*1 IN THE COURT SUPREME Spence v. [17] Although not pertinent to decision, we deem it appropriate judg for note consolidated to that at defendant’s first trial the court larceny entering breaking ment the counts of felonious was permissible, but the court pronounced one sentence. This was greatest gross in excess judgment not a authorized “to enter .” . statutory any the counts. . penalty applicable to Austin, In this 548, 549, instance, S.E. 2d 926. 241 N.C. 14-72; years, 14-54, of ten G.S. so penalty was maximum not been va eight-year excess was void. Had defendant’s sentence discharge been to his writ of cated, he would have entitled lawfully time court could he had served the corpus habeas when petition upon either for certiorari or impose. meantime, In judgment would have vacated and remanded corpus, we habeas given with instructions that defendant be credit proper sentence all time served. purpose impose his sentence of years, effected 10-18 To have imposеd separate judge first should have consecutive sentences years upon each count. The consolidated an of 5-9 maximum is, in this case, point pro- sentence inadvertence. judge did not exceed second the maximum by the which the nounced impose. attempted judge Affirmed. SPENCE v. JOSEPH EUGENE CAROLINA
STATE OF NORTH WILLIAMS O’NEIL GLENNWOOD No. 658 1968) (Filed December Jury to unbiased 1. 5—§ present opportunity party have the his trial must Each to a criminal jury. unbiased to a fair and cause challenge purpose to venireman Jury 7— § guarantee challenge not purpose be a venireman should any against accused, from only but also bias from freedom prosecution. prejudice his 135; Jury 7— Law Criminal § § Law § 3. Constitutional — opposed capital punishment of veniremen exclusion Witherspoon Illinois, the United States of death carried out sentence that a held excluding it chosen veniremen or recommended FALL TERM 1968 *2 penalty simply they general objections cause to tbe death because voiced expressed religious scruples infliction. conscientious or its 29; 135; Jury death 4. Constitutional 7— Law Criminal Law § § § — punish- jurors opposed capital imposed exclusion to — guilt punishment ment trial as to new and degree in murder a trial which defendants were convicted of first death, permitting and challenge the trial erred in sentenced court jurors general objections prospective for cause who voiced expressed religious scruples against the its ground, conscientious or infliction, defendants, having aptly objected to the and to have on this are entitled to the verdicts set aside a new have penalty. trial as to both — 29; Jury Law 1— unconstitutional (cid:127)5. Constitutional § § set verdict aside Where the was not in trial rights, selected accordance with defendants’ constitutional the verdicts cannot stand but must be set aside. 126; <6. Criminal Law Constitutional Law 29— criminal verdict § § Only jury, Court, may and not a State or Federal return a criminal verdict. 29, caрital pun- 7- Criminal Law Law 30— Constitutional § §§ — ishment v. decision U. S. Jackson Peele, in It was held v. N.C. that United States Jack- son, authority capital holding is not not be under circumstances in North Carolina. Faekee, C.J., concurring. J., concurring dissenting
Bobbitt, part part. J., joins Bobbitt,
Sharp, J. Joseph Eugene Spence The defendants and Glennwood O’Neil 'Williams Superior were indicted and tried Court of Guiufoed County (July Session) charges 1966 Criminal on murder degree. charged the first From verdicts of and sentences n pronounced appealed. thereon, they review, Court, After full unanimous opinion, held that n error was not committed in the trial. The verdicts judgments upheld. were defendants obtained from the Court of the United a writ of certiorari to review our petition decision. The alleged
the writ court denied the defendants’ constitutional rights fair trials the exclusion of veniremen who stated in voir opposed punishment. dire examinations us, July 17, 1968, order to dated per curiam contained following: IN THE SUPREME COURT judgments . . The of the courts below are vacated and the light cases Witherspoon remanded for reconsideration in the Illinois, No. decided June 1968.” arguments. We reheard the cases both on briefs on oral Bruton, Attorney T. General, Harry McGalliard, W. W. Deputy Attorney General, the State.
George Spence. W. Gordon for defendant Floyd Jack W. Williams. for defendant J. Higgins, *3 Supreme directive from the United re- Court of the
quires us to
upholding
jury’s
reconsider our former decision
ver-
dicts and
Spence
Williams,
the Court’s sentences. State v.
271
23,
record,
N.C.
The record of the trial contains
voir
dire examinations of 11
rejected
varying degrees
opposition
veniremen
because of their
to
unnecеssary
capital punishment.
attempt
We deem it
any analysis
divergent
stipulation
because of
of these
views
in the record:
“A total of 150 veniremen were examined
dire;
on voir
79 of
successfully challenged
those examined were
cause
opposition
their stated
capital punishment.”
because of
Carolina
[1]
The trial
case law. The basic
jury
was selected in the manner
concept
has been that
approved
each
by North
party
opportunity
present
have
his cause to a fair
and unbiased
any juror
may challenge for cause
jury.
prejudiced
He
who is
against
juror
prejudiced
to select a
him. His
in his favor, but to
against him.
reject
prejudiced
Peele,
State v.
one
274
N.C.
