¶1concurring.
¶2I concur in all parts of the opinion of Justice Huskins. In view of the length of the dissenting portion of the opinion of the Chief Justice and of the number of authorities cited therein, and because of the importance of the issue, I deem it advisable to state, as briefly as possible, why I do not find its argument persuasive or the citations convincing upon the question with which the opinion of Justice Huskins deals.
¶3The jury having returned a verdict of guilty of rape without making a recommendation that the defendant’s punishment be life imprisonment, a sentence to death was imposed by the trial court pursuant to G.S. 14-21. It is, therefore, our duty to determine the effect now to be given that statute by the courts of North Carolina. We may not properly bypass that task, nor escape our responsibility for it by labeling the question one of policy for determination by the Legislature.
¶4The Supreme Court of the United States being the higher authority on the validity of judgments under the Constitution of the United States, its mandates, issued in reliance upon Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed. 2d 346, vacating the death sentences previously affirmed by this Court in the five cases cited in the opinion of Justice Huskins, became the law of those five cases. Under the compulsion of those mandates, this Court remanded those cases to the respective superior courts for the imposition of sentences of life imprisonment.
¶5*449The present case, on the contrary, is before us for the first time. In it we have no mandate from the Supreme Court of the United States vacating the death sentence imposed upon this defendant. In the absence thereof, it is our duty, not that of the Legislature, to determine just what the United States Supreme Court decided in Furman v. Georgia, supra,and to determine the present state of the law of North Carolina with reference to punishment for the crime of rape in the light of that decision.
¶6Only this Court can determine whether any portion of G.S. 14-21 is the law of North Carolina today and, if so, which portion. The Legislature, now in session, cannot make that determination. The Legislature can determine what the law of this State ought to be and shall be in the future. That is policy making and that is the Legislature’s prerogative and responsibility. It is for us, and for us alone, to determine what part of G.S. 14-21, if any, is the law of North Carolina today and determinative of the validity of the sentence from which this defendant appeals. That is not policy making but the interpretation of the statute — an exercise of the judicial function which we may not abdicate or assign to the Legislature. Constitution of North Carolina, Art. I, § 6; Art. IV, § 1.
¶7It is quite clear, as the opinion of Justice Huskins plainly states, that it is for the Legislature, not for this Court, to determine the policy of this State as to what acts shall be deemed crimes and as to the punishment therefor; that is, to determine what punishment ought to be and shall be imposed for the offense of rape hereafter committed. Constitution of North Carolina, Art. I, § 6; Art. II, § 1; Art. XI, § 2. But the Legislature has spoken in G.S. 14-21 and, until it speaks again, it is the duty of this Court to determine what, if anything, remains of its pronouncement in G.S. 14-21 after the decision in Furman v. Georgia, supra.No officer or agency, save this Court, can make that determination.
¶8The determination of that question as stated in the opinion of Justice Huskins is, in my view, unassailably correct. If the Legislature, now sitting, deems the result of our determination is unwise, as a matter of policy, it may, as to rapes hereafter committed, adopt and promulgate a different rule as to punishment. That is its responsibility, not ours.
¶9*450The opinion of the Chief Justice states:
“If Furmanhad decided that the portion of G.S. 14-21 quoted above was separable and invalid and that death is now the sole and exclusive punishment for rape, such decision would apply to all rapes committed subsequent to 29 June 1972, the date Furmanwas decided. But this was not the decision in Furman.”
¶10Of course, it was not, for the simple reason, if for none other, that the Supreme Court of the United States does not have the authority to decide that question. Whether a statute is separable or inseparable is a question of statutory interpretation. It is well settled that the interpretation of a state statute is a question to be determined by the supreme court of the state. The Supreme Court of the United States has repeatedly accepted as binding upon it the interpretation placed upon state statutes by the highest courts of such states.
