*1 IN THE COURT. SUPREME Pugh. State Jr., plaintiff, appellee. Purrington, Wharton, L. & A. Wharton appellant. defendant, Haworth & Reese Roberson, the matters to which After careful consideration Pek Cukiam. appear. Hence error is not made relate, error assignments which'appeal is taken is judgment from Affirmed. CLARENCE PUGH.
STATE v. May, 1959.) (Filed 20 29— 114: Homicide § Law Criminal § prejudicial prosecution it is error in the first for murder In a discretionary court, giving instructions correct after imprisonment, further on manner view the contentions imprison- jury should not recommend committed the offense 14-17. ment. G.S. J., concurring. Denny, dissenting.
Higgins,
Pakker, J., concurs dissent.
Appeal September 1958 Term Mallard, J., defendant of Lee. charging defendant of indictment prosecution a bill
Criminal degree of one Charles Otis in the first Pugh with murder Clarence Nodine. guilty.
Plea: Not evidence—the Superior the State offered Upon to the was submitted none—(cid:127) and the case offering defendant charge of the court. under say that the said Clarence Jurors, upon oath -their Verdict: ¡and and form as felony in the manner guilty of
Pugh bil-1of indictment. provided by law. gas of lethal inhalation Judgment: Death ap- appeal, excepts gives notice ¡objects Defendant ¡assigns error, permitted Supreme Court, and peals bond, pauperis. making is, without appeal forma TERM, 1959. N.O.] Pugh. State *2 Attorney Seawell, Attorney Assistant L. General Claude Love the State. for Harrington, Gavin, defendant, ap- E. L. J. Allen W. Gavin H. pellant. appeal J. The on re presented record of case here C. WiNBORNE, which, (authority of veals error -in the the court for under a new be had. Oakes, S. trial must Denny, See also 105 S.E. 2d S. v. and cases cited. connection, Chapter this as amended 1 of 14-17, G.S. Section Carolina, provides “A murder 1949 Session North that Laws im- perpetrated by poison, lying wait, which be means of in shall starving, by any willful, other de- prisonment, torture, or kind of premeditated liberate or shall in the killing, which committed be any arson, robbery, perpetration attempt perpetrate, rape, or bur- felony, or shall be in first de- glary other be deemed to 'the gree punishedi provided be with death: the time of and shall recommend, in rendering open court, its verdict shall so prison, life in punishment imprisonment the State’s jury. instruct All other binds of murder shall court shall so degree, punished,” be deemed murder the second shall etc. be amendment, and has been the sub- embraces ject of in several discussion cases. complaint error of which is made Oakes, supra, And as S. the trial judge It sub-
arises in this manner. seems guilty where of murder in the first a verdict accord that stantial jury, it -been the unbridled dis- degree shall have reached the «rime shall cretionary -light to recommend prison, instructing life in imprisonment for the State’s qualifications no to and or limi- no attached that there conditions -recommend, to so upon keep- imposed tations 14-17, as -amended 1 of Section ing provisions with the G.S. Chapter Denny, of North Carolina. See Session 299 of 1949 Laws cited. supra, and cases case, supra, quoting from Denny in the S. v. Mc
And stated “It is 630, 65 incumbent Millan, 233 N.C. right. -has substantive jury. this the defendant so instruct instruction, suggestion charge to the causes for Therefore, -as ought error sufficient set could Contrary this, made.” to- no recommendation where a verdict
aside inadvertently, doubt, stating no ease in the instant “The declared to that: con- the State State contentions THE IN SUPREME COURT. Pugii. tends that robbing him, defendant killed Mr. Nodine in and that this your guilty verdict should be murder in the first without any recommendation, is, punishment for life.” And the fatally contends this crime denotes a mind bent “State mischief, that a man who kill fashion, would a man this killed, fashion in which Mr. Nodine Charles and who was Otis riding country then to continue in his automobile, able around the in his sleeping though nothing happened, had is a automobile very person. cool calculated And the State contends there are justify you no in this exercising circumstances case which would your in favor of discretion .sentence for defendant. The State your conitendsthat verdict should be of murder in the first de- *3 gree.” properly excepts quoted language. Defendant Attorney
And the General in brief filed concedes distinguish foregoing portion charge unable to by this Oakes, supra,— that condemned Court the case of v. an S. error in the w-ill note motu, of which the take ex mero Oakes, supra, citing 121, McCoy, S. S. v. 236 N.C. 71 S.E. 921.
