State v. Carter

Decision Date09 November 1955
Docket NumberNo. 364,364
Citation243 N.C. 106,89 S.E.2d 789
PartiesSTATE, v. Frank W. CARTER, Jr.
CourtNorth Carolina Supreme Court

Atty. Gen. Wm. B. Rodman, Jr., and Asst. Atty. Gen. T. W. Bruton for the State.

Willard Wilder, Louisburg, and Ellis Nassif, Raleigh, for defendant, appellant.

JOHNSON, Justice.

The trial court did not tell the jury what the legal effect of a recommendation of life imprisonment would be, as required by statute. Decision turns on whether this failure to instruct was prejudicial error.

Prior to 1949, the punishment for murder in the first degree was death. A recommendation of mercy by the jury meant nothing as bearing on the duty of the judge to impose punishment. The recommendation was treated as surplusage. The death sentence followed as a matter of course. It was so fixed by statute, G.S. § 14-17.

But this has been changed. Now, by virtue of Chapter 299, Session Laws of 1949, the statute, G.S. § 14-17, contains a proviso which directs that '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.' (Italics added.)

The jury now has the discretionary right to recommend 'imprisonment for life in the State's prison.' Now the recommendation when made may not be treated as surplusage. The recommendation has the salutary effect of mitigating the punishment from death to imprisonment for life, and the Act of 1949 expressly provides that the 'court shall so instruct the jury.' Since the amendment, it is not enough for the judge to instruct the jury that they may recommend life imprisonment. The statute now requires that he go further and tell the jury what the legal effect of such recommendation will be, i. e., that if they make the recommendation, it will mitigate the punishment from death to imprisonment for life in the State's prison.

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11 cases
  • State v. Atkinson, 22
    • United States
    • North Carolina Supreme Court
    • May 14, 1969
    ...its verdict of guilty with such recommendation, which would then be binding upon the court in the matter of sentence. State v. Carter, 243 N.C. 106, 89 S.E.2d 789; State v. McMillan, 233 N.C. 630, 65 S.E.2d 212. The jury actually selected to try the defendant in the present case was so inst......
  • State v. Crawford, 361
    • United States
    • North Carolina Supreme Court
    • November 27, 1963
    ...instructed the jury, as required by the proviso contained in G.S. § 14-17. State v. McMillan, 233 N.C. 630, 65 S.E.2d 212; State v. Carter, 243 N.C. 106, 89 S.E.2d 789; State v. Denny, 249 N.C. 113, 105 S.E.2d Defendant contends that the challenged part of the charge, to the effect that the......
  • State v. Pugh
    • United States
    • North Carolina Supreme Court
    • May 20, 1959
    ...guilty of a capital offense, as laid down in State v. McMillan, supra. See State v. Conner, 241 N.C. 468, 85 S.E.2d 584; State v. Carter, 243 N.C. 106, 89 S.E.2d 789; State v. Adams, 243 N.C. 290, 90 S.E.2d 383; State v. Cook, 245 N.C. 610, 96 S.E.2d 842; State v. McAfee, 247 N.C. 98, 100 S......
  • State v. Bunton
    • United States
    • North Carolina Supreme Court
    • January 10, 1958
    ...236 N.C. 340, 72 S.E.2d 743; State v. Dockery, 238 N.C. 222, 77 S.E.2d 664; State v. Conner, 241 N.C. 468, 85 S.E.2d 584; State v. Carter, 243 N.C. 106, 89 S.E.2d 789; State v. Adams, 243 N.C. 290, 90 S.E.2d 383; State v. Cook, 245 N.C. 610, 96 S.E.2d In the present case all the evidence sh......
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