State v. Atkinson

IN THE SUPREME COURT State Atkinsow ” indictment. G.S. charged guilty’ the criminal offense 2d 558. Stinson, 283, 139 S.E. 15-173; State v. 263 N.C. shows defendant nothing evidence the State’s

It is noted permission of State temporary parole by released “on authority of authority of law.” As to Paroles other Board of temporary paroles, regular and grant both Board of Paroles authority of Correc- of the Commissioner As to the see G.S. 148-52. of confine- place limits of prisoner to leave the permit tion period agent prescribed for a by a custodial “unaccompanied ment 148-4. .,” see G.S. of time . . Appeals decision of the Court indicated, the For reasons entry of an order re- remanded for the reversed, the cause is County for Superior Court of Gaston manding action to the dismissing action.

judgment and remanded.

Reversed DEE CAROLINA v. D. ATKINSON STATE OF NORTH 22No. May 1969) (Filed 14 — , appeal on extension Law service case 1. Criminal § 154 — time Only judge serving extend the time for who tried case can appeal, and, having granted extension, on he of the case one statement expiration may grant the term at which the another after judgment 1-282. was entered.. G.S. appeal within au- Law 154— failure serve case on Criminal § — appellate time review thorized appeal appellant’s ease on is not served statement Where period statute or within the authorized within the time fixed Supreme normally judge, limited to a the trial Court extension appears proper, on and if no the face of the record error consideration thereof, will be affirmed. the judgment — duty appeal appellant case on 154— Law 3. Criminal § duty appellant properly to see that the record is is the made It appellate up to the court. and transmitted serve 154— invalid extensions time case on Law 4. Criminal appeal Supreme gave appeal notice of Court on Where SPRING TERM 1969 day judgment pronounced superior presiding the court the judge serving appeal days, then extended the for on time the case to 60 subsequent by judge expiration two orders entered trial the after the of judgment pronounced subsequent the term at which the and a order by judge undertaking entered another further to extend the for time appeal service of of the statement the ease on were nullities. jurisdiction 5. appeal Criminal law 153— of § trial court after taken appeal taken, After an court which it is taken has no au- thority appellate procedure except specifically with reference to the that upon conferred it statute. — 6. appeal Criminal Law 154—§ extensions of time to case on serve certiorari appeal Extensions of to time of serve statement on case addition may only by petition to that allowed directed 1-282 G.S. be obtained for certiorari appeal to to the court has been taken. 7. appeal apt Criminal Law 156— failure to serve §§ case on — appeal petition time treated as for certiorari appeal purported judgment imposing In this from a the death sentence degree murder, ap- for the crime of first where no statement of on case peal order, Supreme was served within the time allowed valid Court upon appeal petition certiorari, its motion treats the own as a for allows assignments the same and considers all of error their merits as if appeal properly had the case on been served within the time allowed therefor. 29; 135; Jury 8. Constitutional Law Criminal Law § ex- § 7—§ capital opposed punishment clusion of veniremen Witherspoon Illinois, Prior decision 391 U.S. it was challenges the law of this error under allow for cause jurors prospective they scruples the State to against might who staled had “conscientious penalty” infliction of death penalty a case where such pursuant guilty. a be inflicted verdict 29; 135; Jury ap- Law Law § Constitutional Criminal 7— § § Witherspoon plication v. Illinois to this State interpreted by States, Supreme Constitution United Witherspoon decision, controlling in the Court the United States in- with law of sofar as it conflicts this State. 29; 135; Jury Law Criminal Law § 10. Constitutional § 7— death § — opposed penalty capital punishment of veniremen exclusion Witherspoon Illinois, the decision Under U.S. a sentence jury imposed of death cannot be carried out that recommended by excluding simply they was chosen veniremen for cause it because objections general penalty expressed voiced or death conscientious scruples against religious its infliction. — jury 29— instructions § 11. Homicide discretion to recommend imprisonment life degree prosecution murder, for a first trial court must instruct IN THE COURT SUPREME v. Atkinson

Stake discretion, jury might, a render verdict that in its unbridled tlie imprisonment punishment guilty be a recommendation binding upon life, matter of sentence. the court then be which would 6.S. 14-17. — 31; unani- death Criminal Law 135— IS. Homicide § § mity verdict juror degree prosecution murder, to consent if one refuses In a for first first without recommenda- of murder in the to tion verdict life, imprisonment punishment sentence death be defendant, imposed the verdict of must on the since cannot be unanimous. 135; Jury ex- 7— Law 13. Constitutional Law Criminal § § requiring return verdict who never clusion of venireman would degree murder, prosecution capital first of the the crime for 'Witherspoon interpreted States, of Illi the United as Constitution challenges nois, by allowance of the State’s is violated the 391 U.S. not jurors prospective on voir dire examina who1made clear of for cause tion made evidence, already any hearing that, the each of them had of before pursuant a up not verdict to mind that would return his he might lawfully might executed, be whatever the evidence be. defendant the 29; Jury right of unbiased 5— State to Law § § 14. Constitutional jury jury State, defendant, entitled to a as as the is which will well presented impartial upon every properly give issue it a fair and verdict question whether, upon evidence, evidence, including by of the a the the any by beyond reasonable doubt to them of believed imprisoned or should be for should be executed life. murder first 29; Jury Law 7— statement record relat- 15. Constitutional § § jurors capital prospective punish- ing as views to of to on examination ment appeal judgment imposing sentence, In this the a state- a record, following of voir the recital dire examination of ment capital jurors relating punishment prospective to their views on three sustaining challenges rulings them, to to of the court State’s jurors prospective called to the stand were asked similar that all 50 effect concerning punishment any capital questions is held not to disclose viola- rights, showing only of constitutional statement defendant’s tion 36 jurors jurors chosen, prospective 14 excused since were but were challenged failing many to show how the State record cause, challenge for other or that successful than the three for cause record, juror prospective on was based the answer forth in the set capital punishment. reference to with respect capital Jury pun- 7— examination to on views 16. §§ ishment question juror’s relating prospective answer a his Even if a to' views support challenge capital punishment cause, not sufficient to a is on TERM SPRING v. Atkinson may properly question permit the solicitor ask in order to the intelli- gent peremptory challenges use of the allowed law to the State. — Jury challenge juror 17. 7— for cause desire § affirm juror prospective of a desire to affirm rather than an oath take is not, itself, challenge 9-14, cause in this State. 6.S. G.S. 11-11. Jury challenge 18. 7— erroneous allowance § for cause Nothing improper appearing, else the erroneous allowance of an chal- lenge party trial, long for cause does not entitle adverse new so only competent qualified actually those who are to serve are em- paneled upon jury, especially party where the adverse does not exhaust peremptory challenges. 29; Jury right 19. jury Constitutional Law 5— § chosen with- § out unconstitutional discrimination jury Defendant not entitled to his selection or choice but pursuant to a selected to law and without unconstitutional discrim- against group community ination a class or substantial from which jury panel is drawn. 29; Jury Law Constitutional 5—§ discretion ex- § court juror challenged party cuse either duty competent, It is court to that a see fair and impartial empaneled and, end, to that court discretion its may prospective juror challenge by party excuse without a either voluntarily prospective juror as a information result disclosed questioning. without Jury Law irregularity 21. Constitutional 5— waiver § forming jury irregularity forming jury party An a is waived silence of a at the time of the court’s action. 29; Jury jury 22. Law Constitutional 5— drawn § § sec- cross — community jurors tion of of excusal who refused oath take degree prosecution murder, deprived In this for first defendant was not jury community of a drawn from a section of cross the when the trial prospective discretion and on own court jurors its its motion excused three customary jurors, who refused to take the oath for defendant hav- ing persons scruples against failed to show that who have conscientious taking jurors portion prospective an oath substantial constitute of the county jurors of the of defendant’s trial or that without such scruples impose less than would be inclined others to convict or to the having object penalty, and failed to defendant the court’s action verdict was until after the rendered. 29; Jury group Law 5— 23. Constitutional discrimination § § — proof jury burden of selection group complaining A of discrimination the of selection the proving jury him burden of which tried has the that the selected did represent community. of not a fair cross section the entire IN THE SUPREME COURT clothing Criminal 42— admission of bloodstained 24. Law § child, prosecution a the court In this for murder of the first clothing properly and a bloodstained of admitted articles bloodstained being child, body the of deceased such evidence washcloth found on theory body, competent case, identify of the to corroborate the State’s completely cogency and to enable the to realize more testimony of the of the witnesses. force photographs admissibility gruesome 43— 25. Criminal Law § horrible, revolting depicts gruesome photograph fact a The a that cruelty, indicating vicious, or lust does act of malice calculated scene incompetent properly photograph au- when in evidence not render portrayal related a correct conditions observed thenticated as testimony. photograph illustrate who uses the witness admissibility photographs 26. Law 43— Criminal § competent Ordinarily, photographs to be used witness ex- are competent anything plain him it is for to describe words. or illustrate photographs 43— color 27. Law Criminal § admissibility. photographs does not fact are color affect their that 43; body photographs Homicide 20—§ 28. Criminal Law § photographs showing prosecution homicide, the condition of In a found, body surrounding found and con- location where when body incompetent by not at was found are rendered ditions the time spectacle gruesome horrifying portrayal events which the their they accurately portray. testifies witness photographs identification Law 43— 29. Criminal § necessary photograph be taken if the that witness It represents correctly it what observed. testifies that he witness photograph body de- 20— § Criminal Law Homicide § place where moved from found ceased after body photograph of the of the deceased is not rendered inadmissible A body by place had moved from the fact taken after the been originally morgue place or other examina- where found to tion. body photograph showing at Law 43— condition 31. Criminal after time homicide occurred portrays photograph condition fact was taken and not, itself, body after homicide occurred does render at some time incompetent. photograph — prosecution 20— homicide 32. Law Homicide § Criminal § body admissibility photographs of of and location degree prosecution child, for the first murder of a the did In this court photographs of not err the admission of used witnesses the State appearance testimony concerning location the of to illustrate their body place was found and the where the child’s buried condition of the SPRING TERM 1969 29S NT.C.] body, photographs the the where court the instructed purpose illustrating testimony allowed evidence sole of of the witnesses and not as substantive evidence. — prosecution dig 33. Law 42— Criminal homicide § shovel used to grave of victim prosecution degree child, In this for the first of a murder the court did err admission of a shovel taken from defendant’s home with permission having dig his after defendant admitted used shovel to grave body where the child’s was found. 34. Criminal Law 34— evidence other of crimes § having bearing upon of While evidence other crimes no the crime for may prior taking is on trial the defendant not be introduced to his witness, proof guilt the stand as a all facts to relevant of defendant’s charged may by evidence, competent, of crime be shown otherwise though necessarily even that evidence indicates the commission him of criminal offense. another 35. 34— evidence of other Criminal Law crimes § competent charged Evidence of other offenses to show the crime purpose concealing crime, of committed another to show a motive part charged, quo on of accused commit crime to show the animo, intent, design, guilty knowledge, scienter, out make the res respect gestee, of or to a chain circumstances in exhibit of the matter on trial, charged when crimes are such SO'connected with the offense as to questions. light upon one or more these throw — prosecution Law 34— homicide rape 36. Criminal § evidence prosecution degree child, In this for the first murder a female properly pathologist testify court allowed for the State to as to the body he observed the child’s conditions and his conclusion therefrom raped, properly photographs she had been use authenticated testimony, being competent such evidence to illustrate to establish the motive, premeditation, part deliberation and malice on the of defendant charged. with which for and the murder he insanity Law 5— test of as 37. Criminal defense § crime insanity alleged The test of as defense to criminal offense is the distinguish capacity wrong the defendant between at the respect investigation. of and in under time matter — insanity competency 5— Law defense Criminal of evidence tending Evidence to show the mental condition the accused both be- competent provided act is fore after commission it bears relation to defendant’s condition mind at such leged the time of the al- worthy respect of consideration in crime thereto. expert testimony 39. Criminal Law 53— as to §§ defendant’s men- condition on date of tal crime prosecution murder, properly In this for first the court allowed psychiatrist who examined and for the State observed defendant over COURT IN THE SUPREME

