DENNY, J., concurring.
HIGGINS, J., dissenting.
PARKER, J., concurs in dissent.
Criminal prosecution upon a bill of indictment charging defendant Clarence Pugh with murder in the first degree of one Charles Otis Nodine.
Plea: Not guilty.
Upon the trial in Superior Court the State offered evidence — the defendant offering none — and the case was submitted to the jury under the charge of the court.
Verdict: The Jurors, upon their oath say that the said Clarence Pugh is guilty of the felony and murder in the manner and form as charged in the bill of indictment.
Judgment: Death by inhalation of legal gas as provided by law.
Defendant objects and excepts and gives notice of appeal, and appeals to the Supreme Court, and assigns error, and is permitted to appeal without making bond, that is, in forma pauperis.
WINBORNE, C.J.
The record of case on appeal here presented reveals error in the charge of the court for which, under authority of S. v. Oakes, 249 N.C. 282, 106 S.E.2d 206, a new trial must be had. See also S. v. Denny, 249 N.C. 113, 105 S.E.2d 446, and cases cited.
In this connection, G.S. 14-17, as amended by Section 1 of Chapter 299 of 1949 Session Laws of North Carolina, provides that "A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate, any arson, rape, robbery, burglary or other felony, shall be deemed to be murder in the first degree and shall be punished, with death: provided if at the time of rendering its verdict in open court, the jury shall so recommend, the punishment shall be imprisonment for life in the State's prison, and the court shall so instruct the jury. All other kinds of murder shall be deemed murder in the second degree, and shall be punished," etc.
The proviso embraces the 1949 amendment, and has been the subject of discussion in several cases.
And as in S. v. Oakes, supra, the error of which complaint is made arises in this manner. It seems that the trial judge charged in substantial accord that where a verdict of guilty of murder in the first degree shall have been reached by the jury, it has the unbridled discretionary right to recommend that the punishment for the crime shall be imprisonment for life in the State's prison, instructing the jury that there are no conditions attached to and no qualifications or limitations imposed upon the right of the jury to so recommend, in keeping with the provisions of G.S. 14-17, as amended by Section 1 of Chapter 299 of 1949 Session Laws of North Carolina. See S. v. Denny, supra, and cases cited.
And as stated in the Denny case, supra, quoting from S. v. McMillan, 233 N.C. 630, 65 S.E.2d 212, "It is incumbent upon the court to so instruct the jury. In this the defendant has a substantive right. Therefore, any instruction, charge or suggestion as to the causes for which the jury could or ought to recommend is error sufficient to set aside a verdict where no recommendation is made." Contrary to this in the instant case the trial judge inadvertently, no doubt, in stating contentions of the State declared to the jury that: "The State contends that this defendant killed Mr. Nodine in robbing him, and that your verdict should be guilty of murder in the first degree without any recommendation, that is, punishment be imprisonment for life." And the "State contends that this crime denotes a mind fatally bent on mischief, that a man who would kill a man in this fashion, in the fashion in which Mr. Charles Otis Nodine was killed, and who was then able to continue riding around the country in his automobile, and sleeping in his automobile as though nothing had happened, is a very cool calculated person. And the State contends that there are no circumstances in this case which would justify you in exercising your discretion in favor of a life sentence for this defendant. The State contends that your verdict should be guilty of murder in the first degree." Defendant properly excepts to the quoted language.
And the Attorney General in brief filed concedes that the State is unable to distinguish the foregoing portion of the charge from that condemned by this Court in the case of S. v. Oakes, supra, — an error in the charge of which the Court will take note ex mero motu, citing S. v. Oakes, supra, and S. v. McCoy, 236 N.C. 121, 71 S.E.2d 921.
Furthermore, considering the evidence offered by the State in the light most favorable to the State, it appears sufficient to withstand motion for judgment as of nonsuit — to the denial of which defendant excepts.
Since there is to be a retrial other assignment of error need no express consideration.
For error pointed out, there will be a
New Trial.