¶11Thus, the Supreme Court of the United States has not said, and may not properly determine that G.S. 14-21 is or is not separable. What it has said in Furman v. Georgia, supra,is that the discretion which the proviso in G.S. 14-21 undertook to vest in North Carolina juries cannot be conferred upon them consistently with the Fourteenth Amendment. It having so held, it is now the prerogative and duty of this Court, and this Court alone, to determine whether the proviso is severable from the original statute unto which the proviso was attached by amendment in 1949. Thus, it is the date of the decision of that question by this Court — today—not the date of the decision in Furman v. Georgia, supra,which fixes the offenses of rape for which a death sentence may be imposed without running afoul of the Ex Post Facto principle.
¶12The opinion of the Chief Justice further states:
“Furman simply held that the death penalty provision of G.S. 14-21 as now constituted was invalid and that, absent amendment, no death sentence can be constitutionally imposed and carried out.”
¶13I do not find the words, “absent amendment,” in any of the nine opinions by the justices in Furman v. Georgia, supra,nor in the per curiam statement of the decision therein. Furman v. Georgia, supra,did not hold “the death penalty provision of *451G.S. 14-21” invalid. It held, as the opinion of Justice Huskins states, that the death penalty cannot be imposed at a time when juñes or judges are given the discretion to impose the death penalty on one defendant and life imprisonment on another for the same offense — quite a different thing.
¶14I am unable to agree with the reasoning by which the Chief Justice reaches the conclusion that the defeat in 1971 of the legislative proposal to abolish the death penalty for rape and make life imprisonment the mandatory punishment therefor now compels us to hold that, since Furman v. Georgia supra,life imprisonment has become the mandatory punishment for the crime. Quite obviously, the 1971 Legislature preferred, as a matter of policy, to leave North Carolina juries in possession of the discretion which the 1949 amendment to G.S. 14-21 attempted to give them. It seems to me perfectly clear that the 1971 Legislature did not believe the then prophecy that the United States Supreme Court would decide as it did in Furman v. Georgia, supra.As the opinions of the four dissenting justices in Furman v. Georgia, supra,show, the earlier decisions of the Court afforded ample basis for such legislative disbelief. However, in any event, the Chief Justice’s opinion, if adopted by this Court, would result in our declaring G.S. 14-21 now to mean precisely what the 1971 Legislature expressly refused to make it say. This we may not do. The Legislature of 1971 obviously wanted the whole of G.S. 14-21, including the proviso, which it believed constitutionally permissible, but this is far from showing it wanted the whole or nothing. It certainly fails to show that, if unable to have the whole, it wanted the part which it refused to adopt, standing alone, in preference to the part which it refused to repeal.
¶15The array of decisions from other states, cited in the opinion of the Chief Justice, are simply in point on the question of the severability of G.S. 14-21. In the first place, substantially all of them, if not all, held only that the death penalty may not be imposed by a state in a case which arose and was adjudicated while the state undertook to give its juries the discretion which Furman v. Georgia, supra,held cannot be vested in juries. In so holding these decisions do not conflict with the opinion of Justice Huskins. In the second place, of all the cited decisions only those from Mississippi and Florida appear to contain any discussion of the question of the severability of the various state statutes involved and the Mississippi and Florida decisions *452appear to rest on the acceptance by those courts of the view that their statutes were severable and the life sentence provisions therein were the parts which survived the decision in Furman v. Georgia, supra.In the third place, decisions from other states as to the severability of their statutes cannot help us materially in determining whether our own statute is sever-able, even if the wording of the statutes be identical, because the legislative history of the respective statutes may well be quite different. As the opinion of Justice Huskins demonstrates, the history of G.S. 14-21 leads to the conclusion that the proviso, added by the amendment of 1949, is severable from the remainder of the statute.
¶16It is one thing to hold, as the Mississippi and Florida Courts appear to have done, that a statute like G.S. 14-21 is severable and the part which survives Furman v. Georgia, supra,is that providing for a life sentence. This would, as Justice Huskins has demonstrated, simply be a most strained and improbable view of the intent of the North Carolina Legislature in the light of its repeated refusals to abolish capital punishment. It is a far different thing to say, as the opinion of the Chief Justice suggests, that G.S. 14-21 is an inseparable whole.