State Atkinson v. period pursuant order some three of time to a court entered a substantial alleged testify the offense to that he was of the half months after a right wrong” opinion on the of date the al- that defendant “knew leged offense. — insanity proof of burden of Law 5— defense 40. Criminal § establishing insanity of defense of to burden the Defendant has the jury. the satisfaction by during trial court solicitor’s Law 99— comment Criminal 41. § argument argument objected to statement the solicitor’s to defendant Where jury mother said that didn’t she remember whether the that “defendant’s not,” charged killing her first husband or a comment she was although it,” distinctly said not that “I remember that she court the summary testimony supported of of defendant’s mother the narrative expression opinion record, of not an as to the did constitute the prejudicial credibility and was not error since defendant’s of the witness of of the murder her second had admitted her conviction husband. mother — appeal on statement Law 159— case evidence Criminal 42. § required appellant in his the forth statement the It set is entirety. appeal in its the evidence case on judgment appeal exception to Law 161— Criminal § 43. judgment brings exception up appeal an the Defendant’s itself proper, appearing on face of the in- all matters record for review support sufficiency imposition cluding verdict sentence. 135; 29; Law Homicide 31— Criminal § § Law § 44. Constitutional — 14-17, degree murder G.S. former G.S. 15-162.1 for first sentence imposed degree 14-17, providing to be for first for sentence G.S. jury, 15-162.1, upon and G.S. verdict returned murder prior Legislature provided repeal by for the 1969 its sentence to accepted guilty, separate plea upon imposed distinct validity adversely therefore, statutes; 14-17 cannot be G.S. affected any, G.S. 15-162.1. invalidity, [former] if 29; 135; Law Criminal Homicide 31— § Law § § 45. Constitutional — — degree jury capital punishment first murder verdict XT. S. Jackson Jaclcson, not at United States 390 U.S. did decision of prior repeal of G.S. 15-162.1 and does not trial time of defendant’s impose pur- of this of death State sentence now forbid courts in accordance with G.S. 14-17. a verdict of suant to 135; Criminal Law Homicide 31— Constitutional Law § § — — guilty plea former trial life sentence G.S. 15-162.1 degree 15-162.1, prosecution murder, [former] first G.S. In this permitted represented by trial the time which at SPRING TERM 1969 State plea charge counsel to tender a written to a of first which, accepted by approved by court, murder had guilty of a effect verdict of with a recommendation of im- life prisonment, discourage exercising did not defendant from his constitutional by jury plea to trial where defendant entered a of not jury. tried 29; 135; 47. Constitutional Law Criminal Law § Homicide 31- § § constitutionality penalty of death imposition penalty degree The of the death for first murder is not un- per constitutional se. 135; 48. Criminal Law penalty Homicide 31— § death for § first de- gree murder imposition penalty degree The death expressly for first murder is XI, authorized Article § Constitution of North Carolina. 135; 49. Criminal Law penalty Homicide 31— § § for first degree murder The Fourteenth Amendment United States Constitution does not prevent sentencing the State of North Carolina from a defendant to death pursuant to G.S. 14-17. 50. Criminal Law penalty § Homicide 31— death § for first — degree by Legislature murder determination Legislature, courts, It is pro- to determine whether the imposing vision the death degree the commission of first policy murder is or is not a wise for this State. appellate 51. Criminal capital Law 146— review of case capital Supreme cases Court will review the record and take cognizance prejudicial ex error mero motu.

Higgins, J., concurring.

Bobbitt, J., dissenting as to death sentence.

Shaep, J., joins dissenting opinion. Appeal Parker, defendant from J., at July-August Wayne. Criminal Session appeals

The defendant judgment from a sentencing him to death, jury having found him guilty murder first having no made recommendation punishment that his imprison- ment for life. The defendant general entered a plea of guilty” “not pleas guilty” and further of “not grounds on the of insanity and of “temporary or transitory insanity at the time of alleged com- mitment of indictment, the act.” The verdict judgment were all proper in form. COURT THE SUPREME IN [275. exhausted, additional jurors having been regular panel of defect in discloses no The record jurors were summoned.

prospective doing. Neither the State so procedure followed objection to the challenges. There peremptory available exhausted nor the defendant member in the record suggestion no competent. verdict was not rendered the by the summary the evidence introduced following State: living age years, four Smith- (Kathy) Carr, Catherine grandmother on 16 De- County, with her maternal

field, Johnston stepfather. He lived near Smith- was her defendant cember 1967. The in Dur- mother, child’s who lived from the separate apart field, at the they together all lived de- had separation ham. Prior demonstrating normal Smithfield, the fendant’s home near Kathy. affection for December the defendant p.m. on 16 approximately 5

At grandmother of the and told wagon the home drove his station her mother Kathy to see Durham. wanted to take her that he neighbor, picked up of a her home Kathy at the They located grandmother home, as- where grandmother’s returned to child. The State clothing for the introduced change of a sembled grandmother clothing after the iden- articles in evidence various Kathy when she left carried worn or tified each as either approxi- defendant at company of the grandmother’s home in the mately p.m. hospital aid, nurse’s who experienced had grandmother, nothing unusual about observed patients, mental

worked with get he so came to Kathy. him was with while she defendant when “normal.” to be appeared to her He then up entered a drove to and restau- the defendant p.m., At 9:45 disarranged. He went clothing was to the rest His rant Smithfield. emerged five minutes. When he about remained there room and appearance, purchased he adjustment of his with some therefrom opened to his it, wagon, went out station cola, drank some a coca restaurant and announced that some- to the it, returned the door to conflicting made statements as to child. He kidnapped one had At vehicle. that time the defendant in the child had been where the who was in police officer the res- opinion of in the “acted normal” in the vehicle. were observed of blood Spots taurant. defendant of his warned the constitutional officers

Investigating an officer testified that the full examination, (On dire rights. voir TERM 1969 SPRING State warning given defendant, the defendant stated

Miranda lawyer being present,” he would talk to the officers “without given defendant no threats or inducements made there were any found as a fact that order to elicit a statement. The court was “made freely, made such officers the defendant statement voluntarily complete warning understandingly after full and rights guaranteed all to said defendant under the and Federal threat, promise reward, coercion, without duress or Constitution, influence.”) Thereafter, December, on 17 the de- other undue gave investigating map, showing officers a fendant drew and This place Kathy’s body map where buried. location the officers did not know was introduced evidence. At time body where the child or her was. diagram

Using map prepared by defendant, so together defendant, point with the then drove to a on a officers, miles Wayne County, home, rural road defendant’s they pine point yards from which walked 75 into a woods. There pointed spot to a told the officers the child’s body prepared by so diagram, defendant, was buried there. The to this portrayal point. was an accurate of the route from Smithfield place An pine needles on the surface at the so indi- abundance compatible appearance cated the defendant made the area passerby recog- would have surrounding area so that Kathy’s body was feet grave. this as a found two below the nized point. surface at this grave

Photographs area, opened body and the child’s clothing grave in the introduced in evidence and articles of investigating by testimony, and used officer illustrate his each being duly accuracy. photo- identified as to its Other photograph and graphs body, properly authenticated, of the child’s identified by in evidence and used the State’s witnesses to were introduced wounds body, thereon, illustrate the condition of the the condition clothing profuse blood stains thereon. The articles of of the by grandmother, the child’s were iden- clothing, previously identified body investigating being upon as the by tified officers other- was in- grave body wise in the when the discovered. The court photographs were in jury structed the at the time offered evi- not evidence but were allowed they dence that substantive testimony witnesses, found for use to illustrate testimony. such they did so illustrate a shovel also offered evidence found at the defend- the officers with by

ant’s and taken therefrom the defendant’s home IN THE SUPREME COURT State permission immediately December, Kathy’s body on 18 after removed place. upon from the burial The shovel then had it soil of type grave. same as the soil in the shallow (having given again

