State v. Williams

212 S.E.2d 113 (1975) 286 N.C. 422

STATE of North Carolina
v.
Bryant Henry WILLIAMS, Jr.

No. 25.

Supreme Court of North Carolina.

March 12, 1975.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Thomas B. Wood, Raleigh, for the State.

W. Arnold Smith, Raleigh, for defendant.

LAKE, Justice.

Approximately two-thirds of the defendant's brief is directed to his Assignment of Error No. 1, which reads:

"The Court erred in allowing the Solicitor to ask members of the jury panel questions regarding their moral or religious scruples about the death penalty in that such question eliminated all prospective jurors approved [opposed?] to capital punishment and denied defendant the right to be tried by a cross-section of his peers."

It is not clear from the defendant's brief whether his attack upon the trial, under this assignment of error, is directed to the trial court's permitting the Solicitor to ask questions of prospective jurors concerning their views as to the death penalty, or to the trial court's sustaining of challenges for cause by reason of the responses made to such questions. In either view of it, this assignment of error is completely lacking in merit.

The defendant does not challenge the procedures whereby the jury panel was selected and summoned, nor does the record contain any suggestion of a basis for such challenge. The statutory procedures for its selection having been followed, the jury panel, in its entirety, was a representative cross-section of the people of Wake County. Of the 38 prospective jurors examined in the selection of the 12 who rendered the verdict and two alternates, only four indicated their opposition to the imposition of a death sentence in a proper case therefor.

The defendant, in his brief, makes the startling observation that a jury's verdict finding a defendant guilty need not be unanimous, so the denial of the State's challenge to a juror, who under no circumstances would vote for a verdict of guilty of an offense for which the prescribed punishment is death, would not necessarily prevent the State from obtaining such a verdict. In Apodaca v. Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32 L. Ed. 2d 184, and Johnson v. Louisiana, 406 U.S. 356, 92 S. Ct. 1620, 32 L. Ed. 2d 152, a sharply divided Supreme Court of the United States, a majority of which was unable to agree upon an opinion, sustained sentences imposed by state courts pursuant to verdicts of guilty reached by juries not unanimous. Neither of these was a capital case. Whether or not the Fourteenth Amendment to the Constitution of the United States prevents a state from imposing a death sentence upon a defendant convicted of a capital crime by a jury not unanimous, we need not now determine. It has never been doubted that the Constitution of this State requires a unanimous verdict for a valid conviction for any crime. Article I, § 24, of the Constitution of North Carolina provides:

"Right of jury trial in criminal cases. No person shall be convicted of any crime but by the unanimous verdict of a jury in open court. The General Assembly may, however, provide for other means of trial for misdemeanors, with the right of appeal for trial de novo."

From time immemorial it has been standard practice in this State for prosecuting attorneys in capital cases to interrogate prospective jurors concerning their opposition, if any, to the imposition of the death penalty.

The State, like the defendant, is entitled to a jury, all members of which are free from a preconceived determination to vote contrary to its contention concerning the defendant's guilt of the offense for which he is being tried. See, Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776. To that end, the State, like the defendant, is allowed certain peremptory challenges to prospective jurors, nine being allowed the State for each defendant in a capital case and 14 being allowed each such defendant. G.S. § 9-21(b). In order to permit intelligent exercise of peremptory challenges, as well as to determine the existence of basis for a challenge for cause, wide latitude must be allowed counsel in the interrogation of prospective jurors. In State v. Britt, 285 N.C. 256, 267, 204 S.E.2d 817, 825, Justice Branch, speaking for a unanimous Court, said:

"It is well established by our decisions and the decisions of the federal courts that in a capital case both the State and the defendant may, on the voir dire examination of prospective jurors, make inquiry concerning a prospective juror's moral or religious scruples, his beliefs and attitudes toward capital punishment, to the end that both the defendant and the State may be insured a fair trial before an unbiased jury. [Citations omitted.] A prospective juror's response to such inquiry by counsel may disclose basis for a challenge for cause or the exercise of a peremptory challenge. The extent of the inquiries, of course, remains under the control and supervision of the trial judge."

