1. Jury 4: Criminal Law 128: Homicide 30 — In a prosecution for murder in the first degree the solicitor may not, in the selection of the jury, state to prospective jurors that the sole purpose of the trial is to obtain the death penalty, and held further by a divided court that the solicitor may not state to prospective jurors that the State is seeking a verdict of guilty of murder in the first degree without recommendation of life imprisonment, since such statements violate the proviso of G.S. 14-17, giving the jury the unbridled discretion to recommend life imprisonment upon conviction of a defendant of the capital offense.
2. Criminal Law 163 — The prejudicial effect of a statement of the solicitor, in selecting the jury, that the sole purpose of the trial is to obtain the death penalty against defendant, cannot be cured by a statement of the court that all prospective jurors should disabuse their minds in regard to the solicitor's remark, and certainly such error is not cured when the court thereafter overrules the objection to later statements to prospective jurors that the State is seeking the death penalty without recommendation of life imprisonment.
3. Constitutional Law 30: Criminal Law 94 — The trial court has the responsibility for enforcing the right of the defendant to a trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm.
4. Homicide 28 — Where any view of the evidence would justify a verdict of guilty of manslaughter it is incumbent upon the court to submit to the jury the question of defendant's guilt of this lesser degree of the crime.
HIGGINS, J., not sitting.
BOBBITT, J., concurring in result.
RODMAN, J., joins in concurring opinion.
PARKER, J., dissenting.
Criminal prosecution upon a bill of indictment charging defendant with the crime of murder in the first degree of one Isabella Gatling Manning.
Plea: Not guilty.
Upon the trial in Superior Court, as shown by the record, the list of regular jurors for the term first having been exhausted, the trial court ordered and had summoned a special venire of one hundred fifty, then a second of one hundred fifty and then a third of one hundred from whom jury of twelve jurors and two alternate jurors were selected, and impaneled to try the case against defendant Odis Manning.
And the case on appeal discloses that when the case came on for trial at the February-March Term of Superior Court for Edgecombe County, 1959, the following proceedings were had:
"During Examination of Prospective Jurors the following occurred:
"Upon the first prospective juror being sworn for questioning, Mr. Hubert E. May, Solicitor, read aloud that portion of G.S. 14-17 relating to murder in the first degree, including the proviso with reference to jury recommendations and said: `Mr. (Juror's name), I am stating this to you and for all the other jurors to hear. As far as the State is concerned the sole and only purpose of this trial is to send the defendant Odis Manning, to his death in the gas chamber in Raleigh. North Carolina.'
"Defendant objects — Sustained.
"The court instructed all the prospective jurors to disabuse their minds entirely of the statement, and to disregard it completely. The juror to whom the statement was specifically directed was not sealed. The first three jurors seated came from the regular panel and therefore were present in court when the statement by Mr. May was made.
"Defendant moves that the entire panel be discharged. Denied. Defendant excepts. Exception #1.
"The Juror Phillips:
"By Mr. Bridgers: The State will request a verdict of murder in the first degree without a recommendation for life imprisonment.
"Defendant objects — Overruled — Defendant Excepts. Exception #2.
"The Juror O'Neal:
"By Mr. May: I guess you know the State is seeking to convict this defendant of murder in the first degree without any recommendation for life imprisonment? Defendant objects — Overruled — Defendant excepts. Exception #3.
"The Juror Wilson:
"By Mr. Bridgers: The State is seeking a verdict in this case of guilty of murder in the first degree without recommendation for life imprisonment. Defendant objects — Overruled — Defendant excepts. Exception #4.
"The Juror Mrs. Felton:
"By Mr. May: The defendant is indicted under the following statute (reads that portion of G.S. 14-17 relating to murder in the first degree, including the proviso with reference to jury recommendation). The State in this case is seeking a verdict of murder in the first degree without any recommendation of life imprisonment. Defendant objects — Overruled — Defendant excepts. Exception #5.
"The Juror Howard:
"By Mr. Bridgers: The State is seeking a verdict of guilty of murder in the first degree without any recommendation of life imprisonment. Defendant objects — Overruled — Defendant excepts. Exception #6."
And further upon the trial in Superior Court as shown by record, of case on appeal the State and the defendant offered evidence, and the case was submitted to the jury under the charge of the court.
Verdict: That, the defendant is guilty of murder in the first degree.
Judgment: Death by inhalation of lethal gas as provided by law.