On 18 December been full Miranda warning concerning his constitutional rights), the defendant made concerning detailed statement to the officers the events of the af- evening making ternoon and of 16 December. At the time of statement, appear highly he did not in a “to be nervous condition.” The officer to whom the statement was made testified the de- grandmother’s fendant then told the officer that he left the residence Kathy in his car and took her to his own residence, they where were alone. He then undressed the child and had intercourse with despite (such her struggles. Using her screams and a washcloth bloody having upon cloth been body upon found the child’s her re- grave), moval from the he cleaned the blood person from her got dressed her. shovel, placed He then his it in the wagon, station Kathy put led out and her in wagon, the station drove with her to (18 place body where her was found buried miles from his resi- proceeded dence), shovel, woods, dug took into the grave, wagon went back to Kathy the station and “led Carr the hand” grave, where he “took his hands and choked her to death.” grave placed He then her her, spreading pine covered grave needles over it would recognize,” so be “hard to drove back to Smithfield, restaurant, went into the went back out to his car, people returned to the restaurant and told the Kathy had been “gone.” left the car and was December, Kathy’s body

On 19 an expert examined pathology, who testified as such. This witness testified that opinion the child “had suffocated to death as being the result of strangled object being placed the hand or some other over the mouth and nose.” He further testified that in his opinion, based body, vaginal his examination of her her penetrated tract had been organ severely male and had been lacerated and torn in the process, using photographs above mentioned to illustrate his testi- (The mony. again court instructed the the photographs were allowed in purpose evidence for no other than that of illustrat- ing testimony witness, they being substantive evi- dence.) This witness also certain clothing identified articles of washcloth, previously State, introduced evidence having upon Kathy’s body by been found him at the time of his morning examination on December, of 19 and stated that their condition at in the time he saw them the courtroom was the same as at the body. time of his examination of the child’s He testified TERM 1969 SPRING

State from the above on the washcloth came opinion that his the blood Kathy body of Carr. mentioned “tear or laceration” of the by the following summary the evidence introduced is a defendant: years age he was 27 testified to the effect that

The defendant his mar- prison robbery prior to and had served a term armed prison from he “felt de- riage Upon mother. his release Kathy’s about six separated Kathy’s from mother pressed and worried.” He becoming worried, de- Kathy’s death. He then “was prior weeks losing “grip mentally pressed moody” and “felt like” he was Kathy. Kathy he took from physically.” as well as He loved When feeling very “was de- grandmother’s December, home on 16 he her between him up-set over the situation” pressed, very worried grandmother’s Kathy, home with he took Leaving his wife. taking give a bath before where he decided to her her to his home her Kathy asked him when she and mother her to her mother. then replied that he did not know to live with him. He could come back asking “yelled him and he at her and they kept could or not. She spanked lightly. her She began cry and he told her to hush.” She does not remember mind.” He cried harder and he “went out of [his] in his home, found himself back happened from then until he what glimpses happened” of what or what “impressions, flash except for map drew the above men- two hours. He happened thinks those he thought Kathy was buried. where he He showing the location tioned clearly” does not “remember grave to the but took the officers spank enough hard did not her Kathy. He actually he buried Kathy. raped officer that he did not tell the make her bleed. He prison out of that when he came mother testified The defendant’s in a seemed to be and, May, “he “very he was nervous” mother, last visit to his of mind.” On his and troubled state worried very, very in a ner- appeared to be 1967, “he prior to 16 December incapable “he opinion, her on 16 December state.” In vous wrong charge right relation between distinguishing wrong at the time she was and he did not know murder” for the and served sentence She, herself, was convicted testifying. (The father was her first defendant’s her second husband. murder of husband.) “good” testified that he was witnesses

Other good” and he was reputation very “his character and Kathy, including rela- witnesses, job. of these good worker on his Several they no indication of observed defendant, testified tives of the parole officer them, the defendant’s insanity his conduct. One 300 IN THE SUPREME COURT

State v. Atkinson from the from prison time of his release on the sentence of armed robbery approximately until two to prior 1967, months 16 December opinion testified right that in “knew wrong” defendant from supervision when he witness, came under he that did so on 16 December and still did so at time of the 1967 trial.

Prior an trial, pursuant duly issued, order the defendant was hospitals sent to one of the insane for days State’s 60 for ob- examining psychiatrist servation. The was called as a witness for expert testified, State rebuttal. He as an witness, that sawhe during the defendant at stay intervals the defendant’s at the hos- pital from April opinion 1 to 6 June of wit- during ness the defendant “was sane the time that he was confined to Cherry Hospital.” study From his during of defendant that period, opinion it is his that “was defendant sane” and “knew wrong” from 16 December “right on knew wrong” testifying at the witness was the time so at the trial. At the time was in hospital, I.Q. rating the defendant he had an rating being the normal from to 115. prospective

In jurors the examination three of them stated they their own volition that do not “swear.” One the three said he would like “affirmed.” The two to be other made no statement juror affirmation. In instance the excused each court “in the exercise of an exception its discretion.” The record shows to each of objection these actions of court but no at the time of the court’s ruling. argument oral counsel for the defendant stated he that objection interpose did not at the time. record discloses no challenge questioning any prospective three jurors these party. nothing either any There the record indicate that acceptable the three would or would have been either to the or to the defendant. objection Over the court sustained the challenge prospective juror After State’s Corum. explaining the prospective juror, nature of this the case to the solicitor asked: you juror “In the event that are sworn as a case, in the further that event State of North Carolina should you furnish sufficient in this evidence case which in your opinion ‘Guilty warranted verdict of Murder the first degree,’ you you or would do have moral religious scruples against bringing out a of ‘Guilty,’ you verdict knew penalty verdict would be death?” prospective juror answered that he would have such scruples. The solicitor then asked: SPRING TERM 1969

State your feeling “Then is strong that, your so about or are they scruples, religious whether or moral strong so you bring no event could ever out a verdict of if you knew would be death?” prospective juror

The again answered the affirmative. The court then you asked the solicitor, par- “Do mean in this ticular case?” and replied the solicitor that he The challenge did. thereupon was sustained. objection

Over by the defendant challenge the solicitor’s for cause prospective juror Thompson was allowed. The solicitor asked this prospective juror: particular

“In this case, you after all have heard of the evi- dence for the State and the evidence for defendant, if the evi- dence of the State should you beyond convince a reasonable doubt that guilty, the defendant you do have moral or religious scruples against bringing in a verdict of in this particular you case if knew that the death would be invoked?” prospective juror

The replied that scruples he did have such had had scruples such ever he since could remember. challenge was thereupon allowed. objection

Over the challenge defendant the pros- State’s pective juror Best was allowed. The solicitor asked prospective this juror: Best, you

“Mr. if juror are sworn as a particular case having and if after heard all of the evidence the State has sat- you beyond isfied a reasonable doubt the defendant you guilty, would you any religious do have or moral scruples prevent you bringing would out a verdict of you ‘guilty’ knew the sentence would be death?” prospective juror replied that he did The. have such scruples and had had them ever since he had been old enough to understand. Thereupon challenge was allowed.

The record contains no other questioning of prospective jurors concerning statement their except selection following:

“There prospective jurors were 50 called to the stand before every juror seated this case and called to the questions stand was asked the similar as set out above con- cerning capital punishment.” IN THE SUPREME COURT including jurors, alternates,

Fourteen two selected. The many remaining challenged record does not show how 36 were cause, cause, peremptorily by or for what the State or how many challenged were so the defendant. It was conceded in oral argument party that neither had exhausted its peremptory challenges completed. when the selection of the argument jury, the course of the solicitor’s counsel for objected the defendant solicitor’s statement, “His mother said charged she didn’t killing remember whether she was her first husband or “I replied, distinctly not.” The court remember that she said it.” The defendant contends that this was unauthorized ex- pression opinion by of an the court. grounds upon which the defendant seeks new trial are (1) challenge

these: The allowance of the State’s for cause to the prospective jurors expressed who objections, as above shown, to capital (2) punishment; excusing the court’s upon its own motion prospective jurors sworn, who refused to be shown; above (3) overruling objections the of the defendant’s to the introduction photographs, clothing evidence of the bloody the and the wash- upon cloth body Kathy found the and shovel, Carr the above (4) mentioned; permitting expert pathologist the court’s the testify to having raped reference to the child’s been photo- and his use of (5) graphs, mentioned, testimony; above illustrate the court’s testify permitting psychiatrist the that the defendant knew wrong alleged offense, from at the the during time of the time the psychiatrist observed the defendant and at the time the trial; (6) court, shown, concerning the statement of the above the tes- timony of the mother the defendant.

Attorney Morgan Deputy Attorney General Moody General the State. George Kornegay, Jr., R. and John S. Peacock for defendant. LAKE,J. provides

G.S. 15-180 an appeal judg- that to this from a Court ment in a criminal action perfected “shall be and the case for Supreme settled, provided Court civil actions.” pro- G.S. 1-282 vides upon appeal judgment that an copy a civil action a appellant’s appeal statement of the case on “shall be served on respondent days within fifteen from the entry appeal * * * taken judge trying that Provided, the case shall have power, enlarge of his discretion, exercise the time in 303 TERM 1969 SPRING exceptions thereto appeal case on statement of which to serve of case.” or counter statement judge who tried the statute, By the terms

[1-3] ap on of the case serving the statement case can extend the time for extension, he having granted one that, has held peal and this Court at which the expiration of the term may grant another after the S.E. Dixon, v. 260 N.C. judgment was entered. Machine Co. state appellant’s serve the of failure to Normally, 2d 659. the effect statute, or by the within the time fixed appeal ment of the case on judge, is by the trial authorized extension period within of such limited to considera Supreme is upon appeal such Court thereof, the face appear if no errors on proper tion of the record supra; Twi Dixon, Machine judgment will be affirmed. Co. duty of 2d 321. “It is the 217, 132 S.E. Harrison, 260 N.C. ford up made and transmitted properly appellant to see that the record Stubbs, 2d S.E. court.” State v. 265 N.C. The record shows that on day judgment pronounced to this gave appeal notice of superior in the court the defendant time allowed judge then extended the presiding Court and the the case appellant’s statement of service of the the statute for the judge pre subsequent two orders appeal days. on the term at siding expiration of trial, at the entered after the undertaking further to extend the judgment pronounced, ap of the case on appellant’s statement time for the service of the judge, different undertak by a peal subsequent and a order entered the statement of the service of ing time for the further to extend the appeal, case on were nullities. which it is taken court from appeal taken, After