In State v. Jarrette, 284 N.C. 625, 638, 202 S.E.2d 721, 730, this Court said:

"We have held many times that there is no error in permitting questions to be propounded to prospective jurors concerning their views about the death penalty. State v. Rogers, 275 N.C. 411, 168 S.E.2d 345; State v. Yoes, and State v. Hale [271 N.C. 616, 157 S.E.2d 386]; State v. Spence, 271 N.C. 23, 155 S.E.2d 802."

A total of 38 prospective jurors was examined. The State challenged a total of eight of these, three for cause and five peremptorily, including four who stated no objection to the death penalty. The defendant challenged 14 peremptorily and two for cause. Each of the three prospective jurors challenged for cause by the State said, in response to questions by the Solicitor and by the Court, that even though the evidence satisfied her beyond a reasonable doubt of the defendant's guilt of the offense of rape, she could not vote for such a verdict knowing that the death penalty was required thereupon. Under these circumstances, it was not error to sustain the Solicitor's challenge for cause. Witherspoon v. Illinois, supra; State v. Ward, 286 N.C. 304, 210 S.E.2d 407; State v. Sparks, 285 N.C. 631, 207 S.E.2d 712; State v. Honeycutt, 285 N.C. 174, 203 S.E.2d 844; State v. Crowder, 285 N.C. 42, 203 S.E.2d 38; State v. Noell, 284 N.C. 670, 202 S.E.2d 750; State v. Jarrette, supra; State v. Anderson, 281 N.C. 261, 188 S.E.2d 336; State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572; State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241. Furthermore, had these three challenges for cause not been sustained, the Solicitor could have challenged all of these jurors peremptorily without reaching his limit of nine such challenges.

The defendant's Assignments of Error No. 9 and No. 11 are directed to the denial of the defendant's motions for a judgment of nonsuit and for a directed verdict. These assignments of error are patently without merit. The evidence for the State was abundantly sufficient to permit the jury to find that the offense of rape was perpetrated upon the prosecuting witness and that the defendant was the perpetrator of it. It is elementary that, upon a motion for judgment of nonsuit, or for a directed verdict, the evidence for the State is taken to be true and the State is entitled to every reasonable inference which may be drawn therefrom, contradictions and discrepancies in the State's evidence are disregarded and the evidence of the defendant in conflict with that of the State is not taken into consideration. Strong, N.C. Index 2d, Criminal Law, § 104, and the numerous cases there cited. It is also elementary that upon the consideration of such a motion, evidence for the State, even though improperly admitted, is taken into account. State v. Cutler, 271 N.C. 379, 156 S.E.2d 679; State v. Walker, 266 N.C. 269, 145 S.E.2d 833; State v. Virgil, 263 N.C. 73, 138 S.E.2d 777. The motion for judgment of nonsuit and the motion for a directed verdict of not guilty have the same legal effect. State v. Britt, supra; State v. Glover, 270 N.C. 319, 154 S.E.2d 305.

The defendant's Assignment of Error No. 14 is to the imposition of the sentence of death upon the verdict of guilty of rape. The defendant's contentions with respect to the validity of the death sentence for rape have been carefully considered and found without merit by this Court in a number of recent decisions. See: State v. Noell, supra; State v. Jarrette, supra; State v. Waddell, 282 N.C. 431, 194 S.E.2d 19. It would serve no useful purpose to repeat here the reasons for that determination.

At the time this offense was committed and at the time the defendant was tried, convicted and sentenced to death, G.S. § 14-21, as construed by this Court in State v. Waddell, supra, made a sentence to death mandatory upon every person convicted of the rape of any female of the age of 12 years or more by force and against her will. Chapter 1201 of the Session Laws of 1973, § 2, ratified 8 April 1974, rewrote G.S. § 14-21. As rewritten, the statute now makes provision for first degree rape, for which the punishment "shall be death," and for second degree rape, for which the punishment shall be "imprisonment in the State's prison for life, or for a term of years, in the discretion of the court."

The same Act also rewrote G.S. § 14-17, dealing with murder, G.S. § 14-52, dealing with burglary, G.S. § 14-58, dealing with arson, G.S. § 148-58, dealing with the parole of prisoners, and G.S. § 14-2, dealing with the punishment of persons convicted of felonies for which no specific punishment is prescribed by statute. Section 8 of the Act provides:

"This act shall become effective upon ratification and applicable to all offenses hereafter committed."

(Emphasis added.)

