
202 S.E.2d 169 (1974)
284 N.C. 485
STATE of North Carolina
v.
William Hobert MOORE.
No. 97.
Supreme Court of North Carolina.
January 25, 1974.
*172 Robert Morgan, Atty. Gen. by Eugene A. Smith, Asst. Atty. Gen., Raleigh, for the State.
Herbert B. Hulse and George F. Taylor, Goldsboro, for defendant-appellant.
HIGGINS, Justice.
During the course of the trial the defendant took many exceptions to the evidence offered by the State. Particularly, the defendant objected to the introduction of his confession. However, before permitting the State to introduce the confession, the court conducted a thorough voir dire hearing in the absence of the jury. The details of this examination are set out in the factual statement. The evidence for the State disclosed the proper cautions and warnings were given by both Sergeant Brock of the Naval Investigative Service and by Mr. Poole of the State Bureau of Investigation. The defendant signed a written admission that the warnings were given and that he waived the right to have counsel present during the interrogation. He signed a confession that he forced the deceased to lie down on his stomach in the front seat of a junked automobile and fired two pistol shots into his head and neck in the course of taking his money, watch, and other articles.
The evidence on the voir dire fully justified the court's finding that the interrogating officers observed all procedural safeguards in conducting the interrogation which preceded the confession. Miranda *173 v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; State v. Carroll, 282 N.C. 326, 193 S.E.2d 85; State v. Haddock, 281 N.C. 675, 190 S.E.2d 208; State v. Mems, 281 N.C. 658, 190 S.E.2d 164; State v. Williams, 276 N.C. 703, 174 S.E.2d 503; State v. Haynes, 276 N.C. 150, 171 S.E.2d 435; State v. Meadows, 272 N.C. 327, 158 S.E.2d 638; State v. Spence, 271 N.C. 23, 155 S.E.2d 802; State v. Gray, 268 N.C. 69, 150 S.E.2d 1. The defendant's objections to the admission of his confession before the jury were properly overruled. The evidence was ample to go to the jury and to sustain the verdict. State v. Vestal, 281 N.C. 517, 189 S.E.2d 152; State v. Bell, 270 N.C. 25, 153 S.E.2d 741; State v. Stephens, 244 N.C. 380, 93 S.E.2d 431. The defendant's motion to dismiss was properly denied.
The defendant stressfully contends the court committed error in charging the jury that it might convict the defendant of murder in the first degree either upon a finding beyond a reasonable doubt that the defendant killed Corporal Casey after premeditation and deliberation, or in the perpetration of armed robbery. The specific objection is that the indictment, having charged the killing was committed after premeditation and deliberation, it was error to permit the jury to convict the defendant of murder in the first degree upon a finding the defendant killed Casey in the perpetration of the robbery.
The legal question presented by the objection to the indictment and the charge was before this Court in the case of State v. Fogleman, 204 N.C. 401, 168 S.E. 536. The indictment against Fogleman is not quoted in full in this Court's opinion. However, the record of the case on appeal discloses that the indictment contained two counts. The first count charged that "[O]n the 30th day of April, A.D., 1932, [the named defendant] with force and arms, at and in the County [Rockingham] aforesaid, unlawfully, wilfully, feloniously, premeditatedly, deliberately and of his malice aforethought, did kill and murder one W. J. Carter . . . ."
The second count charged that the named defendant, "[O]n the 30th day of April, 1932, with force and arms, at and in the County aforesaid, unlawfully, wilfully, feloniously, of his malice aforethought, and in the perpetration in the attempt to perpetrate a felony, to-wit, robbery, did kill and murder one W. J. Carter . . . ." The evidence disclosed a killing in the attempt to commit a robbery.
Judge Stack charged the jury:
"Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation, or in the perpetration of a robbery or attempt to perpetrate a robbery. . . ."