161
Spence, 568;
State v.
N.C.
Did the trial court commit permitting error prosecution to remove from the venire those who held the views on pun- ishment disclosed answering the record? In this question, the di- requires rective us apply Witherspoon tests. Witherspoon was tried Cooke County, Illinois for
murder. The found him guilty and fixed his at death. The selected accordanсe with the Illinois statute provided: which
“In trials for murder it shall be a challenge cause for any juror shall, being examined, who on state that he has conscientious scruples against capital punishment, or that opposed he is same.” Court of Illinois Witherspoon’s denied application for
a new trial ground his stated that the stacked *4 by him permitting the challenge State to expressed for cause all who opposition scruples against capital to or punishment. [3] Witherspoon’s application for certiorari was United States. opinion allowed filed July 3, impact
1968. Because of the the decision will cap have on trials for State, quote ital felonies this we extensively opinion from the and the footnotes thereto:
“The issue us before is a narrow one. It does not involve the right prosecution challenge to for cause prospective those jurors who state that their reservations capital punish- about prevent ment them making would from an impartial decision guilt. as to the defendant’s Nor does it involve the as- State’s sertion of a to exclude from jury capital case say they who that could never impose those vote the death they penalty or that would even refuse to consider imposition its case before them. For the State of Illinois did stop prosecution there, but authorized to exclude as well all who IN THE COURT SUPREME [274-
State all who- said they opposed capital that against inflict- they scruples indicated that had conscientious ing it.
[*] [*] [*] jurors If who only prospective had those State excluded re- stated in not even consider they advance of trial that would resulting jury turning argue death, verdict of it could simply swept But when it respect penalty. ‘neutral’ with religious scruples expressed from the all who conscientious or against capital opposed principle, it in punishment and all who neutrality. crossed the line of . . . State # -K* A man than who opposes penalty, who the death no less one it, discretionary judgment can entrusted favors make the obey him and can thus the oath he takes as a juror. But a from which all such men have been excluded perform cannot the task demanded of it. . . .” following to the are the footnotes: Attached Court’s The most that can demanded of a venireman “. . . be regard willing penalties pro- is that all of the to consider he be irrevocably committed, and that law, vided state he not be against begun, before the trial has to vote might emerge ini regardless of the facts and circumstances that proceedings. . . . the course nothing say today repeat, however, that we bears the' We power of a to execute a defendant sentenced to death only veniremen from which the who were fact ex- (1) unmistakably cause were those who made clear cluded for automatically imposition would vote regard any might punishment without evidence that (2) developed them, at the trial the case before that- prevent would attitude toward the death them from their guilt. making impartial decision as to the defendant’s an Nor validity any in this case affect the the decision sentence- does today’s Nor, finally, holding death. does other than one of render sentence, conviction, opposed this or invalid *5 other case. amicus suggestion, advanced in an have considered the
We 24 on behalf curice brief Illinois, filed that we application ‘give prospective only any new constitu- should FALL TERM 1968 ruling tional in an since a dictum area,’ particularly challeng practice decision of this approved Court ing jurors scruples expressed cause those who ‘conscientious regard Logan to the infliction of the death for crime.’ Logan States, clear, United we think it U.S. 298. But employed here notwithstanding, jury-selection that the standards necessarily very integrity prоcess’ undermined ‘the of the . . . petitioner’s that decided the fate, Walker, see Linkletter v. 618, 639,
U.S. and we have that neither the reliance concluded of law enforcement officials, Shott, cf. Tehan v. 382 U.S. Jersey, 719, 731, Johnson v. New nor impact holding
of a retroactive on the of justice, administration cf. Denno, Stovall v. 293, 300, warrants decision fully application holding retroactive of the we announce today.”
The Court concludes:
“. . . of death cannot be Specifically, hold that a sentence we carried it was out or recommended simply they chosen by excluding veniremen for cause because general objections expressed voiced con- to the religious scruples against scientious or its infliction. . . .” stipulation certain voir dire examinations force [4]. challenged successfully us to conclude that veniremen were prosecution ground opposed capital pun scruples against in religious ishment and had or consсientious its A laid down in fliction. so selected did not meet the test With “light” entitled to their erspoon. In its the defendants were have challenge challenge jury sustained. The was made in due time to the are entitled to the ver and was disallowed. The defendants have dicts set aside. suggestions (1) rejected that: under
We have considered (2) aside; set Witherspoon only the verdicts should not be (3) eliminated; penalty should be cases should be remanded County imposition for the life Superior of Guilford Court sentences. imprisonment of the United States has set aside
[5, 6] legal pass composition on the judgments. are directed to We degree murder, for first de jury. The indictments guilty, by Witherspoon not disturbed of not are pleas fendants’ n —(cid:127) — authority. charged If the verdicts are other only judgment Superior which the stand, Court has permitted Having is a of death. concluded enter the trial authority *6 IN THE SUPREME COURT Spence
State
jury was not
the defendants’ constitu-
selected
accordance with
tional
verdicts
rights, as set out in
we conclude the
Witherspoon,
They
done,
cannot
the defend-
stand.
must be set aside. When that is
again
charged
ants
first
stand
before the court
with murder
degree.
pleas
Their
Neither the
of not
raise
issues.
