated wilful and wanton conduct with knowledge of occupancy of the building and attempted thereby to condense two separate elements of the crime into one." 21 N.C. App. at 527, 204 S.E.2d at 865. We found merit in his argument and held that the charge was erroneous, despite the fact that it was taken from "Pattern Jury Instructions for Criminal Cases in North Carolina." We are therefore similarly constrained to hold that the charge in this case, concerning a violation of G.S. § 14-34.1, was erroneous. As stated in Williams, a correct charge would provide that the accused would be guilty if the defendant intentionally, without legal justification or excuse, discharged a firearm into an occupied vehicle with knowledge that the vehicle was occupied by one or more persons or when he had reasonable grounds to believe that the vehicle might be occupied by one or more persons. 21 N.C.App. at 527, 204 S.E.2d 864. Defendant's assignment of error is sustained, and a new trial on this charge (Case No. 74CR16958) is ordered.

Defendant has filed a separate motion in arrest of judgment in Cases No. 74CR16956 (discharging a firearm in the city) and No. 74CR16957 (wilful damage to property by shooting out the automobile window), contending that these two offenses merge into the greater offense charged in Case No. 74CR16958 (discharging a firearm into an occupied vehicle).

It seems clear that the elements of the offense charged in Case No. 74CR16956 (discharging a firearm in the city) are embraced within the offense charged in Case No. 74CR16957 (wilful damage to property by shooting out the automobile window) when that offense is proved to have been committed within the city. The two offenses were shown to arise out of the same set of facts. "It is generally agreed that if a person is tried for a greater offense, he cannot be tried thereafter for a lesser offense necessarily involved in, and a part of, the greater, . . ." 1 Wharton, Criminal Law and Procedure § 148, quoted in State v. Peele, 281 N.C. 253, 188 S.E.2d 326 (1972). The fact that one constitutes a violation of the city code and the other constitutes a violation of a state statute does not justify successive convictions. See Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435, reh. denied, 398 U.S. 914, 90 S.Ct. 1684, 26 L.Ed.2d 79 (1970). Therefore, judgment in Case No. 74CR16956 (discharging a firearm in the city) must be arrested.

We do not agree with defendant's contention that the elements in Case No. 74CR16957 (wilful damage to property by shooting out the automobile window) are the same as the elements in Case No. 74CR16958 (discharging a firearm into an occupied vehicle). The element of damages which must be shown in a charge of wilful damage to property is not an element in a charge of discharging a firearm into an occupied vehicle. Therefore, the two charges are not the same in fact or in law. Defendant's motion in arrest of judgment in Case No. 74CR16957 (wilful damage to personal property) is denied.

The result is this:

In Case No. 74CR16956, judgment arrested.

In Case No. 74CR16957, remanded for proper sentence.

In Case No. 74CR16958, new trial.

VAUGHN and MARTIN, JJ., concur.