¶1concurring:
¶2The defendant was indicted for murder in the first degree. When arraigned, he entered a plea of not guilty. The parties to the trial selected a jury satisfactory to both. After full hearing and determination, the jury returned a verdict of guilty as charged. The court followed the mandate of G.S. 14-17 and imposed a death sentence. This Court has held the trial was free from error. So long as the verdict stands, no other sentence or judgment is authorized.
¶3In my opinion the rule announced by the Supreme Court in United States v. Jackson, 390 U.S. 570 is not applicable in this case. Jackson was indicted for kidnapping. For that offense the law empowered the judge to punish by imprisonment. The Kidnapping Act, however, provides that if the victim is not released unharmed, the jury may fix the punishment at death. The jury, but not the judge, has such power. By a plea of guilty, the kidnapper bypassed the jury and placed himself before the trial judge whose power to punish is limited to imprisonment. The Supreme Court held the fear of the death penalty was a chill on the constitutional right of the accused to plead not guilty and to demand a jury trial. The danger to be avoided is the risk that an innocent man may be caught in a mesh of circumstances which induces him to plead guilty rather than permit a jury with its power of life or death to pass on his case.
¶4In the light of Jackson, the defendant Atkinson might have reason to complain if he had entered a plea of guilty under the provisions of G.S. 15-162.1 (now repealed) and submitted to a life sentence. He might allege that his rights to plead not guilty and to have a jury trial were abandoned because he feared the result incident to a jury verdict. These considerations, in no wise, interfered with Atkinson’s constitutional right to plead not guilty and to have a jury trial. He pled not guilty. He had a jury trial. His constitutional rights, in no particular, were denied him. So far as the assertion of these rights was concerned, G.S. 15-162.1 was not involved.
¶5If the Court undertakes to determine that punishment for murder in the first degree shall be by imprisonment, it goes beyond the' au*323thority of G.S. 14-17 and I think beyond the function of proper appellate review, and invades the legislative field.
¶6I concur in the Court’s opinion.
¶7dissenting as to death sentence:
¶8I vote to vacate the judgment imposing the death sentence. In my opinion, the verdict of guilty of murder in the first degree should be upheld and the cause remanded for pronouncement of a judgment imposing a sentence of life imprisonment.
¶9When the loathsome and despicable crime was committed and when defendant was arraigned, tried and sentenced, the statutes in force relating to first degree murder were codified as G.S. 14-17 and as G.S. 15-162.1. G.S. 14-17 has continued and is now in force. G.S. 15-162.1 was repealed (effective March 25, 1969) by Chapter 117, Session Laws of 1969.
¶10G.S. 14-17 and G.S. 15-162.1, when both were in force, were in pari materia. Considered and construed together, they set forth a unitary statutory plan for the punishment of first degree murder by death or by life imprisonment. The tender and acceptance of a plea of guilty of first degree murder in accordance with G.S. 15-162.1 removed the possibility of a death sentence. The possibility of a death sentence remained if a defendant pleaded not guilty and was placed on trial for first degree murder. If found guilty of first degree murder, the punishment was death unless the jury in its unbridled discretion saw fit to recommend that the punishment be imprisonment for life.
¶11It was and is my opinion that, until G.S. 15-162.1 was repealed, decisions of the Supreme Court of the United States in United States v. Jackson, 390 U.S. 570, 20 L. ed. 2d 138, 88 S. Ct. 1209, and Pope v. United States, 392 U.S. 651, 20 L. ed. 2d 1317, 88 S. Ct. 2145, invalidated the death penalty provision of G.S. 14-17 and that no valid sentence of death could be pronounced.
¶12The death penalty provisions of the Federal Kidnapping Act (18 U.S.C. § 1201(a)) and of the Federal Bank Robbery Act (18 U.S.C. § 2113(e)) were held invalid in Jacksonand in Pope, respectively, because they imposed an impermissible burden upon an accused’s exercise of his Fifth Amendment right not to plead guilty and his Sixth Amendment right to demand a jury trial. No other provision of either of these statutes was invalidated. In gist, these decisions held that no death penalty provision is valid if applicable only to defendants who assert the right to contest their guilt before a jury.
