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 degree arising solely from the fact that a death results from the unlawful distribution of controlled substances without a showing of intent and malice aforethought.
The fact that G.S. 14-17 doesn’t mention malice in connection with murder by drugs isn’t significant, because the statute doesn’t mention malice in connection with any kind of murder. Malice is part of the common law definition of “murder” that underlays our statute.
The point was further reinforced by the court of appeals in State v. Liner, 98 N.C. App. 600 (1990). The defendant in that case stole some controlled substances from a pharmacist and gave them to two friends for recreational use. Both friends became very ill, yet several days later, the defendant allowed a third friend to consume the same drugs. The third friend died as a result, and the defendant was charged with, and convicted of, second degree murder. The court of appeals affirmed the defendant’s conviction, finding, inter alia, sufficient evidence of malice in the fact that the defendant distributed the drugs to the third friend “with the knowledge that the drugs were inherently dangerous due to the fact that [the first two friends] had both become violently ill after using the drugs in defendant’s presence.” Of course, if malice were not a required element of second-degree murder by drugs, the court would not have needed to resolve this issue at all.
As a final note, it bears mentioning that in some circumstances, murder by drugs may be first-degree murder. For example, a person who deliberately kills another person by administering an overdose of a controlled substance is guilty of first-degree murder, both on the premeditation and deliberation theory and on the murder by poison theory.