As to Willful, below is a short memo I made years ago, either for a case
or for my own edification. NOTE: When you do your own research, search
for both "willful" and "wilful." Both spellings appear in published cases.
Willful is defined in several appellate opinions in North Carolina,
for example, in State v. Williams, 284 NC 67 (1973):
Ordinarily, "'[w]ilful' is used in criminal statutes means the wrongful
doing of an act without justification or excuse, or the commission of an
act purposely and deliberately in violation of law." State v. Arnold,
264 N.C. 348, 141 S.E.2d 473 (1965). "Wantonness . . . connotes
intentional wrongdoing. . . . Conduct is wanton when in conscious and
intentional disregard of and indifference to the rights and safety of
others." Hinson v. Dawson, 244 N.C. 23, 28, 92 S.E.2d 393, 396-97
(1956). The attempt to draw a sharp line between a "wilful" act and a
"wanton" act in the context of G.S. 14-34.1 would be futile. The
elements of each are substantially the same.
That is, where the rights and safety of others are relevant, our law
imposes a requirement of conscious and intentional disregard of and
indifference to the rights and safety of others.
In Williams, the Supreme Court construed G.S. 14.34.1, Discharging
certain barreled weapons or a firearm into occupied property, which
reads as follows:
Any person who willfully or wantonly discharges or attempts to discharge:
(1) Any barreled weapon capable of discharging shot, bullets, pellets,
or other missiles at a muzzle velocity of at least 600 feet per second; or
(2) A firearm
into any building, structure, vehicle, aircraft, watercraft, or other
conveyance, device, equipment, erection, or enclosure while it is
occupied is guilty of a Class E felony.
The Court found Defendant guilty, but not before noting the requirement
that Defendant know or have reason to believe his act might affect the
rights or safety of others, construing willfully or wantonly to
require this:
We hold that a person is guilty of the felony created by G.S. 14-34.1 if
he intentionally, without legal justification or excuse, discharges a
firearm into an occupied building with knowledge that the building is
then occupied by one or more persons or when he has reasonable grounds
to believe that the building might be occupied by one or more persons.
284 NC at 73.
In State v. Tanner, the Court of Appeals explained and clarified
Williams, making clear that willfulness requires more than intent:
In State v. Williams, 21 N.C. App. 525, 204 S.E.2d 864 (1974)... The
defendant argued that the "instruction equated wilful and wanton conduct
with knowledge of occupancy of the building and attempted thereby to
condense two separate elements of the crime into one."21 N.C. App. at
527. We found merit in his argument and held that the charge was
erroneous, despite the fact that it was taken from "Pattern Jury
Instructions for Criminal Cases in North Carolina." ..... As stated in
Williams, a correct charge would provide that the accused would be
guilty if the defendant intentionally, without legal justification or
excuse, discharged a firearm into an occupied vehicle with knowledge
that the vehicle was occupied by one or more persons or when he had
reasonable grounds to believe that the vehicle might be occupied by one
or more persons. 21 N.C. App. at 527. Defendant's assignment of error is
sustained....
In State v. Brackett, 306 NC 138 (1982), the burning of a house,
although for no legal purpose and plainly intentional, was held not
willful precisely because the State's evidence did not meet the above
requirement. The Court based its holding on Williams. Defendant had
initially been convicted under G.S. 14-65:
If any person, being the occupant of any building used as a dwelling
house, whether such person be the owner thereof or not, or, being the
owner of any building designed or intended as a dwelling house, shall
wantonly and willfully or for a fraudulent purpose set fire to or burn
or cause to be burned, or aid, counsel or procure the burning of such
building, he shall be punished as a Class H felon.
Reversing the conviction, the Court cited Williams and stated:
[F]for a burning of a dwelling to be criminal under G.S. 14-65 as a
willful and wanton burning, it must be shown to have been done
intentionally, without legal excuse or justification, and with the
knowledge that the act will endanger the rights or safety of others or
with reasonable grounds to believe that the rights or safety of others
may be endangered.
306 NC at 142. The State failed to carry its burden because the house
was on a large lot, other homes were not endangered, Defendant was home
alone and she reported the fire. The public interest in not having the
house destroyed could not make the burning willful, despite the lack
of any apparent legal motive and the suggestion of insurance fraud. 306
NC at 143.
Aside from the scienter requirement, the cases emphasize the fact that
willfulness requires more than mere intention to commit an act. For
example, Mathis v. Division of Motor Vehicles, 71 NC App 413 (1984)
construes willful refusal under G.S. 20-16.2 as the declination of a
request or command, or the omission to comply with some requirement of
law, as the result of a positive intention to disobey. This requires
more than the intention to commit an act, and it requires more than
simple negligence. Although the rights of others are not at issue in a
willful refusal scenario, the use of the phrase positive intention to
disobey is instructive.
As noted above, in both Williams and Brackett, the court also noted
that willful and wanton are essentially identical in meaning.
Joseph V. Dipierro, Attorney