State v. McMillan , 233 N.C. 630 ( 1951 )

65 S.E.2d 212 (1951) 233 N.C. 630

STATE
v.
McMILLAN.

No. 649.

Supreme Court of North Carolina.

May 23, 1951.

Harry McMullan, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., and Walter F. Brinkley, Member of Staff, Raleigh, for the State.

Worth H. Hester, R. J. Hester, Jr., Elizabethtown, for defendant appellant.

WINBORNE, Justice.

By assignments of error 5 and 6, predicated upon exceptions 5 and 6, defendant challenges the correctness of these portions of the charge of the court to the jury:

"Under the law of the State at this time, the court instructs you that if you return a verdict of guilty of murder in the first degree as charged in the bill of indictment against the defendant, then you have the right and the power in the exercise of your discretion to accompany that verdict with a recommendation of life imprisonment for the defendant, and the statute giving that right and authority and discretion to the jury, also instructs or provides that it is the duty of the court to instruct the jury that they do have the authority, the right and the power to accompany their verdict of first degree murder with a recommendation of that sort if they feel that under the facts and circumstances of the crime alleged to have been committed by the defendant, they are warranted and justified in making that recommendation. That is a matter to be exercised by you gentlemen, in your own discretion"; and

"If the State has satisfied you upon the evidence beyond a reasonable doubt of the guilt of the defendant of murder in the first degree, it is your duty to so find. If you do so find and in the exercise of your discretion you think it proper to do so, you are authorized to accompany that verdict with the recommendation of life imprisonment for the defendant; if you do not so feel under the facts and circumstances, why then of course it is a matter that addresses itself to you as to whether or not you will make that recommendation."

Defendant contends, and properly so, we hold, that these instructions are erroneous, in that they inveigh against the provisions of the statute, G.S. § 14-17, as amended by 1949 Session Laws of North Carolina, Chapter 299, Section 1, pertaining to punishment for murder in the first degree. This Section, as so amended, reads as follows: "A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed to be murder in the first degree and shall be punished with death: Provided, if at the time of rendering its verdict in open court, the jury shall so recommend, the punishment shall be imprisonment for life in the state's prison, and the court shall so instruct the jury." The proviso embraces the 1949 amendment.

The language of this amendment stands in bold relief. It is plain and free from ambiguity and expresses a single, definite and sensible meaning,—a meaning which under the settled law of this State is conclusively presumed to be the one intended by the Legislature. Asbury v. Town of Albemarle, 162 N.C. 247, 78 S.E. 146, 44 L.R.A., N.S., 1189; Mascot Stove & Mfg. Co. v. Turnage, 183 N.C. 137, 110 S.E. 779; McCanless Motor Co. v. Maxwell, 210 N.C. 725, 188 S.E. 389.

It is patent that the sole purpose of the act is to give to the jury in all cases where a verdict of guilty of murder in the first degree shall have been reached, the right to recommend that the punishment for the crime shall be imprisonment for life in the State's prison. Compare State v. Shackleford, 232 N.C. 299, 59 S.E.2d 825. No conditions are attached to, and no qualifications or limitations are imposed upon, the right of the jury to so recommend. It is an unbridled discretionary right. And it is incumbent upon the court to so instruct the jury. In this, the defendant has a substantive right. Therefore, any instruction, charge or suggestion as to the causes for which the jury could or ought to recommend is error sufficient to set aside a verdict where no recommendation is made.

In the light of these principles, we are of opinion and hold that the cause in the paragraph of the charge first quoted above, reading "if they feel that under the facts and circumstances of the crime alleged to have been committed by the defendant, they are warranted and justified in making that recommendation", and the phrase in the other quoted paragraph reading "under the facts and circumstances", impose unauthorized restrictions upon the discretion vested in the jury.

It may be noted that we are here dealing with a different factual situation from that involved in State v. Johnson, 218 N.C. 604, 12 S.E.2d 278, and those in the cases referred to there in the main opinion of the Court.

The Attorney General for the State, and counsel for defendant cite decisions of the Supreme Court of the United States, and of the courts of last resort in other States treating the subject of recommendation of mercy by a jury, and the effect of such recommendation on question of punishment of the accused. They are of interest, and persuasive, but not controlling here. For annotations on the subject, see 17 A.L.R. 1117, 87 A.L.R. 1362, 138 A.L.R. 1230.

For error pointed out, it is ordered that there be a

New trial.