The Act was ratified, and thus became effective, 8 April 1974 and is, in its entirety, "applicable" to all offenses thereafter committed.

The defendant contends that this statute is retroactive so as to make unlawful the imposition upon this defendant of a sentence to death, since the prosecuting witness, at the time of the offense, was more than 12 years of age, her submission was not procured by the use of a deadly weapon and serious bodily injury (other than the rape, itself) was not inflicted upon her and, therefore, the offense falls within the definition of second degree rape contained in Section 2(b) of the above mentioned Act of 1974.

This contention requires us to construe Section 8 of the 1974 Act. It is our authority and duty, in capital cases as in other cases, to apply a valid statute so as to give to it the meaning and effect intended by the Legislature at the time of its enactment. Throughout the years, rules of statutory construction have been evolved and declared whereby courts are to determine such legislative intent. They apply to capital cases just as to other cases. Because of the gravity of a capital case, both in its consequences to the defendant and in the consequences to the State of the offense with which the defendant is charged, this Court always considers the record and the legal contentions in such case with special care, but in a capital case, just as in any other case, we are not at liberty to disregard established principles of law in arriving at the intent of the Legislature in enacting a statute, nor, having determined that intent, may we properly refuse to give it effect.

We find no merit in this contention of the defendant. In clear, explicit terms the Legislature provided, "This act shall become * * * applicable to all offenses hereafter committed." Had these words been omitted, the Act would, nevertheless, apply to all offenses committed after its effective date, 8 April 1974. Consequently, these words were not used for the purpose of giving the Act that effect. It is a well established principle of statutory construction that a statute must be construed, if possible, so as to give effect to every part of it, it being presumed that the Legislature did not intend any of its provisions to be surplusage. State v. Harvey, 281 N.C. 1, 19, 187 S.E.2d 706; Clark v. Carolina Homes, 189 N.C. 703, 710, 128 S.E. 20; State v. Barksdale, 181 N.C. 621, 625, 107 S.E. 505.

In State v. Broadway, 157 N.C. 498, 72 S.E. 987, a statute, providing for the punishment of the crime of incest, was amended so as to increase the penalty. The amending act provided that the amendment should be in force "from its ratification." This Court, speaking through Chief Justice Clark, said:

"The change in the punishment took effect only, by terms of the statute, ``from its ratification,' and hence did not apply to an offense which was committed prior to its enactment. Repeals by implication are not favored by the law. In this case there is neither express repeal of any part of the statute nor any repeal by implication. The statute stands intact as it was; the Legislature simply adding ten years to the quantum of the punishment which the judge might impose. This additional ten years was to take effect in the future, and indeed under the constitutional provision forbidding ex post facto laws such additional punishment could not have been applied to such crime unless committed after the act."

In 73 Am.Jur.2d, Statutes, § 422, it is said:

"Where a repealing statute contains a saving clause as to crimes committed prior to the repeal, or as to pending prosecutions, the offender may be tried and punished under the old law. * * *

"Similarly, where amendatory legislation carries a saving clause as to prior offenses * * * the law as it stood at the time of the offense is applied to the prosecution and sentencing of the violator."

We construe the provision in the 1974 Act, "This act shall become * * * applicable to all offenses hereafter committed" as a saving clause, showing the intent of the Legislature to leave the preexisting statute in effect as to the elements of and punishment for the crime of rape committed prior to 8 April 1974. Otherwise, that provision of the Act would be a mere meaningless redundancy.

In 73 Am.Jur.2d, Statutes, § 250, it is said:

"In the interpretation of a statute, the legislature will be presumed to have inserted every part thereof for a purpose. Thus, it should not be presumed that any provision of a statute is redundant. The statute should not be construed in such manner as to render it partly ineffective or inefficient if another construction will make it effective. Indeed, it is a cardinal rule of statutory construction that significance and effect should, if possible, without destroying the sense or effect of the law, be accorded every part of the act, including every section, paragraph, sentence or clause, phrase, and word."

In 82 C.J.S. Statutes § 419, it is said:

"A statute will not be construed to operate retrospectively so as to take away a penalty or condone a crime unless such intention is clearly expressed."

In State v. Perkins, 141 N.C. 797, 808, 53 S.E. 735, 739, this Court said:

"It can make no difference how the intention of the Legislature, that an act should have prospective operation, is expressed; whether it is done by unequivocal terms in the act or by a proviso, or is to be gathered from its general scope and tenor, so that it appears with sufficient clearness that such is the intention."

