State v. Summers

284 N.C. 361 | N.C. | 1973

. HIGGINS, Justice.

The defendant assigns as error the failure of the court to require Mrs. Brooks to answer this question: “How many times have you had your husband convicted of assaulting you?” If required to answer, she would have said, “Three or four times.” In sustaining the solicitor’s objection to the inquiry, the trial judge evidently concluded the question would raise other questions and would tend to lead the jury into a consideration of issues not pertinent to the burglary charge. Because of his favorable position and his wide discretion in controlling the scope of cross-examination in criminal cases, the ruling of the trial judge should not be disturbed except when prejudicial error is disclosed. State v. Robinson, 280 N.C. 718, 187 S.E. 2d 20; State v. Ross, 275 N.C. 550, 169 S.E. 2d 875. Error prejudicial to the defendant does not appear. Likewise, the court did not commit error in sustaining the objection to the solicitor’s argument. The solicitor merely stated that the grand jury had seen fit to indict the defendant. The court made the same statement in informing the jury as to the nature of the charge. The argument does not seem to be improper and .the motion for a new trial based thereon was properly overruled.

The defendant’s motions to dismiss for insufficient evidence were properly denied. The State’s evidence disclosed a breaking into of a closed and occupied dwelling house in the nighttime for the purpose of comitting rape. Mrs. Brooks recognized the intruder by his voice and identified the defendant. His fingerprints were found on the metal spray container which the evidence disclosed the intruder had used as a weapon to inflict injuries on the head and face of Mrs. Brooks. When she screamed, arousing her daughter, the defendant fled the scene.

The defense offered nothing in contradiction except an extensive cross-examination which the court had, with difficulty, kept within bounds. Motions to dismiss were properly overruled. The State had made out a case for the jury. State v. Cutler, 271 N.C. 379, 156 S.E. 2d 679; State v. Rowland, 263 N.C. 353, 139 S.E. 2d 661; State v. Stephens, 244 N.C. 380, 93 S.E. 2d 431.

The defendant objected to the charge on the ground of imbalance in the court’s statements of the contentions. The court’s charge, when examined in context, seems to be fair and in balance. The defendant should have made objection before the jury retired if he was dissatisfied with the statement of' his contentions. State v. Lambe, 232 N.C. 570, 61 S.E. 2d 608; State v. Thompson, 226 N.C. 651, 39 S.E. 2d 823.

We conclude the trial and verdict are free from legal objection. However, the judgment imposed was unauthorized by applicable law. “G.S. 14-52. Punishment for burglary. — Any person convicted, according to due course of law, of the crime of burglary in the first degree shall suffer death: Provided, if the jury when rendering its verdict in open court shall so recommend, the punishment shall be imprisonment for life in the State’s prison, and the court shall so instruct the jury.”

On June 29, 1972, the Supreme Court of the United States decided Furman v. Georgia, 408 U.S. 238, 33 L.Ed. 2d 346, 92 S.Ct. 2726. Furman was under a death sentence in Georgia for murder. He filed in the Supreme Court of the United States a petition for certiorari. Two other persons under death sentences, one in Georgia and one in Texas, filed like petitions. “Certiorari was granted limited to the following question: ‘Does the imposition and carrying out of the death penalty in [these cases] constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?’ 403 U.S. 952 (1971). The Court holds that the imposition and carrying out of the death penalty in these cases constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings. So ordered.”

The Per Curiam decision in Furman above quoted does not specify the legal reasoning which influenced the Court to invalidate the death sentences. From the individual opinions of the Justices, however, it appears a majority of the Court held the view that a death sentence is cruel and unusual punishment if the statute under which it was imposed gave to the judge or to the jury the option to fix the punishment at death or life imprisonment.

Since the decision in Furman, the Supreme Court of the United States has allowed certiorari to this Court, vacated death sentences, and remanded the cases to us for further proceedings. Our procedure has been to remand each case to the trial court for the imposition of a life sentence. In some instances, the trial judge upon a conviction of a capital felony without a jury recommendation of life imprisonment, has imposed a life sentence'. Of course, the trial courts are, as this Court is, bound by the decision in Furman. State v. Hill, 279 N.C. 371, 183 S.E. 2d 97; State v. Roseboro, 279 N.C. 391, 183 S.E. 2d 108; State v. Atkinson, 279 N.C. 386, 183 S.E. 2d 106; State v. Chance, 281 N.C. 746, 191 S.E. 2d 65; State v. Doss, 281 N.C. 751, 191 S.E. 2d 70; State v. Miller, 281 N.C. 740, 190 S.E. 2d 841; State v. Westbrook, 281 N.C. 748, 191 S.E. 2d 68.

The only sentence the trial judge was authorized to impose on the defendant for the crime he committed on August 5, 1972, was imprisonment for life. State v. Waddell, 282 N.C. 431, 194 S.E. 2d 19.

Under the authority of the cases herein cited, we vacate the sentence of forty years’ imprisonment imposed on the defendant, remand the case to the Superior Court of Alamance County to the end that the presiding judge, by proper writ, shall have the defendant and his counsel of record brought before the court, and the court shall enter judgment that the defendant be confined in the State’s prison for the term of his natural life.

Remanded for Judgment.