State
may
Only
nor Federal
enter
Courts are authorized to
verdicts.
Louisiana,
return a verdict. Duncan v.
391 U.S.
“The to indict the defendant for rape 14-21, under which offense, upon G.S. offense conviction, except by death that should punishable the defendant enter a guilty under G.S. 15-162.1 and plea have such accepted defendant thereby . . . could by the State avoid the risk of that both penalty . . . G.S. 14-21 and a death G.S. 15-162.1 are unconstitutional. together itself or That 15-162 construed with G.S. 14-21 is unconstitutional and G.S. for the reason that
15-162.1 an compels response affirmative G.S. 15-162 the risk of the maintaining upon arraignment one’s silence avoided. is to be
Wherbfoee, prays quashed defendant the indictment be the reasons set forth above.” quash grounds the motion to on all alleged. denied Exceptions took 3 and 4. The defendant’s brief The defendant question involved: “1. Did the listed Court err fail- quash ing defendant’s motion to the indictment for the rea- allow FALL TERM 1968 son that G.S. 14-21 is No. by Exception unconstitutional as shown 4, R. 20?” Three other questions brief. One- were discussed half of the defendant’s brief in the Peele case was devoted to *7 Question discussion of No. 1 and the basis the discussion was the ruling of Court of in the United States Jackson. It must be remembered that in order proceed judgment to to in a crim- inal case, the trial court acquire jurisdiction must the offense of the offender. Jurisdiction of acquired the offense is formal ac- (warrant indictment). cusation Jurisdiction of the offender is ac- quired by arraignment arrest and If defendant, before the court. upon arraignment, challenges the validity of the indictment Peele as did, first inquiry of the court must relate to the validity of the indictment. It must be found pro- to be valid before the court ceed further. The argued ruling defеndant Peele in Jackson capital punishment abolished under North Carolina statutes and charging that the bill should quashed offense be that on ground. question So, directly presented in decided Peele. The again contention is capital punishment advanced that Carolina, abolished North a contention which rejected present review, we are ordered to examine the method of required selection. The light directive us to reconsider in Witherspoon. go way attempt go beyond We out of our if we assume, directive. We have the on assumption, act begin that our reconsideration should and end on question jury selection, question which was the sole involved in Witherspoon. The decision Jackson was two months when old we were ordered Spence high to reconsider and Williams. If the court intended for us light Jackson, to review the case the directive should and along no doubt would have included Jackson with Witherspoon.
Peele. have concluded the which convicted Spence
We and Williams according rights to their was not selected constitutional as set forth Although Witherspoon. the defendants are having indicted for crime, a most horrible committed cannot be executed and imprisoned that crime until a jury, should not selected in constitutional rights, accordance with their has convicted them. right nor duty neither its its require has waived them charge degree. of murder the first
answer the To that end we order trial.
New IN THE COURT SUPREME Spektoe concurring:
PARKER,C.J., of a court of Every man in criminal law knows that legal accused the declaring jurisdiction formally criminal upon a conviction consequences of his must be based charge against plea contendere to guilty or a of nolo Griffin, 613; S. v. Thompson, 148 S.E. 2d him. S. v. 267 N.C. Law 525 Jur. 2d Criminal 21 Am. 246 N.C. 100 S.E. § (1961). defendants, (1965); 24 Law C.J.S. Criminal § Superior in the indicted and tried Williams, were degree. They charges murder in the County on Guilford their charged with no recommendation were found appeal Prison. On imprisonment for life State’s sentences be trial, committed in the no error was this Court held that 2d 802. judgments upheld. 271 N.C. 155 S.E. verdicts and statute 14-17 North Carolina According to the verdicts the *8 convic- of death. There was no mandatory for a sentence provides a the degree in recommendation tion of murder the first Prison. 14-17. for life in the State’s G.S. imprisonment this the United States remanded appeal Supreme the Court of On in it should be judgment vacated case with an order the below light for consideration of Wither case is remanded and the light In 3, June 1968. of the Illinois, 1015, No. decided spoon v. highest courts of in effect overruled the decision, which Witherspoon 307, 152 S.E. 2d Childs, in S. v. 269 N.C. Union, states 35 cases of Tuberville 563; and the v. United A.L.R. 2d Annot., 48 813, L. 411, 946, 307 U.S. Ed. 2d and 2d cert. den. States, 303 F. cert. den. 347 U.S. 98 L. Puff, 211 F. 2d United States v. alleged infirmity because in a new trial we have ordered Ed. Witherspoon decision. In my under the the selection judgments of life im be remanded for new cannot opinion, the case support is no verdict and no life there prisonment because imprisonment. penalty proper death in a infliction of the years the Until recent my judgment, In questioned. been has not by the State