In passing on the defendant's objection to the two count indictment against Fogleman in the light of Judge Stack's charge, this Court said:
"The indictment contains two counts, the first charging the essential facts of murder as required by C.S. § 4614 [Now G.S. § 15-144], the other charging murder committed in the perpetration of or in the attempt to perpetrate robbery. The prisoner excepted to an instruction referring to murder committed in the perpetration of robbery `or other felony.' The first count in the indictment is sufficient; it contains `every averment necessary to be made.' State v. Arnold, 107 N.C., 861, 11 S.E. 990, 991; . . . The instruction complained of was relevant upon the matters involved in the first count." (The first count charged premeditation and deliberation.)
The Court held that the first count charging premeditation and deliberation was sufficient to embrace a killing committed in an attempt to commit robbery.
In State v. Arnold, 107 N.C. 861, 11 S.E. 990, Clark, J. (later C.J.) referring to the *174 allegations necessary to a valid indictment for murder said: "[I]t is proper to say that under the decisions and statutes the following is full and sufficient in the body of an indictment for murder: `The jurors for the state on their oaths present that A.B. in the county of E., did feloniously, and of malice aforethought, kill and murder C.D." (Emphasis added.) Research discloses that State v. Arnold, supra, has been cited and approved many times in the subsequent decisions of this Court.
In State v. Craft, 168 N.C. 208, 83 S.E. 772, the Court said: "A variance will not result where the allegations and the proof, although variant, are of the same legal significance."
In State v. Mays, 225 N.C. 486, 35 S.E. 2d 494, this Court said:
"The bill of indictment charges the capital felony of murder in the language prescribed by statute. G.S. § 15-144. [Formerly C.S. 4614.] It contains every averment necessary to be made. State v. Arnold, 107 N.C. 861, 11 S.E. 990;. . . Proof that the murder was committed in the perpetration of a felony constitutes no variance between allegata and probata. (Citing State v. Fogleman.) If the defendant desired more definite information he had the right to request a bill of particulars, in the absence of which he has no cause to complain."
In State v. Grayson, 239 N.C. 453, 80 S. E.2d 387, the indictment charged murder in the first degree as prescribed by G.S. § 15-144, without alleging either that the killing occurred after premeditation and deliberation, or in the perpetration of a designated felony. The evidence discloses the killing occurred in the perpetration or in the attempt to perpetrate the crime of rape. The defendant, claiming error, excepted to the trial court's instruction that the jury might find the defendant guilty of murder in the first degree if committed in the perpetration or attempt to perpetrate the crime of rape. The ground of the objection was the lack of a supporting allegation in the indictment. This Court, citing Arnold, Fogleman, and Mays, held: Where the bill of indictment contains every necessary averment, there is no variance between the allegation and the proof. The Court, however, awarded a new trial for error committed in the court's charge on the defendant's plea of insanity.
Any allegations in a bill of indictment over and above that which is held sufficient may be treated as surplusage. State v. Stallings, 267 N.C. 405, 148 S.E.2d 252.
In State v. Haynes, supra, this Court held:
". . . The indictment in this case neither alleged the killing was done after premeditation and deliberation, nor in the perpetration or attempt to perpetrate a robbery. Nevertheless, the bill is sufficient to sustain a verdict of murder in the first degree if the jury should find from the evidence, beyond a reasonable doubt, that the killing was done with malice and after premeditation and deliberation; or in the perpetration or attempt to perpetrate a robbery." (Citing Arnold, Fogleman, and other cases.)
In State v. Frazier, 280 N.C. 181, 185 S. E.2d 652, Justice Lake, for the Court, adopting the language of Judge Barnhill in State v. Mays, supra, says:
"`The bill of indictment charges the capital felony of murder in the language prescribed by statute. G.S. § 15-144. It contains every averment necessary to be made. (Citing State v. Arnold). . . Proof that the murder was committed in the perpetration of a felony constitutes no variance between allegata and probata.'"