In that case and again in State v. Harvey, supra, this Court quoted, with approval, the following statement from the opinion of the Court of Appeals of Virginia in Pegram's Case, 28 Va. 569:

"A punishment affixed to an offense prior to the first of May, 1828 [the effective date of an amending statute], is not incompatible with a different punishment, either lighter or more severe, affixed to the same offense subsequent to that date. They may well stand together. The punishment prescribed by Laws 1827-'28 being different from that prescribed by Laws 1822-'23, is certainly an implied repeal of it, as to new offenses, from the time it goes into effect; but, by the very terms of the law, the new punishment is only applied to the offenses happening after 1 May, 1828, leaving the old punishment to be applied to the offenses happening before that day."

In State v. Harvey, supra, 281 N.C. at page 20, 187 S.E.2d at page 718, we said:

"The same criminal offenses exist under the Controlled Substance Act as existed under the former Articles 5 and 5A of Chapter 90 of the General Statutes. The provisions for punishment under the new act are different from those contained in the former act. Thus, if the saving clauses contained in G.S. 90-113.7 do not save the punishment provisions of the former act, they are useless and redundant."

We do not perceive how effect can be given to the express declaration that the Act of 1974 "shall become * * * applicable to all offenses hereafter committed," unless it be construed to mean that the Act has no application to offenses committed prior to its effective date, 8 April 1974. We so construe it.

The defendant's remaining Assignments of Error, Nos. 2, 3, 4, 5, 6, 7, 8, 10, 11 and 12 relate to the admission of testimony by various witnesses for the State and to the Solicitor's cross-examination of the defendant's witnesses, Mrs. Williams and Mrs. Barefoot. All of these bits of testimony were trivia. We have carefully considered them all and the surrounding testimony, as shown by the record. We find no error in the rulings of the trial judge, certainly none which could conceivably be deemed to entitle the defendant to a new trial. Had all of these ten bits of testimony been kept from the jury, it is inconceivable that, in view of the overwhelming mass of evidence as to the perpetration of the offense and the identity of the defendant as the perpetrator of it, the jury would not have reached the same verdict. No useful purpose would be served by a detailed discussion of any of these assignments. They are overruled.

No error.

EXUM, Justice, dissenting as to the sentence of death:

While I concur with the majority opinion insofar as it affirms the conviction of the defendant for the crime of rape, I dissent from that portion of the opinion which affirms the judgment imposing a sentence of death. The majority holds that the death sentence can be imposed in this case by virtue of the majority holding in State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1972), and Section 8 of Chapter 1201 of the 1973 Session Laws. I disagree with the interpretation given to Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) by the majority in Waddell and with the effect given to Section 8.

The majority in Waddell correctly interpreted the opinions of five of the United States Supreme Court Justices in Furman to mean that the imposition of the death penalty in North Carolina under our state's then existing capital punishment statutes was unconstitutional. Waddell held that all otherwise capital offenses committed in this state before the date of its decision (18 January 1973) were punishable only by life imprisonment. The Superior Court of Sampson County was ordered to sentence the defendant Waddell to life imprisonment.

The question which this Court in Waddell then addressed was whether and under what circumstances the death penalty might thereafter be imposed in this state. The majority felt that this Court could make that determination. It held that capital crimes which before Furman were punishable by death or life imprisonment were, if committed before Waddell, punishable only by life imprisonment, and, if committed after Waddell, punishable only by death.

After Furman it was, in my opinion, initially for the General Assembly of North Carolina and not this Court to determine as a matter of policy whether and under what circumstances the death sentence should be reinstated in this state. N.C.Const. art. XI, §§ 1, 2. Before Waddell and Furman one convicted of a capital crime was sentenced to death unless the jury recommended a sentence of life imprisonment. Thus our legislature, recognizing there would be cases when a person guilty of one of these crimes ought not to suffer death, permitted the jury mercifully to intervene. It has not been the policy of this state since 1949 automatically to execute everyone convicted of a capital crime. See 1949 Sess.Laws, Chap. 299, §§ 1-3. The majority of this Court in Waddell through its interpretation of Furman created such a policy. Only the legislature, in my view, had the prerogative initially to do that.