case in of the United States United States Supreme Court opinion of the L. Ed. 2d does not abolish the 750, Jackson, applicable North In the Carolina statutes. under penalty death Witherspoon case and the case, Jackson in majority opinions law been made which make have statements comprehensive broad, definitely majority and precisely what the to determine it difficult divergent illustrated views expressed This is hold. opinions majority in the instant case. If a the Court by members FALL TERM 1968 Supreme Court of to abolish the United States determined in in defiance country judicial this decision of the united since its predecessors wisdom of on that Court their inception come my until the last should years, opinion, few in out definitely leaving law in plainly say instead so the state of uncertainty my opinion, in exists that, and confusion today. If the in a case is abolished in this proper to be country, my it opinion, peoрle should be done a vote by their duly representatives. majority opin- elected concur in I ion this case. J., concurring part dissenting part:
Bobbitt, Joseph Eugene Spence Williams, separate and Glenn O’Neil indictments, charged May- with the murder of Alton Artamous nard. The cases were defendant, consolidated for trial. As each returned a of guilty degree verdict murder in the and did not imprisonment recommend that life. accordance with provisions these verdicts and 14-17, judge, the trial each defendant, pronounced as to imposing Upon appeal, Court, death sentence. as set forth fully in Parker, C.J., nothing found of defend- assignments ants’ of error which justify “would another trial as to defendant,” upheld judgments. either the verdicts and Spence, N.C. S.E. petition
Defendants filed with the Court of the United for a writ of certiorari to review the decision of this Court. specific alleged petition eight forth sets violations of their con- rights. It was asserted stitutional intеr alia that each had been de- *9 by a jury “his to trial peers nied constitutional of his when per of the veniremen drawn fifty-two disqualified cent are from serv- jury merely on his because of a ing stated reluctance to return a verdict.” petition, on Pending Supreme action defendants’ the Court of the 1968, States, 3, June Witherspoon Illinois, United on decided v. 391 776, Ed. 2d 88 510, 20 L. S. Ct. 1770. Petitions for U.S. certiorari Ellison, Petitioner, Texas, been in Jessie had filed v. and in Robert Jackson, Petitioner, George Beto, Louis v. J. Eddie Director, Texas 17, Department 1968, Corrections. On June Supreme Court order, in a per applicable of the United curiam States to the three cases, granted petitions certiorari,” “the for writs of and ordered: judgments of the courts below are “The vacated and the cases re- THE COURT
546 IN SUPREME v. light Witherspoon Illinois manded for reconsideration v. 2290. 1350, 20 L. ed. 2d 88 S. Ct. Witherspoon Illinois, supra, Supreme In of the United v. Court Supreme reviewing was of the Court on certioran decision People 224 2d Witherspoon, of Illinois in v. Ill. 2d N.E. petition a of a (1967), which had affirmed Circuit Court’s dismissal Hearing Witherspoon under Illinois filed Post-Conviction Act. jury Witherspoon convicted of the murder a
In a had fixed his at death. This police officer had Supreme People Witherspoon, of Illinois. Court affirmed (1963). prior Illinois 2d 2d 281 In Post-Convic- Ill. N.E. proceedings sought relief Corpus tion Federal Habeas ground Witherspoon on which Witherspoon had been denied. The now sought proceedings under consideration as- relief petition filed first time therein. serted granting certiorari, of the United States In following opera- question: “Whether the limited consideration to providing challenge that the state could of the Illinois statute tion jurors opposed to, who were or had con- prospective cause all capital punishment deprived peti- scruples against, scientious a cross jury fairly represented which section of the com- tioner pаrtial of a whose members were munity, and assured the State innocence, prosecution on the issue or violation of rights under the Sixth and Fourteenth Amendments petitioner’s Witherspoon Illinois, Constitution.” to the United States L. 88 S. Ct. 1035, 19 ed. expressing the views of Witherspoon, Stewart, Justice five Mr. “Specifically, we that a sentence stated: hold Court,
members if the or recom- be carried out death cannot excluding simply veniremen cause be- it was chosen mended the death or ex- general objections to voiced cause religious scruples its infliction. No pressed conscientious or constitutionally put death at the hands can defendant simply Also, Mr. Justice Stewart stated: “We so selected.” tribunal now us basis of the record before conclude, either on the cannot jurors opposed the exclusion of judicial notice, a matter of unrepresentative an on results capital punishment the risk of substantially increases conviction. In guilt issue information, we not prepared available are presently light requiring every rule the reversal of se constitutional per announce *10 jury selected as this one by was. ... It returned conviction FALL TERM 1968 Spettce v. has respect pe- not been shown that this with to the biased guilt.” opinion titioner’s includes majority Footnote 21 oí the following: “Nor of validity does the decision this case affect the today’s any Nor, sentence other does finally, than one of death. holding opposed render conviction, sentence, invalid the as to the in this separate opinion or other case.” Mr. Justice of Douglas, epitomizes who considered the decision narrow, too holding majority “Although these words: Court reverses to penalty, it declines to reverse of the verdict rendered jury.” the same reject
I jurors the idea “conviction-prone” that are be- simply cause they religious against cap- have no conscientious or scruples My punishment. experience as a judge they ital convinces me of are not. The correctness this view is in Bumper demonstrated Carolina, North L. ed. 2d 88 Ct. S.