Defendant excepts and gives notice of appeal, appeals to Supreme Court and assigns error, and is permitted to appeal without making bond, that is, in forma pauperis, — the County of Edgecombe to pay costs incident thereto.
WINBORNE, C.J.
For error in the course of the trial of this case in Superior Court as revealed on the face of the case on appeal indicated by exceptions Numbers 1 to 6, both inclusive, on which assignments of error of like numbers are predicated, this Court is, in the light of the statute G.S. 14-17, as interpreted and applied in repeated decisions of the Court, impelled to order a new trial.
In this connection the statute, G.S. 14-17, as amended by the General Assembly of North Carolina, 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 — S. v. McMillan, 233 N.C. 630, 65 S.E.2d 212; S. v. Marsh, 234 N.C. 101, 66 S.E.2d 684; S. v. Simmons, 234 N.C. 290, 66 S.E.2d 897; s.c. 236 N.C. 340, 72 S.E.2d 743; S. v. Dockery, 238 N.C. 222, 77 S.E.2d 664; S. v. Conner, 241 N.C. 468, 85 S.E.2d 584; S. v. Carter, 243 N.C. 106, 89 S.E.2d 789; S. v. Adams, 243 N.C. 290, 90 S.E.2d 383; S. v. Cook, 245 N.C. 610, 96 S.E.2d 842; S. v. Denny, 249 N.C. 113, 105 S.E.2d 446; S. v. Oakes, 249 N.C. 282, 106 S.E.2d 206; S. v. Pugh, 250 N.C. 278, 108 S.E.2d 649, and perhaps others.
As interpreted in the McMillan case, above cited, decided in May 1951, this Court, speaking of the proviso embraced in the 1949 amendment, had this to say: "The language of this amendment stands in bold relief. It is plain and free from ambiguity and expresses a single, definite and sensible meaning, — a meaning which under the settled law of this State is conclusively presumed to be the one intended by the Legislature." (citing cases) And, continuing, the Court declared: "It is patent that the sole purpose of the act is to give to the jury in all cases where a verdict of guilty of murder in the first degree shall have been reached, the right to recommend that the punishment for the crime shall be imprisonment for life in the State's prison * * * No conditions are attached to, and no qualifications or limitations are imposed upon, the right of the jury to so recommend. It is unbridled discretionary right. And 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. And new trials have been granted from time to time in case after case as above enumerated — for violations of the terms of the proviso in G.S. 14-17.
Applying these principles to the subject matter of exceptions Numbers 1 to 6, both inclusive, hereinabove set forth, it is manifest that the terms of the proviso set out in G.S. 14-17 have been violated and the rights of defendant impinged. True the trial judge did what he could to counteract the harmful result of the remarks of the Solicitor. But as stated by this Court in S. v. Canipe, 240 N.C. 60, 81 S.E.2d 173, in opinion by Ervin, J., when such occurs, "it is virtually impossible for the judge to remove the prejudicial impression from the minds of the trial jurors by anything which he may afterwards say to them by way of atonement or explanation," citing cases.
Where, however, the harm is done the court may not eradicate the wrong. Such is the case in hand in respect to the first assignment of error. Moreover it is seen that in regard to the matters to which assignments of error Nos. 2 to 6, both inclusive, relate, the trial court overruled the objections of defendant and permitted the Solicitor to tell the prospective jurors the State was seeking a verdict of guilty of murder in the first degree without recommendation for life imprisonment, — a manifest violation of the provisions of the proviso in G.S. 14-17.
"Every person charged with crime has an absolute right to a fair trial. By this is meant that he is entitled to a trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm * * * The responsibility for enforcing this right necessarily rests upon the trial judge." S. v. Carter, 233 N.C. 581, 65 S.E.2d 9.
Furthermore defendant assigned as error the refusal of the trial court to instruct the jury concerning the law of manslaughter and the circumstances in the case under which the jury would be permitted to return a verdict of manslaughter. Assignment of error # 23. Exception No. 45. In respect to this contention this Court is of opinion that the fact that defendant and, his wife were together in the woods 10 minutes (R. p. 32), as the State's evidence tends to show, before any shots were heard is a circumstance that requires a charge on manslaughter.
The evidence discloses that there were no eye witnesses to the shooting, and no one of the State's witnesses knows what actually took place on this occasion. It rests in speculation
The matters to which other assignments of error relate may not recur on a new trial. Hence it is not deemed necessary that they be treated on this appeal.
There must be a
New trial.
HIGGINS, J., not sitting.
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