I agree with the proposition in Justice Lake's concurring opinion in Waddell, 282 N.C., at 449, 194 S.E.2d 19, that in the aftermath of Furman it was the duty of this Court to determine its effect upon this state's capital punishment laws. I would have concluded, however, that the effect of Furman was simply to prohibit the imposition of the death penalty in North Carolina and that only life imprisonment, the other available statutory penalty, could be imposed upon persons convicted of otherwise capital crimes.

The five majority opinions in Furman seem to be an effort to restrict, not expand, the circumstances under which the death penalty can be imposed. Indeed Justices Brennan and Marshall believe that under no circumstances could its infliction comport with the Eighth Amendment to the United States Constitution. Justice Brennan also wrote:

"[A]lthough ``the death penalty has been employed throughout our history,' Trop v. Dulles, 356 U.S. 86, at 99, 78 S.Ct. [590], at 597 [2 L. Ed. 2d 630 at 641], in fact the history of this punishment is one of successive restriction. What was once a common punishment has become, in the context of a continuing moral debate, increasingly rare." Furman v. Georgia, supra, 408 U.S., at 299, 92 S. Ct., at 2757, 33 L.Ed.2d at 383.

Justice White pointed out:

"The short of it is that the policy of vesting sentencing authority primarily in juries — a decision largely motivated by the desire to mitigate the harshness of the law and to bring community judgment to bear on the sentence as well as guilt or innocence — has so effectively achieved its aims that capital punishment within the confines of the statutes now before us has for all practical purposes run its course." 408 U.S., at 313, 92 S.Ct., at 2764, 33 L. Ed. 2d at 392.

To interpret Furman in a way that would, in effect, reverse this trend is contrary to the thrust of the views of a majority of the United States Supreme Court.

Neither do I find the same comfort in Section 8 of Chapter 1201 of the 1973 Session Laws as does the majority. To put this defendant to death for a crime which if committed today could be punished only by imprisonment for life or for a term of years, in the discretion of the trial judge, G.S. § 14-21(b), is arbitrary, unconscionable, cruel, and unusual. If the legislature intended by enactment of Section 8 to permit such a result, then this section plainly violates the constitutional prohibitions against cruel and unusual punishment. U.S.Const. amend. VIII; N.C.Const. art. I, § 27. These constitutional prohibitions require, in my opinion, that a legislative body which determines to abolish the death penalty for any given crime do so both prospectively and retroactively so that all persons who stand convicted and sentenced for that crime but who have not yet been executed will receive the benefit of the abolition.

I vote to affirm the conviction and to remand this case to the Superior Court of Wake County for the purpose of vacating the sentence of death heretofore imposed and imposing instead a sentence of life imprisonment upon this defendant.

COPELAND, Justice, dissenting as to death penalty.

With extreme reluctance, I find it necessary to dissent from the affirmance of that portion of the judgment sentencing defendant to death. With all due respect to the present members of this Court who constituted the majority in State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973), and State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974), I am not of the opinion that the impact of Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) on G.S. §§ 14-17 (first degree murder), 14-21 (rape), 14-52 (first degree burglary), and 14-58 (arson), as they were written prior to 8 April 1974, the effective date of Chapter 1201, 1973 Session Laws, was to require the mandatory imposition of death sentences.

Article 1, Section 6, of the North Carolina Constitution declares that "[T]he legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other." (Emphasis supplied.) Under Article XI, Sections 1 and 2, of the North Carolina Constitution, the General Assembly is authorized to provide that the crimes of murder, rape, burglary, and arson, and only these crimes, may be punishable by death. Accordingly, I do not believe that the death penalty may be imposed under our State Constitution unless and until our General Assembly so declares it by legislative act. In my opinion, Furman v. Georgia did not repeal the discretionary provisions of G.S. §§ 14-17, 14-21, 14-52, and 14-58. What it did was to declare unconstitutional the imposition of the death penalty under those statutes as then written. It did not rewrite those statutes. Therefore, the North Carolina General Assembly, not this Court, was the only constitutional branch of our tripartite system of State Government vested with the authority to redraft those statutes in a manner that would make the imposition of death constitutionally permissible.