It Black, is noted that Mr. Justice Mr. Justice Harlan and Mr. Justice White dissented from the decision in Witherspoon. majority in Witherspoon (1)
The clear decision of out, (2) the sentence death could not be carried that the ver- establishing Witherspoon’s guilt dict was not disturbed. The decision Supreme (1967), Court Illinois which had affirmed in all respects Witherspoon’s Circuit dismissal of post-convic- Court’s petition, was The word, tion “Reversed.” when “Reversed,” con- opinion, signifies only in context with Supreme sidered Illinois, upon case, remand of the would render Court decision with of Mr. conformity Justice Stewart. the United States, per its curiam order (decision) vacated the June this Court 802) N.C. S.E. (State Spence, 271 remanded light Witherspoon. for reconsideration Upon case to us re-
consideration, thаt, prior in accord our it is clear decisions but contrary Witherspoon, declared in to the law as veniremen ex- they general because voiced “simply objections for cause cluded expressed or religious the death conscientious scruples against Thus, under Witherspoon, its infliction.” the defendants can- “constitutionally put hands death at the tribunal so selected.” Witherspoon, judge the trial prospective
Under cannot exclude jurors simply general cause because objections voice express religious scruples conscientious or punishment. If, contrary infliction of my opinion, pun- *11 COURT IN THE SUPREME it present statutes, would permissible ishment death is under our ' n seema futile have con- jurors ask who gesture prosecutor for the against capital punishment to exer- religious scruples scientious or cise in a verdict that would re- their “unbridled” discretion favor of quire pronouncement the of a death sentence. holding jury defend- in the which tried
I concur the Court’s I Witherspoon.” not the laid in dissent ants “did meet test down a new trial as from the conclusion this entitled defendant to below, the penalty. my opinion, and as reasons stated be degree of of murder in first should not dis- verdicts the vacated; should be and case should turbed; the death sentences the judgments pronouncement imprison- of of life be remanded for the ment. pro- Carolina, of North
Article of the Constitution XI, Sec. being only object punishments satisfy justice, “The vides: prevent offender, murder, the and thus ar- crime, but to reform also punishable only, and these be burglary, rape, and son, with Assembly shall so enact.” death, if General provisions punishment containing North Carolina statutes quoted death are below. perpetrated by “A murder which shall be provides: 14-17
G.S. wait, imprisonment, starving, torture, in or poison, lying means killing, premeditated deliberate and willful, other kind or any attempt perpe- perpetration committed which shall be burglary or other shall rape, robbery, felony, be arson, trate degree punished in first and be be shall with deemed to murder rendering open court, at time its verdict in Provided, death: if recommend, punishment imprisonment shall be shall so prison, jury. and the court shall so instruct in the State’s for life All other kinds shall be deemed murder of murder the second de- imprisonment of not than punished shall be less two gree, prison.” thirty years in the than State’s nor more “Every person who is convicted of ravish- provides: 14-21 G.S. age carnally knowing any years female of of twelve ing and will, against her or who convicted unlawfully by force more abusing any child knowing age female under the carnally death; Provided, shall suffer years, shall so of twelve if open court, rendering its verdict time at recommend prison, the State’s imprisonment punishment shall life jury.” shall so instruct the court according to person convicted, due “Any provides: 14-52 FALL TERM 1968 Seeiíce degree law, burglary course of shall suffer the crime of Provided, rendering open death: its verdict court when recommend, imprisonment shall so shall he for life prison, jury. Anyone the State’s and the so instruct the court shall degree imprison- so shall burglary convicted in the second suffer *12 in prison ment or a of life, years, the State’s term in the dis- cretion of the court.” provides: “Any person according
G.S. 14-58 convicted to due course of law of Provided, the crime of arson shall suffer death: jury rendering the in recommend, shall so at the time its verdict of open court, punishment imprisonment the in shall be the for life prison, State’s and the jury.” court shall so instruct the portion
The italicized of is quoted each of the statutes incor- porated by Chapter therein of of the Session Laws 1949. Under amendments, interpreted the 1949 as by Court, jury, whether a upon a finding guilty degree, defendant of murder in or of the first burglary or of rape, degree, arson, or of shall recommend imprisonment that the in prison, life the Stаte’s is a within the “unbridled” matter discretion of jury. the State McMillan, 630, 65 S.E. 2d v. Denny, N.C. 249 N.C. opinion 113, 105 2d 446. The in McMillan S.E. states: “No condi- to, qualifications no tions are attached or limitations are right the upon, the of so recommend.”
