¶1dissenting:
¶2All of defendant’s assignments of error relate to the court’s action in allowing challenges for cause by the State to seven prospective jurors simply because they voiced general objections to the death penalty or expressed conscientious scruples against capital punishment. The Court holds these rulings violate the constitutional standards set forth in Witherspoon v. Illinois, 391 U.S. 610, 20 L. ed. 2d 776, 88 S. Ct. 1770. We agree.
¶3In Witherspoon, Mr. Justice Stewart, expressing the views of five members of the Court, stated: “Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.” Also, Mr. Justice Stewart stated: “We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. In the light of the presently available information, we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was. ... It has not been shown that this jury was biased with respect to the petitioner’s guilt.” Footnote 21 of the majority opinion includes the following: “Nor does the decision of this case affect the validity of any sentence other than one of death. Nor, finally, does today’s holding render invalid the conviction, as opposed to the sentence, in this or any other case.” The separate opinion of Mr. Justice Douglas, who considered the decision too narrow, epitomizes the holding of the majority in these words: “Although the Court re*45verses as to penalty, it declines to reverse the verdict of guilt rendered by the same jury.”
¶4The clear decision of the majority in Witherspoon was (1) that the sentence of death could not be carried out, and (2) that the verdict establishing Witherspoon’s guilt was not disturbed. Thus, subject to the limitation that the sentence of death could not be carried out, whether a judgment of imprisonment for life or a term of years should be pronounced on the verdict establishing Witherspoon’s guilt or a complete new trial should be ordered became a matter for determination in accordance with Illinois law.
¶5Heretofore, in split decisions, this Court has held, in State v. Spence, 274 N.C. 536, 164 S.E. 2d 593, and in State v. Atkinson, 275 N.C. 288, 167 S.E. 2d 241, that the same error in selecting the jury which occurred in this case entitled the defendant to a new trial on the issue of his guilt. We dissented in Spenceand in Atkinson. It seems appropriate that we restate breifly the grounds of our dissent.
¶6G.S. 15-162.1, which was in force when defendant was arraigned, tried and convicted, provided that the tender and acceptance of a plea of guilty of murder in the first degree, rape, burglary in the first degree, or arson, had the effect of a verdict of guilty of such crime with recommendation by the jury that the punishment be imprisonment for life in the State’s prison; and, in such event, required that the court pronounce a judgment of life imprisonment. If a plea of guilty was tendered by a defendant and accepted by the State, with the approval of the court, the defendant by such plea avoided a jury trial and the possibility of a conviction resulting in a death sentence. G.S. 15-162.1 was repealed March 25, 1969.
¶7It is, and has been, our opinion that, prior to the repeal of G.S. 15-162.1, the death penalty provisions relating to murder in the first degree, rape, burglary in the first degree and arson (G.S. 14-17, G.S. 14-21, G.S. 14-52 and G.S. 14-58, respectively) were invalidated by the 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 (1968), and in Pope v. United States, 392 U.S. 651, 20 L. ed. 2d 1317, 88 S. Ct. 2145 (1968). The reasons for our opinion are set forth fully in the dissenting opinions in State v. Spence, supra,and in State v. Atkinson, supra.If our view is correct, North Carolina had no death penalty in February, 1968, when Johnny Ruth was convicted of murder in the first degree and sentenced to die.
¶8In Alford v. State of North Carolina, 405 F. 2d 340, a panel of the United States Court of Appeals for the Fourth Circuit in a split *46decision (two to one) held the Jacksonand Popedecisions invalidated the death penalty provisions of our North Carolina statutes. The Supreme Court of the United States granted certiorari to review the Alfordcase and heard oral arguments therein on November 17, 1969. Its decision may determine whether Jacksonand Popedid invalidate the death penalty provisions of our North Carolina statutes as they existed prior to March 25, 1969.
¶9Notwithstanding the repeal of G.S. 15-162.1, the uncertainty as to the validity of the death penalty provisions of our North Carolina statutes continues for reasons other than those discussed in Jacksonand Pope. These additional questions may be resolved by the forthcoming decision of the Supreme Court of the United States in the case of Maxwell v. Bishop, which was first argued at its Spring Term 1969 and has been set for reargument at its Fall Term 1969. Maxwell v. Bishop involves Arkansas statutes containing provisions similar to those in our North Carolina statutes. The Supreme Court in allowing certiorari to review the decision of the United States Court of Appeals for the Eighth Circuit (Maxwell v. Bishop, 398 F. 2d 138), limited consideration to Questions 2 and 3 of the petition for certiorari, viz.:
¶10“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?
¶11“3. Whether Arkansas’ single-verdict 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?”
¶12It seems probable that the decision in Maxwell v. Bishop will settle existing uncertainty as to the validity of our present statutory provisions relating to capital punishment.
¶13If it should be determined that the majority of this Court are correct in their view that the death penalty provisions of our statutes were and are valid, we would join in the decision that the verdict and judgment should be vacated and the cause remanded for a new trial.
¶14On the other hand, if it should be determined by the Supreme Court of the United States that the death penalty provisions of our statutes, as of the date defendant was arraigned, tried and convicted, *47were invalid, either under the decisions in Jacksonand Popeor on grounds that may be decided in Maxwell v. Bishop, we would not disturb the verdict but would remand the cause for pronouncement of a judgment imposing a sentence of life imprisonment.
¶15Our statutes provide only two possible judgments, death or life imprisonment, where a defendant is convicted of murder in the first degree, rape, burglary in the first degree, or arson. If the death penalty provisions are invalidated, the only permissible punishment upon conviction for these crimes is life imprisonment. We are not at all impressed with the suggestion that, even if the death penalty provisions are invalidated, no judgment of imprisonment for life can be pronounced unless the jury, at the time of rendering its verdict in open court, recommends that “the punishment shall be imprisonment for life in the State’s prison.” If the alternative of death is invalidated, there would be no occasion for the jury to do otherwise than render a verdict as to defendant’s guilt. The jury would have no discretion as to whether the punishment should be death or life imprisonment. Any recommendation the jury might make in respect of punishment would be inappropriate and without legal significance. Upon conviction, the court would impose the only legally permissible punishment, being the statutory punishment most favorable to the defendant, that is, a judgment of imprisonment for life.
¶16If the death penalty provisions are invalidated, this case should be remanded for the pronouncement of a judgment of life imprisonment. Where there is no error in the trial of defendant in respect of guilt, a new trial in respect of defendant’s guilt should not be ordered when upon such new trial the State could not under any circumstances obtain a verdict that would result in the pronouncement of a valid death sentence.
¶17The retrial of a capital case, which necessarily requires the expenditure of time and money and imposes great stress and strain upon all who are involved in it, should not be undertaken in the present uncertainty concerning these issues of life and death. Nothing will be lost by deferring our decision in this case until the Supreme Court of the United States has spoken definitively on the crucial questions now before it for decision. We favor that course.