State v. Denny
| Decision Date | 29 October 1958 |
| Docket Number | No. 364,364 |
| Citation | 249 N.C. 113,105 S.E.2d 446 |
| Parties | STATE, v. Allen DENNY. |
| Court | North Carolina Supreme Court |
Malcolm B. Seawell, Atty. Gen., Claude L. Love, Asst. Atty. Gen., for the State.
J. H. Whicker, Sr., North Wilkesboro, Allen, Henderson & Williams, Elkin, for defendant appellant.
The record on this appeal discloses that the case in hand was tried in Superior Court upon the theory that, in view of the statement by the Solicitor, as above recited, 'the charge of murder in the first degree is no longer in this case, but the charge of murder in the first degree with recommendation for mercy is in the case.' The question then arises as to whether there is in this State any crime known to criminal law as 'murder in the first degree with recommendation of mercy.' The answer is 'No.' Recommendation by the jury pertains to punishment, and is not an element of murder in the first degree.
In this connection, G.S. § 14-17, Section 1 of Chapter 299 of 1949 Session Laws of North Carolina, provides that etc.
The proviso embraces the 1949 amendment, and has been the subject of discussion in several cases. State v. McMillan, 233 N.C. 630, 65 S.E.2d 212; State v. Marsh, 234 N.C. 101, 66 S.E.2d 684; State v. Simmons, 234 N.C. 290, 66 S.E.2d 897; Id., 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 842.
In the McMillan case, supra [233 N.C. 630, 65 S.E.2d 213], this Court said that And, continuing, the Court then declared:
Thus the statute 'commits the matter to the unrestrained discretion of the jury.' State v. Marsh, supra [234 N.C. 101, 66 S.E.2d 688], citing the McMillan case. To like effect are the holdings in above cited cases.
In State v. Carter, supra [243 N.C. 106, 89 S.E.2d 790], opinion by Johnson, J., it is stated:
'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.
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Crawford v. Bounds
...held reversible error for the prosecutor to argue against life imprisonment because of the possibility of parole; in State v. Denny, 249 N.C. 113, 105 S.E.2d 446 (1958), it was held error for the judge to tell the jury that it could not consider the death penalty, where the prosecutor had s......
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State v. Jarrette
...discretion to fix the punishment at either death or imprisonment for life. State v. Manning, 251 N.C. 1, 110 S.E.2d 474; State v. Denny, 249 N.C. 113, 105 S.E.2d 446; State v. Conner, 241 N.C. 468, 85 S.E.2d 584; State v. Simmons, 234 N.C. 290, 66 S.E.2d 897; State v. McMillan, 233 N.C. 630......
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State v. Spence, 658
...State's prison, is a matter within the 'unbridled' discretion of the jury. State v. McMillan, 233 N.C. 630, 65 S.E.2d 212; State v. Denny, 249 N.C. 113, 105 S.E.2d 446. The opinion in McMillan states: 'No conditions are attached to, and no qualifications or limitations are imposed upon, the......
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State v. Crawford, 361
...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 446. Defendant contends that the challenged part of the charge, to the effect that the jury should arrive at its verdict so as to......