State v. Winkle

HENRIOD, Chief Justice

(dissenting):

I dissent.. Doing so, I can say that I am at a complete loss to know what the main opinion is talking about in the third full paragraph. It seems to be loaded with words headed for a cul de sac. What the state “represents . . . that it concedes determination of the issue of recommendation by the jury of life imprisonment as being resolved favorable to the defendant,” is a gratuity. What it means is something this writer cannot comprehend. Anyway, what the state represents it concedes about something that was non-existent and a complete stranger in this case,— namely, — an instruction letting the jury make a recommendation, — not permitted in this case, — is a prelude to a circumlocu-tious journey to the last paragraph of the majority opinion which says that the Attorney General and this Court can make the recommendation instead of the jury, for leniency, where the jury could not and did not do in this case. All of which is sort of an end run, followed by a forward pass which is fumbled, — but where the referee rules that there has been a touchdown, even though the ball, after the fumble, is still 40 yards from the goal.

Besides, the peripatetic route travelled by the main opinion, it flies in the teeth of Furman v. Georgia, but conveniently extracts them with a pair of non sequiturs.

Until the case of State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973) now pending, is decided by the Supreme Court, the death penalty is the only legitimate one now extant in this state.

The case should be affirmed, as it should have been in the first place, with the sentence of death subsisting, as was pointed out in the dissent at the previous hearing.

That does not mean, necessarily, that this writer either is for or against the death penalty, but at the present moment, absent the questionable specificity of the main opinion here, it happens to be the law of Utah in this case, in my opinion.

The trial court should be affirmed.