The common law offense of murder connotes a malicious killing. When the State statute divided the offense into first and second degrees, the difference depended upon the presence or absence of premeditation and deliberation. At the *175 same time the statute provided if the killing occurred in the perpetration or attempt to perpetrate a felony, the killing became murder in the first degree. A killing in the commission or in the attempt to commit a designated felony is known as "a felony murder."
"Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. The term `malice aforethought' cannot be substituted for the term `premeditation and deliberation' since it does not connote premeditation and deliberation but the pre-existence of malice.
"A murder which is committed in the perpetration or attempted perpetration of robbery, rape, arson, [etc.], is murder in the first degree, irrespective of premeditation or deliberation or malice." 4 N.C. Index 2d, Homicide, Sec. 4, 1947 Ed., citing many cases including State v. Maynard, 247 N.C. 462, 101 S.E.2d 340; State v. Streeton, 231 N.C. 301, 56 S.E. 2d 649; State v. King, 226 N.C. 241, 37 S.E.2d 684.
The decision of this Court in State v. Davis, 253 N.C. 86, 116 S.E.2d 365, in the light of the foregoing appears to be, but is not, actually in conflict with the foregoing authorities. In Davis, this Court held: "By specifically alleging the offense was committed in the perpetration of rape, the State confines itself to that allegation in order to show murder in the first degree." (Emphasis added.) The indictment in Davis is here quoted in full:
"The jurors for the State upon their oath present that: Elmer Davis, Jr., late of the County of Mecklenburg, on the 20th day of September, 1959, with force and arms, at and in the County aforesaid did unlawfully, willfully, feloniously while perpetrating a felony, to-wit; rape, kill and murder Foy Bell Cooper against the form of the statute and in such case made and provided and against the peace and dignity of the State."
It will be noted the indictment failed to charge malice, a necessary allegation in a murder indictment. State v. Arnold, supra; G.S. § 15-144.
Judge Campbell was correct in charging the jury in the Davis case that a verdict of guilty of murder in the first degree could be rendered only upon a finding that Davis killed Mrs. Cooper in perpetrating or attempting to perpetrate the crime of rape. Our holding in Davis that the State was confined to its allegation in the indictment that the killing occurred in the perpetration of rape was correct. This Court could have said, but did not say, the indictment failing to charge malice, required the State to make out its case of murder in the first degree upon a showing the killing was done in the perpetration or attempt to perpetrate the crime of rape. The indictment, omitting malice, was insufficient to elevate the killing above the crime of manslaughter, except for the "felony murder" rule which Judge Campbell submitted to the jury. There was no evidence of manslaughter in the Davis case. Hence, Judge Campbell correctly declined to submit manslaughter.
The indictment now before us against Moore, as the first count in Fogleman, charged malice, premeditation and deliberation. The evidence against Fogleman and Moore disclosed a killing in the perpetration of robbery. Our decisions in Fogleman and since, have held that an indictment drawn under G.S. § 15-144 will support a verdict of murder in the first degree without any further allegation of premeditation and deliberation or in the perpetration or attempt to perpetrate a felony. If the bill does allege a malicious killing after premeditation and deliberation, nevertheless the conviction will be sustained if the evidence shows and the jury finds the killing was done in the perpetration or in the attempt to perpetrate a felony. It follows, therefore, that the indictment and the *176 charge against the defendant, William Hobert Moore, were in accordance with our prior decisions and free from error.
However, the record discloses error of law in the conviction and sentence on the charge of armed robbery. The court charged that a verdict of murder in the first degree could be rendered upon a finding beyond a reasonable doubt that the killing was done in the perpetration or in the attempt to perpetrate a robbery. Hence the robbery, in this case, was merged in and became a part of the first degree murder charge.
For the reasons fully set forth in State v. Carroll, supra, and State v. Peele, 281 N.C. 253, 188 S.E.2d 326, the verdict finding the defendant guilty of armed robbery is now set aside, and the judgment of imprisonment is vacated on the robbery charge.
On the charge of murder in the first degreeno error.
On the charge of armed robberyverdict set aside, judgment vacated.