¶13*324Reference is made to my (concurring in part and dissenting in part) opinion in State v. Spence, 274 N.C. 536, 545, 164 S.E. 2d 593, 598, for the full provisions of G.S. 14-17 and G.S. 15-162.1, and to the discussion therein of each of the following decisions: United States v. Jackson, supra; Pope v. United States, supra; State v. Harper, 162 S.E. 2d 712 (S.C. 1968); State v. Forcella, 245 A. 2d 181 (N.J. 1968); Alford v. North Carolina, 405 F. 2d 340 (4 Cir. 1968); In re Anderson, 447 P. 2d 117 (Cal. 1968).
¶14The majority opinion herein seeks to uphold the validity of the death sentence on grounds other than those expressed in support of its validity in State v. Peele, 274 N.C. 106, 161 S.E. 2d 568, and adopted in Parker v. State, 2 N.C. App. 27, 162 S.E. 2d 526. Hereafter, this opinion relates primarily to the asserted new grounds upon which the majority rely.
¶15In my opinion, no provision of the Constitution of the United States prohibits our General Assembly from providing for the punishment by death of a defendant who is convicted of the crime of murder in the first degree. It is the province of the General Assembly to determine whether, as a matter of State policy, murder in the first degree should be punished by death. I am in accord with the majority’s holding that the imposition of the death penalty for murder in the first degree is not unconstitutional per se. We differ as to whether Jacksonand Popeinvalidated the death penalty provision of G.S. 14-17 during the period prior to the repeal of G.S. 15-162.1.
¶16In the majority opinion, emphasis is placed on the fact defendant pleaded not guilty and that the death sentence was pronounced pursuant to the verdict of the jury. In Jacksonand Pope, whether a defendant pleaded guilty or not guilty had no bearing upon the validity of the death penalty provision. It was held the death penalty provision itself was invalid.
¶17In Jackson, the defendant did not plead to the indictment but moved to quash it. It was held the death penalty provision was invalid but that the statute was otherwise valid and the prosecution would proceed on the indictment but in no event could a death sentence be pronounced. In Pope, as in the present case, the defendant pleaded not guilty and the jury which convicted him directed that he be punished by death. Holding the death penalty provision invalid, the judgment of the Court of Appeals which sustained the death sentence was vacated and the cause was remanded for further proceedings consistent with the opinion.
¶18*325In my opinion, the death penalty provision of G.S. 14-17 during the period prior to the repeal of G.S. 15-162.1 was invalid under all circumstances. Its invalidity did not vary from case to case according to each defendant’s plea.
¶19The majority opinion asserts that Jacksoninvalidated the 1934 Act, which amended the Federal Kidnapping Act. In my opinion, Jacksoninvalidated only the death penalty provision of the 1934 Act.
¶20The full text of the Act of May 18, 1934, 48 Stat. 781-782, is quoted below.
¶21“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Act of June 22, 1932 (U.S.C., ch. 271, title 18, sec. 408a), be, and the same is hereby, amended to read as follows:
¶22“ ‘Whoever shall knowingly transport or cause to be transported, or aid or abet in transporting, in interstate or foreign commerce, any person who shall have been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away by any means whatsoever and held for ransom or reward or otherwise, except, in the ease of a minor, by a parent thereof, shall, upon conviction, be punished (1) by death if the verdict of the jury shall so recommend, provided that the sentence of death shall not be imposed by the court if, prior to its imposition, the kidnaped person has been liberated unharmed, or (2) if the death penalty shall not apply nor be imposed the convicted person shall be punished by imprisonment in the penitentiary for such term of years as the court in its discretion shall determine: Provided, That the failure to release such person within seven days after he shall have been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away shall create a presumption that such person has been transported in interstate or foreign commerce, but such presumption shall not be conclusive.
¶23“ ‘SeC. 2. The term “interstate or foreign commerce”, as used herein, shall include transportation from one State, Territory, or the District of Columbia to another State, Territory, or the District of Columbia, or to a foreign country, or from a foreign country to any State, Territory, or the District of Columbia.
¶24“ ‘Sec. 3. If two or more persons enter into an agreement, confederation, or conspiracy to violate the provisions of the foregoing Act and do any overt act toward carrying out such unlawful agreement, confederation, or conspiracy, such person or persons shall be punished in like manner as hereinbefore provided by this Act.’ ”
¶25*326The 1934 Act, a complete statute, incorporates the provisions of the (original) Federal Kidnapping Act of June 22, 1932, 47 Stat. 326, and in addition the italicized portion enacted originally by the 1934 Act. It is noteworthy that the proviso in Section 1, which was enacted originally by the 1934 Act, was not invalidated by the decision in Jackson.