Although my basis for not the conclusion herein, reference is Tobriner, J., of made whom Traynor, C.J., and concurred, the decision of Peters, J., of Cali- Anderson, Rptr. in In re Cal. 447 P. fornia filed No- opinion, In this vember Justice Tobriner concurs the ma- (six) Witherspoon jority required view that that the Court “set aside previously imposed in two cases now us.” In before (three) addition, expresses minority it view process that due of equal of the protection law and the laws is denied when the issue of is “unbridled” life or death left of jury. discretion The Chief comprise six Justice and Associate Justices the Supreme Court of California. Chapter 15-162.1, of the codification Session Laws 1953, provides:
of
“(a) Any person, charged when bill of indictment with the of felony degree, murder in the first burglary or in the first degree, arson, represented or when rape, by counsel, employed whether by or appointed the defendant the court under G.S. 15-4 and arraignment, after tender in 15-5, may, writing, signed per- such IN THE COURT SUPREME State, crime; plea guilty son his of such counsel, a Upon rejec- approval accept plea. with the such court, may plea defendant’s plea, tion such shall be legal significance whatever. guilty, and such tender shall have no “(b) accept- accepted, the tender the event such ance thereof shall verdict have effect open charged crime with recommendation court prison; imprisonment for life the State’s punishment shall be the defend- thereupon, pronounce the court shall prison. imprisoned ant be for life the State’s “(c) accepts plea, and until such no reference Unless the State arraignment any or at open be made in court at the time of shall plea; рroposed tender such and the other time the tender shall not be admissible as evidence either for or fact of such tender at other time and place. defendant in the trial or plea, to withdraw such without shall have the The defendant prejudice accepted any kind, until such time it is State.” *13 Assembly whether, to determine province It is of the General the ar- any murder, or of the crimes of policy, of all as matter sug- death. I do not punished should be son, burglary rape, the gest Assembly prohibited by the Constitution of the General punishment by death of a de- providing for the United from States (1) degree, (2) the first murder in or who is convicted fendant (4) Indeed, I (3) or arson. burglary degree, in the rape, or the provisions quoted in the defect perceive no constitutional Chap- the enactment of amendments and to the 1949 prior statutes statutes, prior to 1949 of 1953. Our the the Laws ter 616 of Session the North policy the State Carolina amendments, declared аs 2, to in Article XI, felonies referred Sec. the four that each of Subsequent to en- Constitution, punishable by was death. our amendments, whether the was to the 1949 actment of imprisonment juries, was to determined case or life be death to all applicable a law alike who committed case, rather than capital punishment are for to be retained provisions If crimes. these capital felonies, any of these so-called constitu- or all respect of in provisions if the of the 1949 amend- avoided would be pitfalls tional repealed. However, of G.S. 15-162.1 provisions and the ments consideration legislative and determination. matters are these portion of the decision Court’s which sets from that My dissent on authority orders new is based verdicts aside Supreme reasoning Court of the United States underlying Jackson, 138, 20 L. ed. 2d 88 S. States in United FALL TERM Speh-ce pro- Ct. decided April 8, my view, In the death present light visions of our of Jack- statutes, when considered son, are invalid. Jackson,
In held Supreme Court of the United States (18 penalty(cid:127) death provision Kidnapping Act U.S.C. Federal (a)) impermissible invalid because it an burden § an accused’s right plead of his not to exercise Fifth Amendment guilty and his trial. Sixth Amendment to demand a remainder of statute, penalty provision being separable, the death held Supreme valid. Six of nine members joined United States Two, the Jackson decision. Mr. Justice Black Mr. White, Justice part dissented. Mr. Justice Marshall took no in the consideration decision or of the case. Pope
In States, United L. ed. 2d 88 S. 17, 1968, Ct. decided June Court of United States, based on its held Jackson, penalty pro- decision the death (18 2113(e)) vision of the Federal Bank Robbery Act U.S.C. § but the remainder of statute, provision invalid the death penalty being separable, was valid. Seven of the nine members the Su- preme joined Court of the United decision. Mr. Justice and Mr. White Black Justice dissented. Jackson, a Federal District Court Connecticut dismissed charging count in the indictment a violation of the Federal Kid- pertinent
napping which, part, provides: Act knowingly “Whoever transports commerce, any person . . . interstate has who been unlawfully kidnapped . . . . . . and held for ransom ... or (1) by punished . . shall be otherwise . kidnapped unharmed, has not been liberated and if person the verdict of the (2) recommend, by imprisonment shall so term of imposed.” years life, if the is not theOn basis *14 provisions, the district court held quoted the entire un- of these Act portion quashed of charged indictment that constitutional States v. Jackson, (D. thereof. United Supp. F. a violation 1967). appeal by direct the Government, Supreme On Conn. United States reversed the Court the district case for further proceedings and remanded the court consistent with opinion Mr. Justice Stewart closed his opinion. its infirmity words: “Thus the of the death these clause does — Congress’ frustration of require the total purpоse not basic that kidnapping making interstate a federal By holding crime. the Federal Kidnapping clause of Act unenforceable, operative whole, an leave the statute free of any we constitutional IN THE SUPREME COURT Act, violating the prosecuted for objection. appellees may The be authority.” its they put death under but cannot be (1) “that the has held The Court of the United States compulsory is exception from self-incrimination Amendment’s Fifth against abridgment Amendment protected by also the Fourteenth ed. 2d Malloy 12 L. 84 S. States,” Hogan, a (2) guarantees “that the Fourteenth Amendment Ct. criminal cases which —were to be tried right jury trial all — come within Sixth Amendment’s in a court would federal ed. Louisiana, 20 L. Duncan v. guarantee,” our statutes contain the con- question 1444. The is whether 88 S. Ct. Supreme Court of the infirmity caused the United stitutional penalty provision the death of the Federal to declare invalid Kidnapping Act. Justice Stewart state the excеrpts from the of Mr. These - in Jackson.
