By аssignments of error 5 and 6, predicated upon exceptions 5 and 6, defendant challenges the correctness of these portions of the charge of the court to the jury:
“Under the law of the State at this time, the court instructs you that if you return a verdict of guilty of murder in thе first degree as charged in the bill of indictment against the defendant, then you have the right and thе power in the exercise of your discretion to accompany that verdict with a recommendation of life imprisonment for the defendant, and the statute giving that right and authоrity and discretion to the jury, also instructs or provides that it is the duty of the court to instruct the jury that thеy do have the authority, the right and the power to accompany their verdict of first dеgree murder with a recommendation of that sort if they feel that under the facts and cirсumstances of the crime alleged to have been committed by the defendant, they are warranted and justified in making that recommendation. That is a matter to be exercised by you gentlemen, in your own discretion”; and
“If the State has satisfied you upon the evidence beyond a reasonable doubt of the guilt of the defendant of murder in the first degree, it is your duty to so find. If you do so find and in the exercise of your discretion you think it proper to do so, you are authorized to accompany that verdict with the recommendation of lifе imprisonment for the defendant; if you do not so feel under the facts and circumstances, why then of course it is a matter that addresses itself to you as to whether or not you will makе that recommendation.”
Defendant contends, and properly so, we hold, that these instructions are erroneous, in that they inveigh against the provisions of the statute, G.S. 14-17, as amended by 1949 Session Laws of North Carolina, Chapter 299, Section 1, pertaining to punishment for murder in the first degree. This Section, as so amended, reads as follows: “A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberatе and premeditated killing, or which shall be committed in the perpetration or attempt to perper trate, any arson, rape, robbery, burglary or other felony, shall be dеemed to be murder in the first degree and shall be punished with death: Provided, if at the time of rendering its verdict in open court the jury shall so recommend, the punishment shall be imprisonment for lifе in the state’s prison, and the court shall so instruct the jury.” The proviso embraces the 1949 amendment.
The language of this amendment stands in bold relief. It is plain and free from ambiguity and expresses a single, definite and sensible meaning, —a meaning which under the settled law of this State is conclusively presumed to be the one intended by the Legislature.
Asbury v. Albe-
*633
marle,
It is patent that tbe sole purpose of tbe act is to give to tbe jury in all cases where a verdict of guilty of murder in tbе first degree shall have been reached, tbe right to recommend that tbe punishment for tbе crime shall be imprisonment for life in tbe State’s prison. (Compare
S. v. Shackleford,
In the light of these principles, we are of opinion and hold that the clause in the paragraph of the charge first quoted above, reading “if they feel that under the facts and circumstances of the crime allеged to have been committed by the defendant, they are warranted and justified in making that recommendation,” and the phrase in the other quoted paragraph reading “under the facts and circumstances,” impose unauthorized restrictions upon the discretion vested in the jury.
It may be noted that we are here dealing with a different factual situation from thаt involved in
S. v. Johnson,
The Attorney-General for the State, and counsel for defendant cite decisions of thе Supreme Court of the United States, and of the courts of last resort in other States treаting the subject of recommendation of mercy by a jury, and the effect of such recommendation on question of punishment of the accused. They are of interest, and persuasive, but not controlling here. For annotations on the subject, see
Eor error pointed out, it is ordered that there be a
New trial.