State v. Conner ( 1955 )

Higgins, J.,

dissenting: The prisoner was charged with murder in the first degree committed in the perpetration of a robbery. The jury returned a verdict of guilty as charged, without recommendation of life imprisonment. After the judge had delivered a charge, admittedly free from error, and after the jurors had been deliberating for 10 minutes, they returned to the courtroom where the following took place:

Court: The officer informed the court that the jury would like to ask a question. What is it ?

Juror Turner: Your Honor, the points may not deserve an answer, or they might not he relevant, but we would like to clear them up.

Court: All right.

Juror Turner: Will this defendant be eligible for a parole if he were given life imprisonment ?

Court: Gentlemen, I cannot answer that question.

Juror Turner: Thank you. The second question: May we inquire about his previous record ?

Court: No, sir, because the defendant’s character was not in issue since he did not go upon the stand or place his character in issue; therefore, there was no evidence as to his previous record or his good character or bad character, because he did not place his character in issue; therefore, there is no evidence as to his character, either way.

Juror Turner: Thank you, sir.

The prisoner excepts to the court’s answer to the question about eligibility for parole in case of life imprisonment. Since the question was asked, the court was confronted with the necessity either of answering the question or declining to answer it. An answer would have required the court to say the prisoner would be eligible for parole. Constitution of North Carolina, Article III, Sec. 6; G.S. 147-43; G.S. 148-58. To have told the jury the prisoner would be eligible for parole in the event of life imprisonment would have been error, in my judgment. It was mandatory, therefore, that the court decline to answer the question.

' This Court has said the jurors have the right in their unbridled discretion to recommend life imprisonment. The right to refuse to make such a recommendation is equally unbridled. For the judge to have told the jury that the question of parole was no concern of theirs and that they should not consider it tends to put a bridle on discretion. It is perfectly plain, or it seems so to me, the jurors wanted no part of the responsibility of allowing the prisoner again to be at large, arm himself, keep in concealment until some other merchant is alone in his place of business, enter, shoot him down, take his money from the cash drawer and from his pocket, and leave him alone in the agony of death.

I regret I am unable to go along with my brethren in the view the prisoner’s rights were prejudiced by the judge’s failure to tell the jury that they should not concern themselves with the question of parole. That is merely another way of declining to answer the question.