Furthermore, considering the evidence offered in the the State light State, appears most favorable sufficient to withstand judgment motion for of nonsuit—(cid:127) to the denial of which defendant -as excepts. assignments
Since there is to be a retrial other of error need no express consideration. pointed out, error there be a will
For New Trial. guilty J., Concurring: Prior to 1941 a verdict DeNNY, — — murder, rape, burglary or arson the four crimes meant except degree burglary. mandatory sentence, death first Carolina, 1889,
Chapter of North Session of section 3 434, Laws provided: 4641, 15-171, now “That thereof, codified later as CS G.S. burglary of indictment is in the charged when the in the bill crime guilty burglary degree, jury may first render a verdict they proper so to do.” degree the second if deem it 604, 278, 12 Johnson, In the 218 N.C. S.E. decided case of S. v. 1940, 20 December this Court held at the Fall Term 1940 and filed jury might not authorize an instruction that CS 4641 did degree in its discretion, in the burglary render a verdict of second Barnhill, J., J., J., later irrespective Stacy, evidence. C. C. dissenting opinions. J., vigorous wrote now C. each Winborne, J., State v. Push.
Stacy, previous C. said: “Our decisions effect, are to the on an burglary indictment for in the first degree, the is not defendant entitled as a matter of to have the case submitted to the ¡the charge of burglary in degree second unless there is evi support dence to the milder verdict. CS 4640 Johnston, 119 N.C. S. 883, 163; 26 S.E. S. Cox, 357, N.C. 358; Morris, S. v. 215 N.C. 552, 2d 554. This is saying, far from however, that in such case, jury may not render a burglary verdict of in the degree second ‘if they deem proper so to do.’ Both legislative expressed will as statute, 4641, pertinent CS subject on the contrary. are to the Alston, 666, S. v. 18 S.E. 692; Fleming, S.E. 131.” The General Assembly of North Carolina at its very first oppor- tunity Chapter enacted 215 of the Public Laws of 1941. This act added the following provisos burglary to CS statute, and recommend, CS the arson “Provided, statute: if the shall so for life in the State’s Prison.”
At session, Assembly same enacted Chapter 7 of Public Laws of amending 4641 to CS read as follows: “When t'he crime in the bill of burglary indictment in the first degree the jury, upon finding of facts sufficient to constitute burglary degree statute, may as defined elect to render verdict of of burglary in the they second deem it proper so to do. The in his charge so jury.” shall instruct the 14-52, CS 4233 became and CS 4238 G.S. became 14- G.S. *4 language the including provisos the remaining same, and the CS 4641 became G.S. 15-171. Spring
At the Term of Mathis, this Court was decided. The defendant had been convicted of degree first burglary and appeal, sentenced to death. On defend the ant contended judge the trial instructing erred in not jury the in respect to right the of the under 14-52 to return G.S. a verdict guilty burglary of of degree in the first and recommend in con nection therewith therefor imprisonment for life in the State’s Winborne, C.J., Prison. now in speaking for the proviso said: “The in the statute was added the General (P.L. 215). Assembly of Before the it, Ch. enactment of guilty of burglary a verdict of in the first degree death sentence mandatory. it, But since the returning enactment of when a in guilty burglary degree verdict of of in the first recommends im prisonment life, penalty thereby for is eliminated, the death and imprisonment mandatory. sentence of life is Thus a substantial IN THE SUPREME COURT. v. Pusi-i. charged «the in in with created 14-52 favor of one G.S. burglary duty degree. case, in the first in such it is the And explain judge provisions under and tire of G.S. 1-180 'to declare the arising law thereon.’