In summary, my views on this matter are in complete accord with those expressed by Justice Sharp (now Chief Justice) in her dissenting opinion to State v. Waddell:

"In my view, there are no constitutional infirmities in capital punishment per se and, under the conditions prevailing today, I do not consider the death penalty cruel and unusual punishment for the crimes for which the State Constitution authorizes the General Assembly to prescribe it. Thus, were I to permit my personal views on capital punishment as a State policy to dictate my decision in this case, I would have voted with the majority. This, however, I am not at liberty to do." 282 N.C. 431, 476, 194 S.E.2d 19, 47-48.

In this regard, I note that the adjourned session of the 1973 North Carolina General Assembly, presumably in response to State v. Waddell, elected to amend all of our capital statutes. Chapter 1201, 1973 Session Laws. This Act, effective 8 April 1974, provides for capital punishment in cases of first degree murder and first degree rape. See G.S. §§ 14-17 and 14-21(a)(1) and (2). This Act further provides that any person convicted of second degree rape "shall be punished by imprisonment in the State's prison for life, or for a term of years, in the discretion of the court." G.S. § 14-21(b). It further provides that any person convicted of burglary in the first degree or of arson "shall be imprisoned for life in the State's prison." G.S. §§ 14-52, 14-58. Section 8 of the Act provides: "This act shall become effective upon ratification and applicable to all offenses hereafter committed." (Emphasis added.) I agree with Justice Lake in the majority opinion that the language used in the saving clause is written in clear and explicit terms and that it could not apply to crimes committed prior to 8 April 1974.

It is my firm conviction that the punishments provided for in Chapter 1201, 1973 Session Laws, are constitutionally permissible under both our Federal and State Constitutions. For this reason, I am prepared to apply these laws as written to all the offenses enumerated therein and committed on or after 8 April 1974, the date of ratification.

For the reasons above noted, I dissent as to punishment and vote to remand for the imposition of a sentence of life imprisonment.

SHARP, Chief Justice, dissenting as to the death penalty:

The rape for which defendant was convicted occurred on 16 May 1973, a date during the period between 18 January 1973, the day of the decision in State v. Waddell, 282 N.C. 431, 194 S.E.2d 19, and 8 April 1974, the day on which the General Assembly rewrote G.S. § 14-21 by the enactment of Chapter 1201 of the Session Laws of 1973. For the reasons stated by Chief Justice Bobbitt in his dissenting opinion in State v. Jarrette, 284 N.C. 625, 666, 202 S.E.2d 721, 747—an opinion in which Justice Higgins and I joined—, I dissent as to the death sentence imposed upon defendant by the court below and vote to remand for the imposition of a sentence of life imprisonment. See also the dissenting opinion of Chief Justice Bobbitt, and my concurrence therein, in State v. Waddell, supra, 282 N.C. at 453 and 476, 194 S.E.2d at 30 and 47.

I also dissent as to the death penalty in this case for the additional reasons stated below.

Prior to 8 April 1974 the crime of rape was defined and punished by G.S. § 14-21 as follows: "§ 14-21. Punishment for rape. — Every person who is convicted of ravishing and carnally knowing any female of the age of twelve years or more by force and against her will, or who is convicted of unlawfully and carnally knowing and abusing any female child under the age of twelve years, shall suffer death: Provided, if the jury shall so recommend at the time of rendering its verdict in open court, the punishment shall be imprisonment for life in the State's prison, and the court shall so instruct the jury."

Section 2 of Chapter 1201, Session Laws of 1973 (quoted below), rewrote G.S. § 14-21 to divide rape into two degrees with different punishments.

"§ 14-21. Rape; punishment in the first and second degree. — Every person who ravishes and carnally knows any female of the age of twelve years or more by force and against her will, or who unlawfully and carnally knows and abuses any female child under the age of twelve years, shall be guilty of rape, and upon conviction, shall be punished as follows:

(a) First degree rape:

(1) If the person guilty of rape is more than sixteen years of age, and the rape victim is a virtuous female child under the age of twelve years, the punishment shall be death; or

(2) If the person guilty of rape is more than sixteen years of age, and the rape victim had her resistance overcome or her submission procured by the use of a deadly weapon, or by the infliction of serious bodily injury to her, the punishment shall be death.

(b) Second degree rape — Any other offense of rape defined in this section shall be a lesser-included offense of rape in the first degree and shall be punished by imprisonment in the State's prison for life, or for a term of years, in the discretion of the court."