[5-7] except appellate procedure has with reference to the authority no by the statute. See Machine Co. specifically conferred may obtained of time be Dixon, supra. v. Further extensions appeal which the by the court to petitions for certiorari directed to with by was filed the defendant petition has been taken. No such and in view discretion in the exercise of our However, this Court. court, we, superior imposition of the death certiorari, for appeal petition as a upon motion, our own treat assignments upon all of error their allow the and consider same within time prop merits as if had been served appeal the case on erly allowed therefor. Concerning Challenged Capital

Jurors Views Punishment Because Of ^[13] The record discloses no error in the rulings trial judge 304 IN THE SUPREME COURT

State challenges by for prospective jurors cause the State to as the subject capital punishment. result of their stated views on the ^[8] Prior to the decision of the Supreme Court of the United Witherspoon Illinois, States in 510, 1770, 391 U.S. 88 S. Ct. 20 776, that, L. Ed. 2d it was established well under the law of this State, challenges it was not error allow by for cause the State to prospective jurors they scruples who stated had “conscientious against in a penalty” the infliction of the death case where such penalty might pursuant be inflicted to a verdict of guilty. State v. (first Spence hearing), 802; 23, Bumper 271 N.C. 155 S.E. 2d State v. (first hearing), 521, 270 N.C. 155 S.E. 2d State v. Childs, 269 307, Peele, N.C. 152 S.E. 2d 453. See also 274 106, State N.C. 161 Vick, S.E. 2d 568. In State v. 43 N.C. S.E. the Court quoted approval following with statement 17 A. and E. Enc. 1134:

“Though ground challenge no such for is to be found stated English cases, States, early in the United part since the century, the nineteenth the fact that has one conscientious scruples against capital punishment the infliction of has been regarded disqualifications furnishing ground as challenge prosecution, for an may punished on a trial offense which be by death.” law State, distinguished of this from the as Constitution of the States, changed respect

United has in this not been since those de- cisions were rendered.

[9] The Constitution of the United States, as interpreted by Supreme Court of the United States in Witherspoon case, supra, is, controlling of course, as it insofar conflicts the law of this recognized Spence (hearing we so State v. remand), on N.C. 164 S.E. 2d 593. There we allowed new trial because stipulation the record contained 150 veniremen were successfully challenged for opposition cause “because of their stated capital being punishment,” contrary Witherspoon de question cision. The before us is whether now Constitution States, interpreted Witherspoon the United as case, is violated challenges the allowance of the State’s cause shown present record. majority opinion in the Witherspoon case sharply defines positive negative

the line drawn that decision both state affirmatively holding ments. The stated its Court follows: “Specifically, we hold that a sentence death cannot . SPRING TERM 1969 State Atkinsow if

carried imposed out that recommended or chosen by excluding simply they veniremen for cause because general objections voiced to penalty expressed the death or con- religious (Emphasis scruples against scientious or its infliction.” added.)

Speaking negatively, the Court said:

“The issue before us a narrow one. It does not involve the right prosecution challenge prospective cause those jurors who state that their capital punish- reservations about prevent impartial ment would an making them decision as guilt. the defendant’s does Nor it involve the assertion State’s of a capital exclude from a case those who say they that impose penalty could never vote to the death that they imposition would even to its consider refuse case stop them. For the Illinois did not there, before but prosecution authorized the to exclude as well all who said they opposed punishment capital and all who indicated they scruples against (Em- that had inflicting conscientious it.” phasis added.)

Again, Footnote the Court said: repeat, “We that however, nothing saywe today bears power aof State to execute a defendant sentenced to death a jury from which the veniremen who were in ex- fact cluded for cause who (1) were those made clear unmistakably they that automatically would against imposition vote capital punishment regard might without evidence that at developed (2) the trial them, case before that their prevent attitude toward penalty the death would them from making impartial as to guilt” decision the defendant’s Prospective juror Corum stated specifically that his feeling against capital punishment strong was so that no event could he bring guilty ever out verdict of he penalty knew the would be death. juror

Prospective Thompson stated even if the evidence should him beyond convince guilt reasonable doubt religious scruples defendant he would have “moral or against bring- ing in a guilty particular verdict of in case” if he “knew the death invoked.” Prospective juror would be Best stated that even though, hearing after all of the evidence, he was satisfied beyond reasonable doubt that the defendant he would “religious have prevent or moral scruples” would him “from IN THE COURT SUPREME

State v. ” would if the sentence bringing ‘guilty’ a verdict of he knew out be death. trial of this defendant

[11, that, It is true at the time of the 12] punishment superior provided 14-17 court, G.S. at if, for life degree imprisonment murder in first would be so recom open jury should rendering court, time of its verdict in duty of the mend, and, Court, of this it was the under the decisions in its judge jury might, that it capital trial in a case to instruct the discretion, such recom guilty unbridled verdict of render its in the matter binding upon the court mendation, which would then be 789; 106, 89 2d State v. Carter, of sentence. State v. 243 N.C. S.E. jury actually selected 630, 2d 212. The McMillan, N.C. 65 S.E. was so instructed. Since try present the defendant in the case follows that unanimous, necessarily verdict jury must be of murder juror guilty a verdict of only one refused to consent to had punishment the first recommendation without imprisonment imposed could not be life, be the death sentence jurors Thomp upon prospective Corum, Consequently, the defendant. upon present in the son and served Best could each have violating his stated case and a verdict of without rendered penalty. religious scruples against moral or the death ^[13] It does not follow, however, that the sustaining of the State’s jurors rule of the Wither challenges prospective violated the these answers spoon supra. perfectly It clear from their case, prospective record, upon examination, that each of these voir dire up made hearing evidence, already had jurors, before the de pursuant to which mind that he would not return a verdict might lawfully whatever the evidence might executed, fendant be opinion Witherspoon in the language majority be. In “they impose vote to jurors clear that could never case, these made it even consider its im “they would refuse penalty” the death automatically position them,” “they would the case before regard without capital punishment against imposition vote the case be might developed at the trial of any evidence that fore them.”

which will give State, as well as the it a fair impartial defendant, verdict upon every is entitled to issue prop including question whether, presented evidence, erly beyond any them defendant, believed evidence, degree murder, should be guilty of first reasonable doubt to be decision Wither imprisoned for life. The executed or should be right. of this deprive the State spoon Illinois, supra, does SPRING TERM 1969 Atkinsott Irving v. Breazeale, 231, 236; 400 F. 2d Dutton, Williams v. 400 F. 805; 2d 797, United Valentine, Supp. States v. 957, 966; 288 F. Mathis, State v. 238, 20, 52 N.J. 245 A. 2d Smith, State v. (Wash.), 2d Supreme 446 P. 571. As the Court of the United States said Swain v. Alabama, 380 U.S. 85 S. Ct. 13 L. Ed. 2d 759: challenge

“The function of is not to eliminate ex- partiality tremes of sides, on both but to parties assure the jurors they try before whom the case will decide on the * * * basis of the them, evidence before and not otherwise. Although historically the incidence of the prosecutor’s challenge has differed from that of the accused, the view this country has system guarantee been that should only ‘not- freedom any against bias accused, any prejudice but also from against prosecution. Between him and the State the scales are evenly to be Hayes Missouri, held.’ 120 U.S. 70.” [15, 16] Following the recital of the voir dire examinations of the above prospective jurors rulings and the sustaining of the court challenges them, the State to the record contains the follow ing statement:

“There prospective jurors were 50 called to the stand be- fore a jury was every juror seated this case and called to the stand was questions asked the similar as set out above concern- ing capital punishment.”

There is nothing in this any statement to show entitling error to a new only trial. It shows prospective jurors that 36 excused, were 14, including two jurors, having alternate been se- lected. many The record does not show how of the challenged 36 were by the challenged defendant or how many were the State or how many challenged by were party peremptorily. either Of those chal- lenged successfully óause, for exception of the three named above, challenge the record does not show that was based upon single juror the answer of a prospective any question with refer- capital ence to punishment. Indeed, the record does not show the juror any answer of any question upon subject other than the prospective jurors three above mentioned. The statement that “the questions concerning similar capital punishment” as set out above juror were error, asked each discloses no first because it does not any show sufficiently question the content of since those asked prospective jurors Corum, Thompson, and Best were not identical, certainly any second because in allowing there no error ques- IN ; THE SUPREME COURT .[275 prospec- any one of those three propounded

tion identical to that question juror’s answer to such jurors. prospective tive Even if a challenge cause, certainly it would support sufficient to were not intelligent use permit in order to proper question to ask the challenges by law to the State. See peremptory allowed Alabama, supra. Swain v. nothing in this indi- there is record

We, therefore, conclude that he has been cating contention of the defendant any merit States, of the United any right under the Constitution denied sustaining any challenge for State, under law of this juror’s statement of prospective cause the State reason subject capital punishment. his views on the Unwillingness Take Excused Because To Oath Jurors Of The court’s action excusing, its discretion and its jurors who refused to take the cus prospective motion, own three a new trial. tomary ground granting the defendant oath, is not record, jurors prospective of these ex- According to the one record indi- rather than swear. The pressed willingness to affirm They of them. propounded to question cates that no by court. The record dis- challenged. They were excused concerning of them closes no other information about they that record does not state action. The reason for the court’s taking an objection to oath. While excused of their because of these ac- by the defendant to each exception an the record shows interposed any objection thereto court, it does not show tions of the defend- Court, this counsel for the argument in at the time. oral objection interposed, was then no such frankly ant stated of the statement of preparation exceptions having been entered appeal. on the case juror to affirm rather than take prospective of a The desire

