State v. Winkle ( 1974 )

CALLISTER, Chief Justice:

The defendant was convicted, by a jury, of first degree murder and sentenced to death by the trial court who, undoubtedly influenced by language contained in some of the nine separate opinions of Furman v. Georgia,¹ refused to allow the jury an opportunity to recommend life imprisonment. At the time of the sentencing Section 76-30-4, U.C.A.19S3 provided:

Every person guilty of murder in the first degree shall suffer death, or, upon the recommendation of the jury, may be imprisoned at hard labor in the state prison for life, in the discretion of the court.

The foregoing statute is not separable ² and this court cannot rewrite it without invading the province of the legislature. In determining the separability of the statute, its history must be taken into account. The instant statute has been the law ever since statehood and prior thereto.³ Its constitutionality has never been challenged until now, due to the Supreme Court’s “decision” in the Furman case.

To say that Furman has created a (expletive deleted) quandary for state legislatures and courts is to put it mildly.⁴ The logical result of deciding that the statute is not separable might lead to the conclusion that, under Furman, the whole statute is unconstitutional,⁵ leaving this State without any penalty for murder in the first degree. Such a result, of course, could not be tolerated and lends justification to the strained reasoning of the trial court and Justice Henriod.⁶

This court should not declare the statute, or a part thereof (death penalty) unconstitutional. Nor are we convinced that the U.S. Supreme Court’s 5-4 per curiam necessarily invalidates our statute in whole or in part. Said per curiam opinion states, . . The court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments . . . ” (emphasis added.) What it would do with our statute is conjectural. It might be observed that the U.S. Supreme Court (with its nine separate opinions) has created the confusion; now let it lead this State and the others out of this morass.

It is the duty of the trial court, and of this court, to proceed in all aspects of the case before us in accordance with the laws of this State; and to arrive at the verdict and to impose the judgment and sentence which are in conformity with the law and justice thereunder.⁷ We so state with the utmost emphasis, notwithstanding our awareness that under the present confusion as to the law due to Furman and related federal decisions, there is the possibility that some aspect of a judgment regularly and correctly arrived at under our law, may not be carried out. If that be so, that is the responsibility of the federal courts and not of the courts of this State.

In accordance with the foregoing, this ' case should be remanded for another trial, allowing the jury the prerogative given by our law, or determining whether they desire to recommend life imprisonment, rather than the death penalty.⁸

ELLETT and TUCKETT, JJ., concur.

1 . 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

2 . Sutherland, Statutory Construction, 4th Ed., Vol. 2, Secs. 44.03, .04 and .07.

3 . Comp.Laws 1876, p. 586, See. 1920.

4 . See concurring opinion of Justice Ellett in State v. James, 30 Utah 2d 32, 36, 512 P.2d 1031 (1973); Vance, The Death Penalty After Eurman, Notre Dame Lawyer, Vol. 48, p. 850; Wheeler, The Eighth Amendment After Furman, 25 Stanford L.Rev., p. 62; and, 86 Harvard L.Rev., p. 76.

5 . Smith v. Carbon County, 95 Utah 340, 343, 81 P.2d 370 (1938).

6 . And the cases cited in his opinion.

7 . This court desires and is cognizant of its responsibility to support the Constitution of the United States. But the protection of the rights and liberties under the Constitution of Utah are equal to and in some instances superior. See Art. I, Secs. 1 to 22. As to cruel and unusual punishment, see Art. I, Sec. 9.

8 . It should be noted that, because of Furman, the Utah State Legislature has repealed 76-30-4 and enacted new statutes, Laws of Utah 1973, Ch. 196, Secs. 76-3-206 and 76-3-207.