Under Chapter 1201, only two crimes are now punishable by death, namely, first degree murder and first degree rape. The death penalty previously provided for arson and first degree burglary was changed to life imprisonment.

In recognition of the fact that the question whether the death penalty can constitutionally be imposed for any crime was then (as now) awaiting a definitive ruling by the United States Supreme Court the General Assembly provided in Section 7 of Chapter 1201:

"In the event it is determined by the North Carolina Supreme Court or the United States Supreme Court that a sentence of death may not be constitutionally imposed for any capital offense for which the death penalty is provided by this Act, the punishment for the offense shall be life imprisonment."

Section 8 of Chapter 1201 provides:

"This act shall become effective upon ratification and applicable to all offenses hereafter committed."

The rape for which this defendant was convicted falls within the definition of second degree rape as defined in Chapter 1201. The resistance of the alleged victim was not overcome, or her submission procured, by the use of a deadly weapon or by the infliction of serious bodily injury to her. By serious injury the General Assembly obviously meant injury in addition to the fact of rape, which in itself is serious injury indeed.

Defendant argues that since he could not have been sentenced to death under the present law for the crime for which he was convicted, the court erred in imposing the death sentence. The majority rejects this contention on the ground that Section 8 required the sentence imposed. With that view I cannot agree.

Admittedly, the application to this case of rules of construction which have been employed in certain noncapital cases (State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972); State v. Cameron, 284 N.C. 165, 200 S.E.2d 186 (1973)) would support the majority's conclusion that Section 8 discloses the legislative intent to execute a defendant for a second degree rape committed one day and to imprison another for the same crime committed the following day. I am, however, unwilling to attribute such an intent to the General Assembly. The circumstances surrounding the enactment of Chapter 1201 are not consistent with such an intent.

The sole purpose of rules of construction is to aid the courts in ascertaining the legislative intent. Therefore, no rule, however appropriate in noncapital cases, should bind the Court when dealing with issues of life and death under circumstances such as those of this case.

Prior to the rewriting of G.S. § 14-21 in 1974 this Court, in four-to-three decisions, had upheld death sentences for rape in State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974), and in State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974), and in State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974). When these cases were decided, the distinction between first degree rape and second degree rape as now defined in Chapter 1201 was unknown to our law.

At the time the General Assembly enacted Chapter 1201 on 8 April 1974 it knew that petitions for certiorari by each of the defendants in the four-to-three decisions cited above were pending in the Supreme Court of the United States for the further review of his case, and that execution of the death sentences had been stayed pending action by that Court. Until the United States Supreme Court ruled it could not be finally determined whether this Court's decision in Waddell had reinstated death as the punishment for the State's four capital crimes or whether the decision in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) had invalidated entirely the death penalty provisions of the statutes which fixed the punishment for those crimes.

Under these circumstances of uncertainty, by the enactment of Chapter 1201, the General Assembly most certainly did three things: (1) It abolished capital punishment for arson, burglary in the first degree, and rape in the second degree in the event it should be finally determined that Waddell reinstated the death penalty in this State. (2) It established capital punishment for murder in the first degree and rape in the first degree in the event the State's death penalty statutes had been abrogated by the decision in Furman v. Georgia, supra. (3) It substituted life imprisonment for the death sentence if the Supreme Court of the United States should decide that the latter was constitutionally impermissible.

It seems inconceivable that, under these circumstances, the General Assembly could have intended that any person would thereafter be executed for a crime for which Chapter 1201 abolished the death penalty.

It is doubtful that the General Assembly was aware of any pending case involving second degree rape as defined in Chapter 1201. On the other hand, it was aware of the fact that it could not change any final decision of this Court in which the death penalty for rape had been upheld. It may be that the purpose of Section 8 was to dispel the unwarranted notion that the General Assembly contemplated judicial reconsideration of prior decisions of this Court in which the death penalty for rape had been upheld. This case, however, has not proceeded to final judgment; it is still within the jurisdiction and responsibility of the Court.

In my view to execute a death sentence for a crime which is not now punishable by death would be unconscionable and constitute cruel and unusual punishment in violation of Article I, Section 27, of the Constitution of North Carolina, and of the Eighth Amendment to the Constitution of the United States.