[17-19] challenge in this cause for State. See: G.S. not, itself, an is of oath nothing appearing, even hand, else 11-11. the other 9-14; G.S. On challenge does not improper for cause of an the erroneous allowance long as who trial, a so those party to new entitle the adverse actually empaneled upon serve are qualified competent are where, here, true as especially This is his case. jury which tried challenges. peremptory See: not exhaust party adverse did Cunningham, 72 295; State v. Vann, v. State 534, 77 S.E. 162 N.C. jury a of his selec not entitled to 474. The defendant 469, N.C. law with jury pursuant a selected only to tion or choice but against a class or substantial discrimination unconstitutional out SPRING TERM 1969 309 State v. Atkinsoít

group of the from community jury panel which the drawn. He has no right particular “vested juror.” Vann, supra. to a State ^[20] It has long been established in this State that it is the and duty of the court see that fair competent, impartial a jury is empaneled in its and, end, court-, discretion, may to that excuse prospective juror challenge a without a either party. State v. Vann, supra; Vick, Boon, State v. State supra; 80 N.C. Jones,

State v. immaterial 415. It is N.C. that this is done as the result of voluntarily juror information prospective disclosed questioning. without v. Vick, supra. State

[21] We must bear in mind that trial judge had these prospec jurors tive opportunity before him thus had an to observe their apparent advantage an a qualifications, virtually empty record nothing does not afford us. guide With the record to us, we cannot say that appearance there was not in the or manner of these three prospective jurors of qualification sufficient indication their lack of jurors to serve as in a important case this serious and nature. But might even we have reached a different respect conclusion this that reached trial has judge, been settled in this State long ago since as v. Ward, N.C. irregularity forming jury a is waived of a at party silence the time There, court’s action. later Henderson, J., C.J., said, “He shall not by consent a kind, acquittal by take double chance” on jury so selected or a trial new because such irregularity Boon, selection. also supra. recognition See State v. For a recent judge excusing prospective juror discretion the trial with (first challenge, Spence hearing), out see State v. N.C.

155 S.E. 2d 802. judge was a The defendant systematic does exclusion from not contend that this action members trial belongs. class to which the defendant himself His contention is that the court excluded from the a class of persons, i.e., those who scruples against taking have an oath, deprived and thereby the de jury fendant of a drawn from a fair cross of community. section the Illinois, Witherspoon supra; v. Texas, See Hernandez v. 347 U.S. 475, 74 667, S. 98 L. Ed. v. Co., Ct. Thiel Southern 328 Pacific 217, 984, U.S. Ct. L. Ed. 1181; Texas, 66 S. Smith v. 311 U.S. 128, S. 164, 61 Ct. 85 L. Ed. nothing

There is in the persons record to indicate that have who scruples against taking conscientious they oath that prop- will erly perform jurors their duties constitute any pro- substantial portion prospective jurors of in Wayne the County and we know of IN COURT THE SUPREME

State v. show, Nor the or cir- nothing which would so indicate. does record jurors scruples such indicate, known to us that cumstances impose or to the be less inclined than others to convict would a single limited to penalty. scruples are not members Such person religious may well be that such a denomination or sect. It provisions more constructionist of the retributive would be strict defendant, having the the same any event, Mosaic law. In the judge prospective observe these three opportunity as the trial to object being their excused from jurors did to courtroom, in the not verdict was rendered. jury until after the Texas, a defendant com supra, v. establishes that Hernandez [23] plaining jury the selection of which group discrimination from the proving persons excluded tried has the burden of him county in the from which the separate of a class are members step the first to be Alabama, supra, v. states that Swain comes. persons establish excluded by such a defendant taken community may be group in the belong an “identifiable question in a situ is, ultimate such subject That prejudice.” represented fair cross section jury selected ation is whether the to estab upon defendant community. The burden the entire Alabama, supra; Texas, v. v. Hernandez not. Swain lish that did to this conclusion. us not lead supra. The before does record Photographs, Clothing, Etc. Introduction Of admission, objec err in the over did not [24, The court 33] body of the clothing washcloth found de tion, of officers from the residence by the shovel obtained child, the ceased photographs used permission with his of the concerning testimony their to illustrate of the State witnesses body child’s place where the appearance location It contended that body. is not and the condition found buried properly authen the washcloth were clothing and the articles any respect in are photographs that the and identified ticated purport represent or were not they of what portrayals accurate taken and authenticated. properly held there was alleged victim of a In State no error Speller, rape admitting 230 N.C. murder, which into evidence S.E. 2d bore tears garments garments this Court worn the case. In State theory State’s

and stains corroborative permitting no there was error held that supra, it was Vann, jury, homicide to exhibited place found at articles a fact body, or to establish identify being competent these 311 TERM SPRING 1969 State v.

relevant to State’s theory case or enable the completely cogency testimony realize more and force of the Thus, clothing by alleged witnesses. worn victim of a felonious properly may homicide introduced in evidence the lo be to show cation person of a Fleming, wound the deceased. State v. 202 512, Bass, N.C. 163 S.E. 453. also: State v. 209, See 249 N.C. 645; 105 Petry, S.E. 2d State v. 36 78, 226 N.C. S.E. 2d 653. In the present case, properly instructed that

photographs question were allowed in pur evidence for the sole pose illustrating testimony of witnesses and substan not as tive Norris, 47, evidence. See: State v. 242 916; N.C. 86 S.E. 2d State v. 212 Perry, 533, photo 193 N.C. S.E. 727. The fact that a graph depicts gruesome a horrible, revolting indicating scene, a vicious, cruelty, calculated act of lust, malice or does render not the photograph incompetent in evidence, when properly authenti cated as a portrayal correct conditions observed related by the photograph witness who uses testimony. to illustrate his State Porth, 10; v. 269 153 329, Rogers, N.C. S.E. 2d State v. 233 390, 572, N.C. 2d A.L.R. 2d 1104; Gardner, 64 S.E. 28 State v. 228 567, 824; Stansbury, N.C. 2d Evidence, 46 S.E. North Carolina 2d Ed., 34. For collection of authorities to the same effect § other jurisdictions, see 73 A.L.R. Annot., 2d 769. “Ordinarily, photographs competent are to be [26-28] used explain anything witness to competent illustrate it is him Gardner, supra. photo describe words.” State v. fact that the graphs admissibility. in color does affect are not their v. Hill, State 272 439, 329; People Moore, N.C. S.E. 2d v. 48 158 Cal. 2d 310 P. 969; 2d Makarewicz, Mass. 575, Commonwealth 132 N.E. 2d 294; supra, p. Annot., Thus, prosecution 811. for homicide, photographs showing the when body condition the loca found, surrounding tion where found conditions at the body time the incompetent by was found not rendered their portrayal are gruesome spectacle horrifying events which the witness testi they accurately portray. fies v. Stanley, State 227 N.C. 44 S.E. Cade, 2d 7. State v. 215 N.C. S.E. 2d necessary photograph It is taken [29-31] correctly witness, represents witness testifies what the Stanley, supra; witness Stansbury, observed. North Caro photograph body lina A the de Evidence, Ed., 2d ceased is reason of not inadmissible the fact that it was taken body place originally after the had been moved from the where morgue place found and carried to the other for examination. COURT IN THE SUPREME

State v. 514, 14 2d supra; Miller, N.C. S.E. Gardner, State v. State v. 219 portrays that was taken and Obviously, photograph the fact 522. occurred body at time after the homicide the condition some incompetent. photograph Hill, State v. not, itself, does make 122, 864; Porth, v. 153 2d State v. supra; Lentz, State 270 N.C. S.E. Evidence, Ed., 34. supra; North Carolina 2d Stansbury, § ^[32] being The properly authenticated, photographs in question, meeting properly the test of admitted relevancy evi purpose judge, and, conse dence for the limited stated trial permitting to see them. State quently, there was no error 494. Mays, 486, v. 225 35 S.E. 2d N.C.

with his ^[33] permission, shovel taken immediately officers from the defendant’s after the child’s body was removed home, it, had admitted he buried was place where defendant The defendant’s state competent for admission evidence. clearly dug grave had the shallow with “his to the officers was he ment place his where which then returned to the behind house shovel” he type with dirt of the same as that of found it covered the officers place. in the child’s burial the soil Tending Show Another Crime

Evidence To ified as There was expert witness, no error testify allowing as to the conditions pathologist, properly he observed qual and his conclusion therefrom that had been body child’s she properly permit this witness to use au nor was it error raped, body to his photographs testimony. illustrate thenticated this was error because it contends [34, defendant 35] tending commission of a criminal offense testimony to show the was on that of murder which (rape) other than crimes, is established that evidence of other hav it well trial. While bearing trial, the defendant is on upon the crime for ing no taking the stand as witness prior be may not introduced facts, settled that all relevant to behalf, equally is well his own having committed the offense proof of the defendant’s competent, may evidence, otherwise charged, shown which he necessarily indicates the commission though that evidence even Christopher, 249, v. 258 offense. State N.C. another criminal him of McClain, 171, 364; 240 81 S.E. 2d v. N.C. 667; 2d State 128 S.E. Stansbury, 697, 2d North Car Harris, 28 S.E. State v. 223 N.C. offenses Thus, such evidence of other Evidence, Ed., olina 2d pur charged committed for the “the competent to show crime Beam, 730, v. 115 crime,” State N.C. pose concealing another TERM 1969 SPRING State i>. Atkinson “a part

S.E. or to show motive on the the accused to commit charged,” McClain, supra, the crime State or show the quo animo, intent, design, guilty knowledge, make scienter, or or to out gestee, respect the res a chain to exhibit of circumstances in trial, the matter on when such crimes so connected with are charged light upon offense throw these ques as to one more of supra; v. Christopher, Harris, supra; tions. State Stansbury, Ed., North 2d Evidence, Carolina and 92. §§ In State v. Westmoreland, 181 N.C. 107 S.E. sustain- ing degree, a death sentence murder in the first Court, speak- ing through J., said. are Walker, position “There authorities for the any unseemly corpse person that conduct toward the of the slain, any indignity it slayer, offered the and also concealment of the of body, expressed malice, premeditation are evidence and of in slaying, depending, deliberation course, upon peculiar the of the of case.” circumstances the

[36] It entirely proper in the present instance to permit the including offer evidence, State to this the photographs, to establish motive, premeditation, the deliberation part and malice on the of in the defendant for and the murder with which charged he was the State.