“Moreover, provides 15-171 ‘where the crime in G.S. the burglary degree jury, up'on bill of indictment in 'the the first degree in first finding 'burglary of facts sufficient to constitute burg of of statute, miay defined to render a verdict elect lary do,’ if it so to and ‘the degree they proper second deem jury.’ charge Surles, ante, in his shall so instruct See S.
“Therefore, two 14-52 and taking together, statutes G.S. G.S. burglary in a in the first 15-171, when case in which the de- gree beyond and doubt finds from the evidence reasonable constituting burglary degree, one of three verdicts facts first (1) may Guilty burglary degree, in the first which be returned. of (2) mandatory sentence; Guilty burglary of carries a death life, of degree, first recommendation (3) ‘deem imprisonment; calls for a sentence to do,’ Guilty degree, in -the for which proper burglary so to second may imprisonment, imprisonment for a term sentence years judge, in accordance with the discretion all statutes.” study Assembly of North Carolina created the General making study submitting recom- purpose
commission Assembly for the im- of the General 1949 Session mendations to justice in the State of North Car- provement of the administration study pursuant Among the olina. recommendations made mercy by following: propose “We that a carry Only a life sentence. automatically with it cases capital mandatory penalty we death be- have the three other states now juries definitely Quite frequently, harmful. retention will be its lieve because, all rape refuse to convict defendant, although guilty, circumstances, they do not believe hardly are returned The result is that verdicts suffer death. should respect already effect harmony proposal with evidence. Our testimony There is much burglary the crimes arson. now law can in such We think proved beneficial eases. Government, pub- Popular to include all crimes.” broadened *5 Carolina, Government, University of North of lished the Institute Carolina, January issue 1949. North Chapel Hill, the recommendation of Assembly 1949, following The Laws Chapter of the Session of commission, enacted 299 study 283 Pogh. 1949, providing that in all oases it should be in the discretion jury imprisonment. recommend life proviso The reads follows: “Provided, if at the of rendering its in 'Open time verdict court, jury shall so recommend, punishment imprison- ment for life in 'the State’s prison, and the court 'shall so instruct jury.” The proviso identical part was enacted as a 14-17, relating G.S. n tomurder in the degree; 14-21, relating rape G.S. or the carnal knowledge any age female child under the years; twelve 14-52, G.S. relating 'burglary degree; the first and of G.S. 14-58, relating to arson. 15-171 repealed by G.S. 100, Ch. Ses- sion Laws of 1953.
Consequently, present time, any capital jury case the the “unbridled discretion” to punishment recommend that the be im- prisonment for life in Prison, the State’s “.and the court shall so in- jury.” struct the 1949 has been construed in the following cases in the
manner hereinafter indicated.
In S. v. McMillan, 212, 65 2d S.E. the trial instructed the they might to the recommend life im effect prisonment if the felt the facts and “under circumstances of the alleged crime to have been defendant, they committed justified warranted and in making that recommendation.” Winborne, C.J., now in speaking for the patent Court said: “It -is ,to puipose sole give of the act all cases where a ver dict of murder in the first reached, shall have been right for the crime shall be prison. (Compare for life in the State’s S. Shackleford, 825.) N.C. 2d No to, S.E. .are attached conditions qualifications upon, no imposed, or limitations are discretionary to .so It is right. recommend. an unbridled And it jury. this, incumbent so In the court to instruct the de any fendant has right. Therefore, instruction, charge -a substantive suggestion ought could or causes which where recommend is error sufficient to set -aside a verdict no recom mendation is made.” 684, among the case of Marsh, S. v. N.C. may,
other things, charged: below “You reason and your recommendation, you within de- discretion add to so, life, sire to event dis- imprisoned do that he position upheld charge. will This Court of the case.” court instructed Simmons,