¶26The death penalty provision considered in Popewas an integral part of the Act of May 18, 1934, 48 Stat. 783, the basic (original) Federal Bank Robbery, Act. Section 3 of the 1934 Federal Bank Robbery Act provided: “Whoever, in committing any offense defined in this Act, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person, shall be punished by imprisonment for not less than 10 years, or by death if the verdict of the jury shall so direct.” In Pope, the death penalty provision, an integral part of the original statute, was held invalid. No statute amending the original act was involved.
¶27It is noted that the decisions in Jacksonand in Popedid not impair the right of a defendant to tender or the right of the court to accept or refuse to accept a plea of guilty or nolo contendere as provided in Rule 11 of the Federal Rules of Criminal Procedure. See my opinion in Spence, 274 N.C. at 553, 164 S.E. 2d at 603.
¶28The majority opinion suggests that Jacksonmay have invalidated G.S. 15-162.1 rather than the death penalty provision of G.S. 14-17. I cannot accept this view. G.S. 15.162.1 provided for punishment by life imprisonment when a plea of guilty of first degree murder was tendered and accepted. In such case, neither the judge nor the jury had any discretionary power in respect of punishment. Obviously, the General Assembly had authority to provide for the tender of such plea and for punishment by life imprisonment upon acceptance thereof. I perceive no invalidity whatever in that statute. The impact of this valid statute is what rendered invalid the death penalty provision of G.S. 14-17. G.S. 15-162.1 was based on Chapter 616, Session Laws of 1953, which repealed all laws and clauses of laws in conflict therewith.
¶29Recent decisions in which Jacksonis considered are noted below.
¶30In King v. Cook, 211 So. 2d 517, it was held that Jacksondid not apply. The Supreme Court of Mississippi, in drawing the distinction between the Federal Kidnapping Statute and the Mississippi-statute, said: “A defendant in this jurisdiction who enters a plea, of *327.•guilty is not assured that he will not receive the death penalty. Before the death penalty can be imposed under Section 2217 as interpreted in Yates, upon an accused’s entering a guilty plea, the trial judge must submit the question of the type of punishment to a jury, which may impose either the death penalty or a life sentence.”
¶31In Maxwell v. Bishop, 398 F. 2d 138, the Court of Appeals for the Eighth Circuit, after a discussion of the Arkansas statutes, said: “Thus, in contrast to the Federal Kidnaping Act, an Arkansas defendant, by entering a plea of guilty in a capital case, does not avoid a trial by jury on the issue of punishment. The critical choice under the federal act which occasioned the result in Jackson, is thus not present under the Arkansas statutes.”
¶32It should be noted that North Carolina statutes make no provision for separate trials as to guilt and as to penalty by the same jury or by different juries.
¶33Whether Jacksonapplied was only one of several constitutional questions considered in Maxwell v. Bishop, supra. Certiorari to review the Eighth Circuit’s decision in Maxwell v. Bishop, supra,was granted December 16, 1968, 393 U.S. 997, 21 L. ed. 2d 462, 89 S. Ct. 488. In granting certiorari, the Supreme Court of the United States limited its review to Questions 2 and 3 of the petition which read as follows:
¶34“2. Whether Arkansas’ practice of permitting the trial jury absolute discretion, uncontrolled by standards or directions of any kind, to impose the death penalty violates the Due Process Clause of the Fourteenth Amendment?
¶35“3. Whether Arkansas’ single-ver diet procedure, which requires the jury to determine guilt and punishment simultaneously and a defendant to choose between presenting mitigating evidence on the punishment issue or maintaining his privilege against self-incrimination on the guilt issue, violates the Fifth and Fourteenth Amendments?”
¶36Although I rest my dissent primarily on Jacksonand Pope, the questions awaiting decision by the Supreme Court of the United States in Maxwell v. Bishop, supra,directly involve the validity of the proviso of our G.S. 14-17. Uncertainty in respect of its validity should be removed by the decision in that case. It is noted that full arguments were heard by the Supreme Court of the United States in March, 1969. 37 U.S.L.W. 3330-3333.
¶37Summarizing my views:
When the crime was committed and when defendant was arraigned, *328tried and sentenced, the death penalty, under the North Carolina statutes then in force, was invalid and unenforceable. Under our statutes, the punishment for murder in the first degree is either death or life imprisonment. Upon invalidation of the death penalty, the only permissible punishment was life imprisonment. Consequently, my vote is to vacate the death sentence and to remand the case to the superior court for the pronouncement of a judgment of life imprisonment.