Testimony Insanity 4s To ^[39] There was no error in permitting the psychiatrist, duly qual expert an witness, ified as who examined pursuant the defendant, court, of the order the some three and a half months after the al testify leged offense, upon that the basis his of observation of the opinion defendant he was of the the defendant “knew right wrong” alleged from on the date the offense was to have been com mitted. duly qualified witness was as an expert

This in witness the field psychiatry of and testified to his observation of and examination period substantial defendant over of confinement of the de- purpose hospital. for that fendant the State He was called testimony rebut State of the defendant’s that, mother in her between, capable opinion, the defendant was not distinguishing wrong charge right in relation to the of murder on the date the- alleged occurred, offense was to have her testimony being upon the- that, her prior basis of observation the defendant to and after date.

[37, In State, this the test insanity 38] defense to an al leged capacity is the criminal offense of the distinguish IN THE SUPREME COURT

State wrong respect and in right and at time of matter between (first Spence investigation. v. hearing), under State N.C. Matthews, 2d 226 N.C. 39 S.E. 2d 819. 155 S.E. show the mental condition of tending accused, both Evidence act, competent provided after the commission before and at to the defendant’s condition of mind the time bears such relation worthy alleged respect as to be of consideration crime Duncan, 244 2d Obviously, N.C. S.E. thereto. State expert testimony upon sub- practicable to limit it would not who had the defendant under observation at the ject to witnesses was committed. question act instant the testify as to ^[39] State v. his opinion Matthews, supra, concerning it is said that a witness mental capacity may not de charged. with which specific crime he is to commit fendant testify. present case did not so He testi witness expert State’s subsequent his opinion, based examination fied that “right wrong” day knew on the defendant, the defendant being witness, expert in the alleged offense. The field opinion though such competent to relate to psychiatry, precise alleged the defendant on the date of did observe he offense. It is to be noted defendant’s company and that two other who witnesses, did observe him on ones who at 6 p.m., he left her home with the child the other when

day, one reported missing the child at the restaurant and entered when he appeared testified that he p.m., each 9:45 approximately exception witnesses, mother, with the of his own His acted “normal.” insanity. no evidences The burden they observed of testified that this defense the to establish “to satisfac upon the defendant rests Harris, 2d 223 N.C. 28 S.E. jury.” State of tion the By Judge Trial Comment judge ^[41] The response to defendant the assigns defendant’s as error the comment objection to a statement of the by trial the jury. by The the argument to the statement latter’s in the solicitor said she didn’t mother remem was, “his solicitor defendant’s] [the killing with first husband or not.” charged her she was ber whether objected, replied, court “I re counsel the defendant’s When the defendant is not said it.” The entitled distinctly that she member account. on this a new trial testimony of the defendant’s of the summary narrative alleged contain this before us does not the record forth in set

mother TERM 1969 SPRING State testify: “I I did by

statement her. She did have been married twice. kill I was my not second husband but convicted and served time for testimony by his murder.” There was another witness that first her (the defendant) (the husband father of the “committed suicide when defendant) reviewing old.” In was four the evidence months charge required the jury, by statute, as he to do judge trial again stated the defendant’s that mother testified “she murdering husband, convicted her second that not she did recall charged killing and does not remember whether she was husband, her first father the defendant.” To this statement did object attempt not and he made no to call its al- leged inaccuracy to the attention of the court.

[42] It is not required that the appellant set forth in his state appeal ment of on the case the evidence in entirety. its On con trary, 1-282 appeal G.S. states that the case on shall be concise “a case,” practice statement of the and it is common portions to omit testimony parties of the deemed consequence upon of no appeal. charge Our examination of the entire the court discloses a number there were of instances which evidence summarized judge therein by jury the benefit of the is not otherwise re flected in record These before us. indicate that in the preparation appeal the statement the case on the appellant did under not take entirety. to set out the evidence in its all of The court testimony correctly to be instructed guided its recollection and not it was to recall summary

the court’s of the evidence. While is error it for the court express opinion reflecting upon to the the credibility of a Auston, witness, 223 N.C. 2d 613, S.E. we think it a strained remark construction court this instance to call an expression opinion by credibility court If it itwas, witness. is obvious that the statement was prej not udicial error since the witness had her admitted conviction murder of the second husband. It is inconceivable that this state court, ment even if inaccurate, affected the verdict jury. justify awarding It does new trial to the defendant. point is not stressed the defendant in his brief.

Validity The Death Sentence Of The defendant does in not, his assignments of error or in his- brief, question validity judgment imposing the death sentence, Nevertheless, appeal as such. is, itself, an exception brings judgment and thus before us for review all matters! IN THE COURT SUPREME

State including sufficiency proper, of the record on the face appearing imposition of the death sentence. support of the verdict Appeal Error, 26, and cases 2d, Index Strong, North Carolina question of whether the ver- therefore, turn to the We, cited. there more, without authorized degree, in the first murder guilty of dict of sentencing judgment its the defendant to enter court superior asphyxiation. death Supreme the decision of the supra, we said that Peele, State v. Jackson, v. in United States 390 U.S. the United States Court holding authority “is not Ed. 2d 1209, 20 L. 88 S. Ct. may imposed not be under Carolina in North penalty Sharp, JJ., concur rape.” Bobbitt and crime for the circumstances present Peele did not opinion that the case result, were

ring in the Jackson case “invalidates whether determination for this Court’s North Carolina statutes.” present under penalty the death (hearing remand), 274 N.C. on S.E. Spence v. In State already held, Peele, has State v. “This Court said, 593, we 2d ** * Jackson, authority v. United States supra, altogether in North is abolished Car punishment holding capital much from so of the de Sharp, JJ., dissented Bobbitt olina.” trial, being a new their view case as directed Spence cision statutes, when present of our considered provisions “the death invalid.” Jackson, are light of of United States v. question of the effect Jack- or not Whether us in either State v. Peele, was before 14-17 upon G.S. supra, son, present is before us in the supra, it Spence, in State or supra, question in the ma- expressed views reaffirm case. We Peele, supra, and State v. this Court opinions jority supra. Spence, provides: 14-17

G.S. degree defined; punishment. second in the “Murder first — perpetrated poison, means shall be which murder A starving, by any torture, or other imprisonment, wait, lying killing, or premeditated deliberate willful, kind attempt perpetration perpetrate in the committed be shall burglary felony, shall be robbery, rape, other any arson, punished and shall be in the first be murder deemed rendering its if at the time verdict Provided, death; recommend, punishment shall so jury shall court, open and the prison, in the State’s Court for life imprisonment *” * * jury. instruct so shall SPRING TERM 1969 State v. Atkinson proviso was added an in 1949, amendment enacted the re- having

mainder of the statute been enacted 1893. G.S. 15-162.1 was enacted in Though subsequently repealed by Chapter 117 of the Session Laws it was in effect at the time of the defendant’s trial provided below. It any person, charged in a bill of indictment with murder in the first degree, might, arraignment, signed after tender in writing, by himself and his coun- sel, plea of guilty crime, of such State, and the with the approval might court, accept such plea reject it, which latter event proceed the trial should upon plea guilty of not and the tender of plea guilty significance. would legal have no G.S. 15-162.1 provided: then

“(b) plea the event such accepted, the tender and acceptance thereof shall have the effect a jury verdict of charged of the crime recommendation open punishment court that imprisonment shall be for prison; life the State’s and thereupon, pro- the court shall judgment nounce imprisoned the defendant be life prison.” State’s It is to be noted that G.S. 14-17, providing for the sentence imposed upon a verdict returned jury, 15-162.1, and G.S. providing for imposed the sentence to be accepted plea of guilty, separate were statutes, distinct having G.S. 14-17 been long in full effect before G.S. 15-162.1 was It cannot, enacted. there fore, they be doubted that always separate legisla and distinct tive provisions, capable that G.S. 14-17 is standing alone as it did years for several and that the validity of G.S. 14-17 cannot be affected adversely by invalidity, if any, repeal G.S. 15-162.1. 15.162.1, leaving G.S. G.S. 14-17 intact, Legislature’s shows the 1969 intent for G.S. 14-17 to stand alone.

In United Jackson, States v. supra, Supreme Court of the judgment United States reversed a of the District Court which had dismissed an indictment for violation of the Federal Kidnapping Act, 18 provided: U.S.C. 1201. That Act * * * knowingly transports “Whoever in interstate com- * * ®

merce, any person who has been unlawfully kidnaped * * * * * * and held for ransom punished (1) by shall be death if kidnaped person has not been unharmed, liberated if the verdict of (2) by shall recommend, so im- prisonment years term of or for life, the death imposed.” is not n IN THE SUPREME COURT opin- in its the Court of the United States observed Supreme

As Kidnapping originally the Federal Jackson case, Act, in the ion Congress provision in contained no for the infliction enacted An inserted the punishment. amendment, enacted capital authorizing penalty imposed spe- the death to be under provision jury “if the verdict of the shall so recommend.” circumstances, cific was that the the Jackson case amendment 1934 The decision of imposed impermissible the “an reason was unconstitutional right of” defendant’s upon the exercise the constitutional burden a trial. jury demand adoption of the 1934 one accused vio- amendment,

Prior the Kidnapping Act could his constitutional lating the Federal exercise penalty trial risk of the jury a without death the right to demand guilty. amendment, Under the 1934 he could not. For jury found him authorizing jury held the amendment the reason, 1934 Court penalty unconstitutional, at death was not because the to fix se, per unconstitutional but because penalty, discouraged exercise defendant’s constitu- amendment jury. original then right a trial The Court said that tional provision Act, discouraging contained no Kidnapping which Federal right trial, to a could stand and should as a the exercise of statutory apart enactment from the amend- separate, divisible from the the Court struck act the 1934 amend- Consequently, ment. original form, in its leaving the act held indictment ment, valid.

