State v. Tart, 372 N.C. 73 (Mar. 29, 2019)

On discretionary review of a unanimous, unpublished decision of the Court of Appeals, ___ N.C. App. ___, 808 S.E.2d 178 (2017), the court reversed the decision below holding that the short form indictment for attempted first-degree murder was not fatally defective. G.S. 15-144 provides short form language for charging murder. It provides: “[I]t is sufficient in describing murder to allege that the accused person feloniously, willfully, and of his malice aforethought, did kill and murder (naming the person killed), and concluding as is now required by law; and it is sufficient in describing manslaughter to allege that the accused feloniously and willfully did kill and slay (naming the person killed), and concluding as aforesaid . . . .” The indictment here charged the defendant with attempted first-degree murder and alleged, in relevant part, that the defendant “did attempt to kill and slay” the victim with malice aforethought. Although agreeing that the terms “murder” and “slay” are not interchangeable, the court concluded that use of the word slay in place of the word murder in the indictment at issue “is a distinction without a difference” where the indictment also charged that the killing was done with malice aforethought. The court noted that “[w]hile it may have been a better practice” for the State to use the exact language provided in the statute, “the prosecution’s failure to do so did not render the indictment fatally defective.” It held: “the use of the term ‘slay’ instead of ‘murder’ in an indictment that also includes an allegation of ‘malice aforethought’ complies with the relevant constitutional and statutory requirements for valid murder offense indictments and serves its functional purposes with regard to both the defendant and the court.”