284 IN THE SUPREME COURT.
State v. iPusi-i. “ * * * jury: you guilty should return verdict murder in -a degree, your duty the first would be to consider not it whether or 'statute, you your duty under desire 'and that feel to recom- th)at punishment mend of the imprisonment defendant shall be (ferial prison.” in A granted. for life the State’s new was In the same 72 im- case, 340, 743, respect 236 2d with to life N.C. S.E. prisonment again was held to be erroneous. 222, 664, pri- the ease of 238 2d Dockery, S. N.C. 77 S.E. v. argument in his to prosecutor, making jury, said: “There is
vate argu- life thing imprisonment no such in North Carolina.” This part plea guilty ment was as a of counsel’s verdict of degree punishment without recommendation that imprisonment. support reason be life advanced counsel im- argument that, was where sentences are for life this cases commutation; that prisonment, petitions 'are filed the commuta- persons imprisonment thus sentenced to life allowedi tions are new finally paroled go This Court ordered a allowed free. trial. consistently exception adhered to its has without
This Court respect to the “unbridled discretion” imprisonment for life the State’s Prison recommendations make capital offense, guilty was found of a where a defendant in cases supra. Conner, S. v. McMillan, 468, v. See laid down S. 106, 789; Adams, 89 S.E. 2d Carter, 243 N.C. S. v. 584; 85 2d v. S.E. S. 245 383; Cook, 96 S.E. 2d S.E. 2d S. v. N.C. 90 N.C. 243 249; 2d 247 Bunton, 100 S. v. McAfee, N.C. 842; S. S.E. 446; 454; Denny, N.C. S.E. 510, 101 S. N.C. 2d 206. Oakes, previous appeals since in twelve has been involved As this my impression 1949, it it has has been enacted in statute soli- the Court that neither a of the members of been the consensus any right argue prosecutor or contend private citor nor capi- in a not, and circumstances under facts should “unbridled discretion” withhold and refuse exercise case, tal Assembly. In exercise by the granted to them expressly any imprisonment they may recommend of such discretion follows, therefore, It error /all. for no reason at reason or that the verdict give as a contention State for the 'any in the first without guilty -murder should shall so? must be «that in Why It conceded Prison. the State’s justify finding is -sufficientto evidence case if Pugh. beyond a -reasonable .that .the defendant doubt o-f the -crime *7 and charged, finds, the so then he must death unless in suffer the discretion of the it makes the recommendation for life im- prisonment >asauthorized law. From the defendant’s standpoint, such is right not matter of -in.any sense, a but on exer- cise grace, -placed exclusively of unconditionally -and the within dis- cretion of the and no one else. A solicitor private prosecutor or a has as much latitude he has
ever had in making legitimate .argument for a capi- conviction in a he case, tal but when has his tried .case and argument made his to jury, the properly developed -and his evidence, tending to show the guilt beyond of the defendant a reasonable doubt of capital the charged, offense it is no responsibility official concern -or of his whether right not the exercises the of discretion to recommend life im- prisonment in the State’s Prison. history legislation
In view of the
the
of
involved and the recom-
-study
of
apparent
juries
the
commission in
it is
mendations
that
bringing
were
-in-verdicts of murder in the second
many
too
oases in which the evidence warranted a
degree.
conviction of first
justice
In an
the
o-f
improve
effort
administration
in that respect,
right
unconditional
-State’s
jury, -although
granted
Prison was
the evidence warranted -a
mandatory
theretofore carried a
conviction that had
-sentence of
fact,
comes to this: The
it all
such cases has -been
-death.
power
-or
grace
entrusted with the State’s conscience
to extend
be
out as between
respecibto
punishment to meted
and death
-—
not the
nor
the solicitor.
cases.
why this Court should adhere
There are other reasons
for
its
questions
now before us. It
mer
-said in 14
decisions
Am.
“
*
* *
seq.:
Jur., Courts,
66, page 287, et
It
section
has been said
will
last resort
a state
not overrule
-one of its
construing
legislature
statute
prior
-a
where
has
held
modifying
since such -decision without
several sessions
amending
justly
may
it
claimed
the legislature
because
statute
decision,
therefore .a fair
is presented
and
case
acquiesced
doctrine
stare decisis.”