¶17If this view suggested in the opinion of the Chief Justice were correct, it would necessarily follow that the imposition of a sentence to imprisonment for life would be unlawful. It is well settled, as shown by the authorities cited by Justice Hus-kins, that if the provisions of a statute are, indeed, so interrelated that they are an inseparable whole, the statute cannot be partly unconstitutional and partly constitutional. Quite obviously, the effect of Furman v. Georgia, supra,is that G.S. 14-21 is not, in its entirety, constitutional. If it be inseparable, then the entire statute would fall under the impact of Furman v. Georgia, supra,and G.S. 14-21 would authorize no sentence whatever. In that event, rape being a felony at common law and no specific punishment being provided by a valid statute, G.S. 14-2 would apply and the maximum sentence for rape would be imprisonment for ten years plus a fine.
¶18Of course, the real thrust of the opinion of the Chief Justice is not that G.S. 14-21 is inseparable but that it is separable and that the proviso is the surviving portion. This I find inconsistent with the legislative history of the statute, correctly set forth by Justice Huskins.
¶19concurring in result.
¶20A Court opinion must reflect the views of the majority of the Court. A concurring in result opinion may reflect the individual views of the writer.
¶21In my opinion, Furman v. Georgia, 408 U.S. 238, 33 L.Ed. 2d 346, does not work any change in North Carolina trial procedure. The decision deals with punishment only. Hence in what are now our four capital felonies the trial court should, as in other cases, omit any reference to punishment and charge on the constituent elements of the offenses and instruct the jury under what circumstances a verdict of guilty should be returned. As a result of the Court’s holding in Fwman, a charge on the right of the jury to recommend life imprisonment is now an idle gesture and should be omitted. The recommendation is not authorized until the jury unequivocally finds guilt. A conviction without a jury recommendation now requires life imprisonment and permits nothing more.
¶22After discussing the effect of the 1949 amendment giving the jury power to recommend life imprisonment in our four capital felony cases, the majority opinion concludes: “It is the proviso, and the proviso alone, which creates the discretionary *475difficulty condemned by the Furmandecision; and it is quite clear that Furmanstrikes down the proviso as violative of the Eighth and Fourteenth Amendments.”
¶23I do not so interpret the effect of Furman. That decision does not strike down the proviso and does not hold that it violates the Eighth and Fourteenth Amendments. Furmanholds that after the jury determines guilt and the State law permits either the court or the jury discretion whether the punishment shall be death or life imprisonment, life imprisonment must be imposed. Where discretion is given, Furmanholds that a life sentence is valid but strikes down the death penalty. The rationale of the rule seems to be that if discretion between a death sentence or life imprisonment is given either to the court or the jury, the milder punishment must be imposed because in the interpretation of criminal statutes that which is the more favorable to the accused must be accepted.
¶24The fixing of punishment for crime is a legislative function. The General Assembly, in my view, may fix death as the punishment for either or all of the four offenses named in Article XI, Section 2 of the North Carolina Constitution. The Legislature may provide the death penalty or it may provide life imprisonment, but when it undertakes to give an option, the milder judgment must be imposed.
¶25In my opinion, this Court can no more strike out the proviso for life imprisonment than it can strike out the death penalty. Both provisions were inserted in the law by the General Assembly. I am unfamiliar with any authority this Court has to legislate on the subject by repealing either provision.
¶26This further objection to the opinion: After the Court has “eliminated” the right of the jury to recommend life imprisonment in this case, the Court further decrees that capital punishment shall be restored after this Court’s opinion is handed down. This holding seems to be required in order that the Court may dig itself out of the hole it fell into by its holding that Furman“strikes down the proviso as violative of the Eighth and Fourteenth Amendments.” Furman, as I understand it, holds that life imprisonment is valid, but because of the option, Furmanstrikes down the death penalty.
¶27Since writing the above I have read the well documented opinion of the Chief Justice. I fully concur therein.