Our murder statute, G.S. 14-17, defines first-degree murder, then proceeds as follows: "All other kinds of murder, including that which shall be proximately caused by the unlawful distribution of opium . . . cocaine . . . or methamphetamine, when the ingestion of such substance causes the death of the user, shall be deemed murder in the second degree." I was asked recently if the state must show malice in order to prove second-degree murder by drugs. The person who asked me thought that the answer was no, because the statute doesn't say anything about malice. He thinks that any time A sells or gives drugs to B, and B dies as a result of using the drugs, A is guilty of second-degree murder. On the other hand, the pattern jury instruction for second-degree murder by drugs, N.C.P.I. -- Crim. 206.31B, does require a finding of malice before the jury may return a verdict of guilty. The pattern instruction is correct. In State v. Davis, 305 N.C. 400 (1982), the North Carolina Supreme Court held that the murder by drugs provision was added to G.S. 14-17 only to make clear that murder by drugs was not felony murder: [T]he . . . amendment . . . relative to murders proximately caused by the unlawful distribution of controlled substances was intended to do no more [than clarify that such murders are not felony murders]. More specifically, we do not think the legislature intended to create a crime of murder in the second [...]
Faculty Coordinators