application
Commissioners,
new trial Attorney difficulty is the fact the in this case easy. Added is not here between the distinguish he unable confesses v. Push. challenged and similar changes have .past been heldi error in Only this Court. firm and settled the for- conviction mer decisions .are particular here involved induces erroneous objection. me to my record question amendment was added to a section of the statute .in entitled: “MURDER IN THE FIRST AND SECOND DEGREE DEFINED; PUNISHMENT.” Before the amendment, statute provided that murder in the first .punished be “shall death.” The amendment added, “Provided, if at the time of render- ing its open court, verdict punish- shall so recommend, ment for life in the prison, State’s jury.” court shall so instruct the
The recommendation must be time, part made By authorizing and empowering verdict. to determine whether the imprisonment, shall be death or life I think contemplated upon determination would made be basis of the evidence in the case full passing and after its consideration. guilt on the degree thereof, decision be must applicable the evidence and The amendment makes law. provision no enlarge restrict or to scope inquiry. Certainly of the provi fails to make amendment hearing competent sion for not otherwise the general evidence on guilt support issue of This innocence. failure lends view evidence, must base its recommendation -on the surely it was intended that the should based something discretion, course, other than whim. The but surely governed by the manner of its exercise should the evidence. *9 quotation 32, Review, p. L. Pertinent here is a from Vol. N. C. 439: making in first amendment, 1949 “The discretionary give' jury has been to construed the an cases jurors’ mitigation absolute; power ‘unbridled discretion.’ The is jurors proceed any assumption the may apparently it from which make; any procedural implications wish .as to the to and doubt dispelled glance this will be a v. McMillan and State v. State judges two cases in which the reversed trial Simmons, recent Court — — by jurors the suggested who even the faintest inference deciding to ‘facts of a ©ase should look the and circumstances’ confined, totally is punishment. Thus, the the trial defendant’s may perforce totally unconfined; it roam at will in jury is selecting against for or death.” reasons applicable was made
A in the same words .as here involved Shackleford, 232 rape. to In the case of State v. N.C. a conviction for 288 IN THE SUPREME COURT. Pugit.
State 825, correctly 299, present 59 S.E. 2d the Chief Justice I think in- terpreted meaning “However, is of the Statute: clear Assembly reading attempt that the did not amendment to change constituting rape, malee in the the crime of elements or applicable charge rape. in the rules of in the trial on a evidence Rather, patent is to the purpose give is the sole act jury right case to render a verdict of on evidence of rape, imprisonment, though with even recommendation of life jury may rape find facts sufficient constitute defined added) (emphasis statute.” 212, the McMillan, ease of 65 S.E. 2d State N.C. right power, h'ad that the had (murder discretion, accompany degree) its in the verdict imprisonment
with recommendation if the felt that the is warranted the facts circumstances recommendation. “That you gentlemen, your matter to be exercised own discretion.” “Therefore, any the instruction erroneous and .said: This Court held instruction, the causes for suggestion as to which is sufficient to aside a ought could or error set verdict is In the case the no recommendation made.” where Shackleford held evidence in the case to Court had the rape imprisonment. recommendation of render verdict any instruction, charge held that the McMillan case ought recommend life suggestion as to causes for error. 2d Dockery, N.C. S.E. In the case of State prosecution argument against a recom private counsel for -the imprisonment, cases where sentences mendation of life said: "... commutation; filed for petitions are imprisonment, are for life persons thus to life sentenced allowed commutations finally go argu The paroled and allowed free.” imprisonment are based on matters dehors the improper to be because ment held applicable correctly stated the rule: “It Court, however, This record. given should be to counsel recognized latitude generally wide jury. Bowen, making arguments State v. their so, Even 466; Little, inj into may arguments ect their go counsel not outside record plain argu the evidence.” inference facts not included proper the evi based on on the ment dence. *10 Oakes, v. 249 N.C. S.E. 2d