basis of decision (1) Kidnapping Act, therefore, de- “Under the Federal guilt a right jury to contest his before is fendant who abandons ingenuous executed; he be the defendant to seek assured that cannot that, jury guilty if the finds him jury a stands forewarned acquittal problem life, he will die. Our is to de- spare does wish to his permits the establishment of such a Constitution cide whether the only to those defendants who assert applicable penalty, jury. inevitable before effect of such right to their contest discourage Fifth assertion Amend- provision is, course, guilty plead and to deter exercise of the right not to Sixth ment jury trial.” to demand Amendment (2) Government, that fed- urge, as does the “It no answer upon reject pleas guilty coerced relied judges eral trial be involuntary the evil in the trial. For federal waivers guilty pleas and jury coerces waivers necessarily is not that it statute encourages A needlessly procedure them. need not that it simply but impose an imper- it be held to in order that inherently coercive right. aof constitutional upon the assertion Thus missible burden Kidnapping discourage Act tends to Federal de- fact that demanding their innocence and insisting from fendants every who enters defendant hardly implies involuntarily. power reject does so the Act charge to a under involuntary might waivers alleviate, guilty pleas coerced eliminate, infirmity the constitutional totally but it cannot the Federal provision Kidnapping Act.” Act, construed in Jackson, provides Kidnapping The Federal *15 TEEM 1968 553 FALL State v. imposed
the jury shall be so recommends. Our if provide statutes shall be unless the jury imprisonment. recommends life If there be real difference, it pressure upon would seem that the a defendant enter a plea that greater will avoid “the risk of death” would be under our statutes. certainly This difference is In North Carolina, respect noted. of all a felony eases, plead guilty, defendant cannot not a waive guilt have by judge. I, his determined the trial Article Sec- tion 13, Carolina; of Constitution of North Camby, State v. 209 (Note: 715, 50, N.C. 182 S.E. and cases adoption cited. Prior to the 15-162.1, of the court would not under any accept circumstances degree. plea guilty a murder in the of of first v. Blue, 219 N.C. Simmons, 743.) S.E. N.C. S.E. 2d 23(a) Rule of Federal Rules of Criminal provides: Procedure required “Cases tried shall be so tried unless the de- writing a trial in approval fendant waives with the the court of (Our italics.) and the consent Government.” Hence, federal of right no prosecutions, a defendant has absolute to waive jury trial judge a his determined rather than by jury. have a provide that the tender a Our statutes defendant plea of a guilty legal significance a no capital offense has unless and until plea accepted is (our the tendered the State the solicitor approval with prosecuting attorney) presiding judge. Rule provides: 11 of Federal Procedurе Rules Criminal “A defend- plead guilty, guilty or, ant with may not the consent of the court, court to accept plea nolo contendere. The refuse a of guilty, such or a accept plea plea and shall not nolo contendere without addressing personally determining the defendant understanding plea voluntarily made nature of the charge consequences plea. If a defendant refuses to plead accept plea if a guilty the court refuses a de- corporation appear fails to court shall fendant enter a shall not enter a guilty. .plea The court a a unless it is satisfied that there is factual plea.” basis prosecution a cannot Hence, require a defendant federal accept- right. plea as matter of ance of his Jackson, Justice states: “It is true that a Mr. Stewart de- right to insist he be tried by
fendant has no constitutional jury, Singer States, v. United judge than rather L. it is true" also ‘that a ed. 2d 85 S. Ct. criminal defend- (no) guilty plea have accepted by absolute his ant has
554 IN THE COURT SUPREME
State
v.
719,
211,
2d
Lynch Overholser,
705,
220,
court.’
8 L. ed.
v.
