State v. Clark , 325 N.C. 677 ( 1989 )

Justice MITCHELL

concurring in result.

The majority holds that the trial court properly refused to instruct on the lesser offense of involuntary manslaughter, because there was no evidence of involuntary manslaughter. For reasons which I have fully discussed in my dissenting opinion in State v. Thomas, 325 N.C. 583, 386 S.E.2d 555 (1989), involuntary manslaughter is not a lesser included offense of first-degree murder, when, as here, first-degree murder is submitted to the jury based solely upon the felony murder theory; this is true without regard to what the evidence may tend to show. Because the trial court — for whatever reason — permitted this case to go to the jury for its determination of whether the defendant was guilty of first-degree murder only under the felony murder theory, no instruction on lesser homicide offenses would have been proper. I concur only in the result reached by the majority.

Justice WEBB joins in this concurring opinion.