In the case of State said, inferentially, time has is error for the the first Court for 1959. Pugit. State State to argue in case that the evidence does not warrant a recommendation imprisonment. of life In that case the .trial court charged: says “The State your and contends that verdict should be murder in the first degree; your .that stop verdict should there you and that should not recommend his punishment imprison- ment for life.” If it is error for the to state the contention, it must be error for the solicitor to make it. If .argue cannot State the question, the defense should not. concurring opinion The in this case agrees with this view. I complaint have no with the statement that the gives jury discretion. But the should hear and the argument on evidence the evidence, and the court’s charge before exercising the discretion. Discretion not license. The Court is now holding in effect that counsel must not contaminate the .any argument as to the bearing the evidence should have on the The Court thus building recommendation. around duty of passing on of life a barricade and .put has in effect up sign, quarantine. “Under Discussion forbidden.” My view differs from the respect. Court in this I think the should hear the evidence, proper argument thereon, based charge of the fairly court reviewing the upon evidence, contentions and then exercise its discretion. It seems to be majority view that the should hear the argument evidence but .should not hear analysis of the evidence and the trial must not state the con- tentions of arising counsel on the evidence. The trouble arisen, think, I picturesque because of a catchy, but inaccurate and un- fortunate .statement has unbridled Discre- discretion. Unbridled, judgment tion involves the exercise of based facts. con- fancy. duct based on whim or comparison foregoing quotations
From a State v. meaning State v. McMillan as to of the proviso, Shackleford ¡as Dockery present concurring and from opinion State scope argument, appears there is not much application to call for the of stare decisis. material aspects conflicting. argument .aire “Much said on favor of adhering to this decision, recent but the doctrine of stare decisis is strictness, especially not be observed with inflexible where no rule property involved, employed and it should never be perpetuate Spitzer Commissioners, an error.” 123 S.E. I Oakes, supra, agree
In the case of State v. that a new trial was objection required because admission over defendant’s of prior agree the deceased in a case. I also affidavit newa required Denny, trial was S.E. 2d 10—250 *11 THE COURT. IN SUPREME
Bolton v. Harrison. beginning at the of the solicitor because the announcement trial iand the form of verdict. Mc- stated, I think the decision
For the herein reasons per- error should not be and supra, was erroneous Millan, case, I vote no error. petuated. In this say j dissenting he oins in this me to Parker, J., has authorized opinion. BOLTON; MARTHA C.
RACHEL C. BOLTON RICHARD husband, and DAVIS; C. MURPHREY DAVIS and SIDNEY CARRIE husband, and MURPHREY; husband, G. LANE W. R. ESTELLE husband, and LANE; MILTON JOHN husband, ROBERTS GEORGE DOROTHY and SULLIVAN; ROBERTS; CLYDE SULLIVAN husband, MIGNON C. and COLEY, COLEY; COLEY, and FRANK FAYE J. W. JR. and wife, COLEY, by A. MRS. G. BETTIE MRS. Minor, Friend, his Next HARRISON, Widow; (DORIS) LYDIA HARRISON wife, ALFORD and HARRISON; HARRISON; MILDRED FRANK HARRISON wife, and HARRISON; LEE DAVID DORIS wife, BERNARD HARRISON HARRISON, Minor; and HARR JOYCE LEROY HARRISON wife, and HARRISON, Minor; ISON; HARRISON, FAYE Minor; DOUGLAS HUX; H. ELIZABETH CLIFTON husband, MARGARET H. HUX INGHAM, RUTH LAND PAUL VAN VAN LANDIN GHAM husband, JOE LOVEGROVE. LOVEGROVE husband, (Filed May, 1959.) Judgments § 1. 18— showing legal presumption sheriff's return service raises Tie legal by service, presumption valid and stands unless such is rebutted .evidence motion cause. Judgments 2. 271b— § remedy judgment service, shows to set Where the record motion, by want service the cause. aside Mortgages 46— 31h: Parties Wills § §4%: § by testator, mortgage A of a executed entered decree foreclosure parties, including an in which heirs the life tenant action all are ,of quo posse, are in esse and who locus remaindermen duly by guardian litem, ¡represented ad anid decree of confirmation entered, 'binding panties, including a later .born remainder- on the by class, purchaser represented man members his such instrument title under foreclosure of the executed testator sale takes provisions under the of the will. of claims asserted free Mortgages 12: 39e: Trusts 4b— § 4. Executors and Administrators § § will not be set aside fraud Decree of confirmation of foreclosure inadequacy purchase price. merely on evidence mortgage A executed testator was foreclosed action