State v. Cummings , 1973 N.C. LEXIS 877 ( 1973 )

HUSKINS,. Justice.

Defendant’s first assignment of error is based on exceptions to the solicitor’s argument to the jury that the State was not seeking the death penalty. This assignment requires no discussion, for the disposition of defendant’s second assignment with respect to the judgment is determinative of all matters involved on this appeal.

A sentence of death was pronounced in this case under a misapprehension of the law and must therefore be vacated.

For the reasons stated in State v. Waddell, 282 N.C. 431, 194 S.E. 2d 19 (18 January 1973), the mandatory death penalty for capital offenses may not be constitutionally applied to any offense committed prior to the date of that decision. The Waddell decision was filed on 18 January 1973, and this offense was committed on 2 December 1972. Thus defendant’s death sentence cannot stand. The case must be remanded to the Superior Court of Johnston County for imposition of a sentence of life imprisonment. This procedure accords with many decisions of this Court, including State v. Blackmon, 284 N.C. 1, 199 S.E. 2d 431 (1973); State v. Watkins, 283 N.C. 504, 196 S.E. 2d 750 (1973); State v. Washington, 283 N.C. 175, 195 S.E. 2d 534 (1973); State v. Waddell, supra; State v. Doss, 281 N.C. 751, 191 S.E. 2d 70 (1972); State v. Westbrook, 281 N.C. 748, 191 S.E. 2d 68 (1972); State v. Chance, 281 N.C. 746, 191 S.E. 2d 65 (1972); State v. Hamby and State v. Chandler, 281 N.C. 743, 191 S.E. 2d 66 (1972); State v. Miller, 281 N.C. 740, 190 S.E. 2d 841 (1972).

For the reasons stated, the judgment of the Superior Court of Johnston County insofar as it imposed the death penalty upon this defendant is reversed. The case is remanded to the Superior Court of Johnston County with directions to proceed as follows:

1. The presiding judge of the Superior Court of Johnston County will cause to be served on the defendant James Monroe Cummings, and on his counsel of record, notice to appear during a session of said Superior Court at a designated time, not less than ten days from the date of the notice, at which time, in open court, the defendant James Monroe Cummings, being present in person and being represented by his counsel, the presiding judge, based on the verdict of guilty of murder in the first degree returned by the jury'at the trial of this case at the 19 March 1973 Session, will pronounce judgment that the defendant James Monroe Cummings be imprisoned for life in the State’s prison.

2. The presiding judge of the Superior Court of Johnston County will issue a writ of habeas corpus to the official having custody of the defendant James Monroe Cummings to produce him in open court at the time and for the purpose of being present when the judgment imposing life imprisonment is pronounced.

Remanded for Judgment.