In my view, grounds on which the Court Fed- provision United penalty death invalidated the in- eral to our statutes and Kidnapping apply equal Act force fully am aware of penalty validate the thereof. I provisions death my in However, judgment, the force and conclusion. impact of this upheld death can be as present statutes, under our no sentence of expenditure in is a valid, ending and a trial a death sentence futile n any event, question In time, money and resources. human by definitively and settled the Su- sharp drawn into focus should be possible. as preme United States as soon Peele, in v. 274 N.C. 161 S.E. 2d Court’s provisions between the of the Fed- setting after forth differences North codified as Kidnapping eral Act and the Carolina Statutes expresses 15-162.1, 14-21 the view “that Jackson is and G.S. G.S. holding in North authority the death Carolina not rape.” circumstances for the crime of In imposed under not be dictum, now, unnecessary the statement was opinion, then my appeal. pleaded presented Peele question decision of rape and recommended convicted him that his guilty. The In accordance with for life. the ver- imprisonment be imprisonment validity entered. of a life judgment of dict, Jackson was relevant not involved. factual penalty was in only authority Peele consideration under situation provision, invalid, sep- proposition felony rape as theretofore, existed that, since arable; and properly indictment was overruled. quash motion State, App. v. Appeals Parker N.C. The Court judgment dismissing reviewing post- on certiorari S.E. from quoted Peele, State v. petition, supra, cited conviction expressions with the accordance Peele. The views expressed State, v. Appeals Parker supra, under the Court decision of 7A-31, subject was not to further review and G.S. 7A-28 7A-28 and view, G.S. G.S. 7A-31 should my this Court. that decisions of the Appeals end Court of promptly amended subject will be proceedings to review post-conviction State, supra, as in Parker most serious consti- Frequently, Court. in post-conviction for decision presented pro- are questions tutional ceedings. Jersey provisions have statutory New similar Carolina South Jackson, Court of South Car-
to ours. Confronted FALL TERM 1968 Spekce olina, (1968), ..... 2d 712 Harper, S.C. ....., 162 S.E.
the Supreme cella, For N.J. Jersey, Court New in State v. and invalid statutes (1968), A. 2d 181 held unconstitutional statutory
similar pro to our as valid their G.S. 15-162.1 and retained providing visions I no basis de penalty. perceive for the death claring policy invalid. The de G.S. 15-162.1 unconstitutional and Assembly cision is must de Assembly. for the General The General *17 by statutory cide whether the to retained amend death is statutory involving ments whether our repeal the of 15-162.1 or provisions punishment for provide are to be modified to life so as imprisonment pleads guilty to person when a is convicted or one of the a In felony. crimes denominated this respect, heretofore my expressed dissenting views are in full accord with those the supra. v. Forcella, of Justices Jacobs and Hall State Witherspoon,
The reach these: Under the conclusions I are ver- degree dicts are not guilty of of murder the first disturbed. Under Jackson, penalty, present statutes, death under our is the invalidated. statutes, degree Under for murder first our the is imprisonment. Upon invalidation either death or life of the death only permissible punishment imprisonment. life penalty, the Con- my to vacate death sequently, vote is sentences and to remand pronouncement court superior as to case to each de- imprisonment. a of life fendant of foregoing opinion prior filing was written on No opinions (two of 26, 1968, split
vember decision one) to Appeals panel of a of the of the Fourth Circuit in Alford (4th 1968). F. 2d Carolina, North Cir. Cf. Townes v. Pey (4th 1968). ton, F. Cir.
Alford was (1) not confronted with necessity of pleading guilty degree to murder in the first receiving a sentence of life imprisonment, (2) or of pleading guilty thereby risking by the jury, conviction without recommendation of imprison- life cent, death and a sentence. The State require did not Alford to guilty tender of of murder plea degree a in the first in order to avoid possibility of a sentence. accepted plea his of guilty degree, murder in the second of for which the pun- maximum imprisonment for thirty years; ishment is and, defendant’s tender acceptance plea of and the to an State’s included lesser degree- homicide, of defendant unlawful avoided the possibility of a imprisonment. my sentence of life opinion, Jackson applies when,, guilty a of only when, plea of murder in the degree but is ex- a only means which acted as the defendant avoid pos- penalty. sibility of IN THE SUPREME COURT Ray charged disagree who is sharply defendant, I with the idea that a counsel, provided represented by with murder in G.S. and is 15-144 strength weight or when, acts under coercion on account guilty to mur- tending pleads guilt, the evidence to establish his he involun- degree voluntary or manslaughter, second or to der charged I a defendant circumstances, under like do think tary. Nor, an pleads guilty when he to assault rape acts under coercion with aon female a rape to commit or to an assault male with intent eighteen years. under like age Nor, circumstances, person over charged with person when, burglary a acts under coercion I think do guilty arson, felony, pleads other “a degree, or he less in the first commit crime, attempt or of an the crime degree of the same so degree a attempt an commit less of the same charged, crime.” person do I think a circumstances, under like Nor, acts G.S. 15-170.. charged pleads he when, felony, guilty to an under coercion larсeny misdemeanor, e.g., personal when indicted included felony, pleads than he $200.00, value of more guilty property $200.00 property less, value larceny personal mis- demeanor. Jackson, a defendant’s
True, apart *18 from if in it is made must be vacated fact voluntarily offense criminal However, when defendant elects understandingly. tender crime of less degree, to an included both he and his consideration the necessarily take into evidence of the State, counsel defendant, and all to the other factors per- available evidence tendering plea, advisability such including pos- tinent the crime charged, sibility conviction more degree thereof, and greater the risk punish- lesser included serious conviction. such pursuant ment opinion. in this joins J., Shaep, THEODORE RAY v. EDWARD
STATE No. 741 1968) (Filed 11 December necessity Indictment 2— and Warrant Daw § § Constitutional indictment valid precedent jurisdiction a condition indictment A valid defendant, or innocence of determine Superior