[44, of G.S. legislative history 14-17 G.S. 15-162.1 45] The legislative similarity history whatever of the Federal no bears anything If there two statutes Kidnapping Act. these demanding a discouraged jury trial, from it was found the defendant separate later of two distinct 15-162.1, the statutes. in G.S. 15-162.1, while is not constitutionality effect, presently of G.S. no with its express opinion reference to then us and we va before subsequently upon invalid lidity. If, however, statute held v. Jackson, supra, United States ground suggested other validity affect will not and cannot such G.S. wise, decision independent, existing separate, previously and sur 14-17, wholly Jackson, supra, United States v. Thus, the decision viving statute. judgment in this case, at and does not now not, the time of did impose the pur this State to sentence of death the courts of forbid in accordance with G.S. 14-17. suant verdict ^[46] United States Jackson, supra, arose on a motion to dis present case comes us after before de- miss the indictment. SPRING TERM 1969 pleaded fendant has to the indictment. In case, the Jackson it was might not known how plead. case, the defendant wish to In this pleaded and was tried a jury. Whatever the might effect of charged G.S. 15-162.1 have been other defendants degree being murder, first its the statute book at the time arraignment of this defendant’s discourage trial did not him exercising jury. constitutional to a trial There remains for decision the question of whether im position of the death for first murder is unconstitu per Supreme tional se. The Court the United States has not so nothing declared. We find in the Constitution of the United States which leads us to such conclusion.

[48] The imposition of the death penalty upon a conviction by expressly murder is authorized XI, 2, Article of the Constitu tion of Carolina, adopted North 1868. 14-17 pur G.S. was enacted provision. history suant to that constitutional The provision this major significance in our State Constitution is of in the determina tion of the effect of the Fourteenth Amendment to the Constitution authority of the United States North Carolina to im pose penalty. provision This death reads as follows: punishment. object punishments “Death being not —The offender, satisfy Justice, but also to reform the and thus arson,

prevent crime, murder, burglary, rape, only, and these may punishable death, with if the General Assembly shall so enact.” 1868,

Prior to the Constitution there was no reference to the penalty in the Constitution of North Carolina. The death nevertheless, imposed in was, many cases this State from 1868, winning independence just of our down to as it was im- posed during period by that courts the other states of the provisions Union, under the of statutes in recognition enacted of the power Legislature fix, of the of a state to in its discretion, a punish- crime, by ment for unless forbidden to do so a constitutional pro- vision. known history

It is matter of well that the Constitution of by adopted order to meet conditions imposed by Congress upon the Federal of this State to send its law- Congress representatives following ful the Civil War. See: History Wilson, Woodrow of the American People, V, pp. Vol. 37, Hamilton, Reconstruction North Carolina, pp. 187, adopted contemporaneously It was with the ratification of IN THE SUPREME COURT

State Amendment to the of the United States. Constitution the Fourteenth Obviously, the entire Constitution of North Carolina Congress by very proposed which the Four- care examined approved Congress. by Amendment to the states and was that teenth Hamilton, op. cit., p. 288. See In the light of this constitutional history, it is inconceivable Congress Amendment, submitted the Fourteenth regarded prohibiting it, anything which ratified therein as states penalty upon conviction of first impose the death state frequent imposition widespread pen of the death

murder. years courts of the several states the one hundred alty by the adoption Amendment, Fourteenth elapsed since the of the which have by Supreme of the United acquiescence and the therein Court clearly suggestion innumerable, in cases refute the States prevents Amendment the State North Carolina Fourteenth pursuant sentencing this defendant to death to G.S. 14-17. constitutionality by of a state statute cannot be determined Gallup poll opinion public of the with reference to taking a authorizing efficacy morality imposition statute or the penalty, question even if it be assumed that the can be of the death understood all of those reached the takers framed so to be sovereign power of a state of this Union to “straw vote.” The courts, public determined legislation is to be enact sociological by writings journals or treatises. It polls or opinion determine duty of this Court to whether the State of North is the light history in power has that of the constitu- Carolina light in forbid its exercise and provisions said to tional judicial interpretations pro- of those constitutional long line of guided by is not to be tabulations of an- determination visions. Our opinion polls, by poll said to have been received public to swers public, unknown members of the shown to have been takers from language provisions, of such constitutional to either the advertent country. history interpretation the courts-of this their or their ^[50] It is not for this Court, any other court, to determine imposing penalty the death for the commis provision whether the a policy is or is not wise for a degree first murder state con sion of people its from such acts. It is protection with the not for cerned providing whether a statute court, to determine other us, deterrent to first is a more effective murder Legislature be. It penal provision would some other than in that decision. It has done so en to make North Carolina days, within recent has and, 14-17 reaffirmed that of G.S. actment SPRING TERM 1969 State

policy rejection determination its proposal a to abolish the provision imposition for the penalty. question of the death The sole us, before in this connection, any provision whether there is State or Federal prevents Legislature Constitution which North Carolina from adopting enacting such statute to policy and carry it into provision effect. We find no such either Constitution.

Review The Record Ex Mero Motu Of It has long been the rule of this Court that “in capital cases the Supreme Court will review cognizance the record take prejudicial Oakes, error ex mero motu.” See State v. 249 N.C. 282, 106 S.E. 2d 206. have reviewed We the entire case, record this assignments without limitation to of error made the defend ant. represented throughout

The defendant has been proceeding this diligence and skill two attorneys, experienced able in the practice of criminal law the courts Wayne County and in this They appointed represent Court. to him, expense without to him, prior several calling months to the of his case for trial. has He given, him, been free expense expert psychiatric examination to determine his mental competency plead charge brought against expense him, him. Without the record of his trial and the prepared brief of his able been counsel have and made available to carefully Court for review. We have every part considered arguments that record and the earnest of his counsel. The State of North has him a fair Carolina afforded trial accordance with its procedures established applicable to all such cases. support finding ample

The evidence is the defendant, aforethought man, premeditation sane with malice and with deliberation, year his stepdaughter, Kathy killed four old Carr, that, grievously injuring after first her in a manner she could not under- stand, shovel, placed bleeding he it and the child, took had who taught car, been to love and trust drove him, 18 miles to a car, lonely area, little went left the child into the woods, dug grave, and, taking her to the car her in his, returned little hand led through dug, her dark woods the hole he had there smothered body hands, her to death with his threw her the hole into and covered in such a manner that the defendant and God would know resting place. her evidence, jury has, upon

The under full and correct instruc- found judge law, guilty tions of the trial as to the him of first murder and that he has concluded should executed the manner IN THE SUPREME COURT Atkinsojt jury to authorized the of this State by law. The statute

provided thereupon, to enter required judge, such verdict return of law in the find no error in the record. We judgment contained trial granting the defendant a new justify us would trial judgment. vacating modifying the No error.

HiggiNS, J., concurring: degree. in the first When for murder was indicted The defendant trial parties to the plea guilty. a not he entered arraigned, hearing and determi- satisfactory After full jury to both. selected a charged. guilty as The court jury returned a verdict nation, the imposed a death sentence. of G.S. 14-17 followed the mandate long as the ver- was from error. So has held the trial free This Court is authorized. judgment no sentence or stands, dict other Supreme Court by the my opinion rule announced applicable is not this case. Jackson, United States v. 390 U.S. offense the law em- For that kidnapping. Jackson was indicted Kidnapping Act, imprisonment. The judge punish by powered the to unharmed, the victim not released however, provides that if not the jury, judge, but may punishment fix at death. jury guilty, kidnapper bypassed jury power. By plea has a such power punish to judge the trial whose himself placed before Supreme held the fear of the imprisonment. The Court limited to right of the accused on the constitutional penalty was a chill danger jury a trial. The to be guilty and demand plead not to caught in may be a mesh innocent man risk that an avoided is the guilty than plead rather induces him of circumstances which pass on his case. power life or death permit jury a with its might defendant Atkinson have rea- light Jackson, the In the plea guilty pro- under entered a complain he had son to (now sen- repealed) and submitted to life visions G.S. 15-162.1 plead guilty and have rights to not might allege that his tence. He he feared the result incident to because jury trial were abandoned interfered with considerations, wise, no At- jury verdict. These not to have a plead kinson’s constitutional had a trial. His constitutional guilty. not He pled He trial. him. So far as assertion of particular, were denied rights, in no involved. 15-162.1 rights concerned, G.S. these punishment for murder to determine undertakes If the Court imprisonment, goes beyond the' au- degree shall be in the first TERM SPRING 1969 323 State Atkinsow of

thority beyond 14-17 I proper G.S. and think the function ap- of pellate legislative review, and invades the field.

I opinion. concur in the Court’s J., dissenting as to death sentence: Bobbitt, I judgment vote to imposing vacate the In my the death sentence. of opinion, guilty degree verdict of murder the first should be upheld and the pronouncement cause judgment remanded of a imposing a of life imprisonment. sentence

When the despicable loathsome and crime was and committed when defendant arraigned, sentenced, was tried and the statutes relating force degree first murder were codified as 14-17 and G.S. as G.S. 15-162.1. 14-17 G.S. has continued and is now in force. G.S. (effective repealed 1969) by 15-162.1 March 25, Chapter 117, Session Laws 15-162.1,

G.S. 14-17 G.S. when both in force, were were in pari materia. Considered and construed together, they set forth a statutory unitary plan punishment degree for the of first murder life imprisonment. acceptance death or The tender and a plea guilty degree of first murder in accordance with G.S. 15-162.1 re- possibility moved a death sentence. The possibility a death pleaded guilty sentence remained if not placed and was If guilty degree on trial for first murder. found of first mur- der, punishment was death unless the in its unbridled dis- punishment imprisonment cretion saw fit to recommend that for life. my opinion that,

It was and is until G.S. 15-162.1 was repealed, Supreme decisions Court of the United States United States Jackson, 570, 20 138, v. 390 U.S. L. ed. 2d 88 S. 1209, Ct. Pope States, L. 1317, v. United 392 U.S. ed. 2d S. Ct. in- provision validated the death G.S. 14-17 that no valid pronounced. sentence of death could be penalty provisions (18

The death Kidnapping Federal Act 1201(a)) (18 and of the Federal Robbery U.S.C. Bank Act U.S.C. § 2113(e)) held invalid in and in Pope, Jackson respectively, they imposed impermissible burden because an accused’s right Fifth Amendment exercise and his plead right Amendment to demand a trial. No provision Sixth other In gist, of either these statutes invalidated. these decisions penalty provision applicable only held that no death valid if guilt contest their defendants who assert the jury. before a ¡ THE COURT IN SUPREME [2.75

