State v. Williams , 276 N.C. 703 ( 1970 )

Bobbitt, C.J., and SHARP, J.,

dissenting as to death sentence.

We vote to vacate the judgment imposing the death sentence. In ■our 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.

The crime was committed on October 7, 1968, when our statutes relating to capital punishment for murder in the first degree were C.S. 14-17 and G.S. 15-162.1. It was and is our opinion that, until the repeal of G.S. 15-162.1 on March 25, 1969, 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), rendered invalid the death penalty provisions of G.S. 14-17. The reasons underlying our opinion have been stated fully in the dissenting opinions 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, and in State v. Hill, 276 N.C. 1, 170 S.E. 2d 885 (1969). See also our dissenting opinion in State v. Roseboro, 276 N.C. 185, 171 S.E. 2d 886, and in State v. Sanders, ante, 598, 174 S.E. 2d 487. Repetition is unnecessary.

G.S. 15-162.1 was repealed by Chapter 117, Session Laws of 1969. The 1969 Act, if construed to provide greater punishment for murder-in the first degree than the punishment provided therefor when the-crime was committed, would, in that respect, be unconstitutional as; ex post facto. 16 Am. Jur. 2d Constitutional Law § 396. In our view, if the death penalty provisions of G.S. 14-17 were invalid on October 7, 1968, when the crime was committed, they were invalid as to this defendant in April, 1969, when he was tried, convicted and sentenced.