STATE
v.
George Cecil COOK, Jr.

C. C. Horn and A. A. Powell, Shelby, for defendant-appellant.

Atty. Gen. George B. Patton and Asst. Atty. Gen. T. W. Bruton for the State.

PER CURIAM.

The theory of the State's case was that of murder committed in the perpetration or attempt to perpetrate the felony of robbery. The jury were instructed that they might return a verdict of guilty of murder in the first degree, or a verdict of guilty of murder in the first degree with recommendation of life imprisonment, or a verdict of not guilty.

As in State v. Carter, 243 N.C. 106, 89 S.E.2d 789, and State v. Adams, 243 N.C. 290, 90 S.E.2d 383, the court failed to instruct the jury as to the legal effect under G.S. § 14-17 of a verdict of guilty of murder in the first degree with recommendation of life imprisonment, namely, that such verdict would require that the court pronounce thereon a judgment of life imprisonment. The Attorney-General, with commendable frankness, concedes that the Carter and Adams cases control decision. The failure to comply with the mandatory provisions of G.S. § 14-17 necessitates a new trial.

Since there must be a new trial for the reasons stated, we do not discuss the sufficiency of the verdict as recorded to support a judgment imposing a death sentence. In that connection, reference is made to State v. Matthews, 142 N.C. 621, 55 S.E. 342, and State v. Bazemore, 193 N.C. 336, 137 S.E. 172; also, G.S. § 15-172.

New trial.