State dissenting (concurring part my made to Reference Spence, 536, 545, 274 N.C. 164 S.E. 2d part) opinion 15-162.1, and to provisions full of G.S. 14-17 and G.S. 598, for the following decisions: United of each of the the discussion therein States, supra; State v. supra; Pope United Jackson, v. States (S.C. Forcella, 245 A. 2d 1968); State v. Harper, S.E. 2d 712 162 (4 (N.J. Carolina, 340 North 405 F. 2d Cir. 1968); 181 Alford (Cal. 1968). 2d 1968); Anderson, In re 447 P. 117 uphold validity the majority The herein seeks opinion support expressed in grounds on other than those death sentence 568, and validity Peele, 274 161 S.E. 2d its State v. N.C. App. 27, 2 162 S.E. 2d 526. Here- adopted State, in Parker v. N.C. grounds upon new after, opinion primarily relates asserted rely. majority which the the United provision

In of the Constitution of my opinion, no pun- Assembly providing prohibits States our General a defendant who is convicted crime ishment death of Assembly degree. province It is the of the General murder in the first policy, as a matter murder whether, to determine of State I am accord with the degree punished first death. should imposition penalty of the death holding that majority’s per unconstitutional We differ as murder is not se. first penalty pro- Pope and invalidated the death to whether Jackson during period prior repeal G.S. vision of 14-17 G.S. 15-162.1. emphasis placed

In is on fact majority opinion, pronounced pur- was the death sentence pleaded guilty not Pope, In whether a de- jury. Jackson and suant to the verdict of the bearing upon va- guilty guilty or not had pleaded fendant no penalty was the death lidity penalty provision. It held of the death provision itself was invalid. Jackson, plead did not to the indictment but

In the defendant penalty provision in- held the death quash moved to it. It was prosecution otherwise valid valid the statute was but but in no event could death sen- proceed would on the indictment present case, as in the the defendant pronounced. Pope, In tence be jury which convicted him directed that pleaded and the Holding in- penalty provision punished he be death. Appeals valid, judgment of the Court sustained cause remanded for further death sentence was vacated opinion. proceedings consistent with the SPRING TERM 1969 v. Atkinsoít my during opinion, provision the death penalty of G.S. 14-17 period prior repeal all G.S. 15-162.1 was invalid under circumstances. Its accord- invalidity vary did not from case to case ing plea. to each defendant’s majority opinion asserts that the 1934 Jackson invalidated

Act, opinion, which amended the Kidnapping my Federal Act. In provision Jackson invalidated the death of the 1934 Act. full May 18, 1934, 781-782, text the Act of Stat.

quoted below. “Be enacted the Senate Representatives and House of Congress the United States America That assembled, the Act (U.S.C.,

of June 22, be, ch. title the same 408a), sec. hereby, amended to read as follows: “ shall knowingly transport ‘Whoever or cause be transported, in any or aid or abet in transporting, foreign commerce, interstate or person unlawfully seized, who shall have been confined, inveigled, decoyed, kidnaped, or carried abducted, away any what- means soever and held for ransom reward in otherwise, or or the except, a minor, by parent thereof, ease of a shall, upon pun- conviction, be (1) by death the ished verdict shall so recommend, if provided imposed that the sentence death shall not be by the court if, prior imposition, kidnaped person to its has been liberated (2) unharmed, death penalty apply imposed or shall not nor be person punished by imprisonment convicted shall be in pen- itentiary years as in for such term the court its discretion shall Provided, person determine: That to release such within failure days seven he shall been unlawfully seized, have confined, in- after veigled, decoyed, kidnaped, abducted, or away carried shall create presumption a person that such has transported been in interstate or foreign commerce, presumption such but shall not be conclusive.

“ ‘SeC. 2. The term foreign “interstate or commerce”, as used shall herein, transportation include State, from one or Territory, State, District to another Columbia Territory, or the District of foreign Columbia, or to a country, foreign or from a country any State, or Territory, the District of Columbia. “ persons If two or more enter into an agreement, con- ‘Sec.

federation, conspiracy or provisions to violate the of the foregoing any Act and do carrying overt act toward out such agree- unlawful ment, confederation, conspiracy, person or such persons or shall be ” punished provided like manner as hereinbefore this Act.’ COURT IN THE SUPREME 326 [275- *. Atkinson incorporates provisions of statute, Act, complete The 1934 1932, 47 Act of June Stat. (original) Kidnapping Federal portion originally enacted italicized in addition the 326, 1, which was proviso in Section noteworthy 1934 Act. It by the de- Act, was not invalidated by the 1934 originally enacted in Jackson. cision integral Pope was an provision considered The death (original) 48 the basic May 18, 1934, Stat.

part Act of of the 3 Federal Bank Rob- Robbery, Act. Section 1934 Bank Federal committing any defined “Whoever, offense bery provided: Act apprehension for avoiding attempting to avoid Act, or in or freeing attempting or in himself or offense, such commission of kills offense, confinement for such free himself arrest accompany him without the consent any person person, or forces by imprisonment for not less than punished person, shall of such so of the shall direct.” In if the verdict years, or integral part original penalty provision, Pope, the death amending original No statute act was held invalid. statute, was involved. in Pope not im- Jackson did is noted that decisions

It to tender of the court to right of pair the guilty or accept plea pro- nolo contendere accept or refuse Procedure. Federal Rules Criminal See vided in Rule S.E. 2d Spence, 274 N.C. at at 603. my opinion suggests may that Jackson have invali- majority opinion penalty provision than the death rather G.S. dated G.S. 15-162.1 provided accept punish- this view. G.S. 15.162.1 I cannot 14-17. plea a of imprisonment guilty when of first by life ment case, In such neither accepted. judge and was tendered murder power respect in any discretionary punishment. of jury had nor the authority provide Obviously, Assembly had for the the General by plea punishment imprisonment life upon of tender such invalidity perceive I whatever in that acceptance thereof. no statute. is what rendered valid statute invalid the impact of this death 14-17. G.S. 15-162.1 was based provision Chapter of G.S. on penalty 1953, repealed which all Laws of laws and 616, clauses Session in conflict therewith. laws in Jackson is considered are noted decisions which below.

Recent 517, it held King Cook, 211 So. 2d that Jackson did in Supreme Mississippi, drawing Court of apply. dis- Kidnapping the Mississippi- the Federal Statute and tinction between jurisdiction in plea, “A who enters a statute, said: defendant SPRING TERM 1969 327 .(cid:127)guilty is not penalty. assured that he will not receive the death Be- fore penalty imposed the death can be under Section 2217 in- terpreted entering Yates, guilty accused’s a plea, judge trial question type must submit the punishment a jury, impose which may either the death penalty or a life sentence.”

In Maxwell v. Bishop, Appeals 398 F. 2d 138, the Court of Eighth Circuit, after a discussion of the Arkansas said: statutes, “Thus, in contrast Kidnaping Act, Federal an Arkansas de- by fendant, entering plea capital a case, does not avoid by jury trial punishment. on the issue of The critical choice under the federal act which in Jackson, occasioned result is thus not present under the Arkansas statutes.”

It should be noted that North Carolina statutes make pro- no separate guilt vision for trials penalty as to and as to by the same juries. different applied Whether Jackson one several constitutional questions supra. considered Maxwell v. Bishop, Certiorari to re- Eighth view the decision Bishop, Circuit’s Maxwell v. supra, was granted 16, December U.S. L. ed. 2d 89 S. Ct. granting certiorari, Supreme 488. In Court the United States Questions its petition limited review to and 3 of the which read as follows: practice permitting Whether Arkansas’

“2. trial jury ab- discretion, solute uncontrolled standards directions of impose kind, violates the Due Process Clause of the Fourteenth Amendment? single-ver

“3. Whether Arkansas’ diet procedure, requires guilt punishment simultaneously to determine presenting mitigating between choose evidence on the maintaining privilege against punishment issue or self-incrimi- guilt issue, nation on the violates Fifth Fourteenth Amend- ments?”

Although my primarily I rest dissent on Jackson and Pope, the Supreme questions awaiting decision Court of the United supra, directly Bishop, in Maxwell v. States involve the validity Uncertainty proviso respect of our G.S. 14-17. validity of its decision in that should be removed case. It is noted that full Supreme by arguments were heard Court the United States U.S.L.W. 3330-3333. March, 1969. 37 my Summarizing views: committed and when arraigned,

When the crime was defendant was IN THE SUPREME COURT [27& Properties Club North Carolina penalty, under the sentenced, and the death tried our unenforceable. Under stat- was invalid and force, statutes then degree is death or punishment either utes, for murder the first penalty, only imprisonment. of the death Upon life invalidation my imprisonment. Consequently, permissible punishment life case and remand the is to vacate the death sentence vote imprison- judgment life superior pronouncement court for the ment. opinion.

SHARP, joins in J., PROPERTIES, CLUB INC. OF NORTH CAROLINA CORE BANKS STATE 19No. (Filed May 1969) — pleadings allegations has that condemnor 1. Eminent Domain 7—§ complied with statute Allegations by complied statutory pro- condemnor that it has requirements prerequisite land. cedural are a action to condemn — Department delegation power of Ad- 2. Eminent Domain 4—§ — part ministration national seashore authorization, Department specific legislative absence of power property Banks con- Administration has no veyance to condemn Outer for park. national seashore United States for a — power constitutional 1— and extent of 3. Eminent Domain nature § limitations right constitutions but is in- of eminent domain not conferred although sovereignty, its exercise limited the constitutional herent process payment just compensation prop- requirements and due erty condemned. legislative pow- Law 7— Constitutional 4. Eminent Domain § — domain ers eminent — power governmental into three branches ex- Under our division (cid:127)— ecutive, judicial legislative legislative can authorize the power prescribe domain manner of its of eminent exercise use. —(cid:127) power legislature nature and extent of 4— 5. Eminent Domain §§ legis- until domain lies dormant the State eminent occasion, statute, points mode, lature, power out the confers agencies its exercise. conditions

Case Details

Case Name: State v. Atkinson

Court Name: Supreme Court of North Carolina

Date Published: May 14, 1969

Citation: 167 S.E.2d 241

Docket Number: 22

Court Abbreviation: N.C.