State v. Pugh

• Decision Date: 20 May 1959
• Docket Number: No. 510,510
• Citation: 108 S.E.2d 649,250 N.C. 278
• Parties: STATE, v. Clarence PUGH.
• Court: North Carolina Supreme Court

Page 649

108 S.E.2d 649

250 N.C. 278

STATE, v. Clarence PUGH.

No. 510

Supreme Court of North Carolina.

May 20, 1959

J. Allen Harrington, E. L. Gavin, H. W. Gavin, Sanford, for defendant-appellant.

Atty. Gen. Malcolm B. Seawell, Asst. Atty. Gen. Claude L. Love, for the state.

WINBORNE, Chief Justice.

The record of case on appeal here presented reveals error in the charge of the court for which, under authority of State v. Oakes, 249 N.C. 282, 106 S.E.2d 206, a new trial must be had. See also State 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 State 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 State v. Denny, supra, and cases cited.

And as stated in the Denny case, supra, quoting from State 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.' [249 N.C. 113, 105 S.E.2d 449.] 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 State v. Oakes, supra,--an error in the charge of which the Court will take note ex mero motu, citing State v. Oakes, supra, and State 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 assignments of error need no express consideration.

For error pointed out, there will be a

New Trial.

DENNY, Justice (concurring).

Prior to 1941 a verdict of guilty of any of the four capital crimes--murder, rape, burglary or arson--meant a mandatory death sentence, except in first degree burglary.

Chapter 434, Laws of North Carolina, Session of 1889, section 3 thereof, codified later as C.S. § 4641, now G.S. § 15-171, provided: 'That when the crime charged in the bill of indictment is burglary in the first degree, the jury may render a verdict of guilty of burglary in the second degree if they deem it proper so to do.'

In the case of State v. Johnson, 218 N.C. 604, 12 S.E.2d 278, 288, decided at the Fall Term 1940 and filed 20 December 1940, this Court held that C.S. § 4641 did not authorize an instruction that the jury might render a verdict of burglary in the second degree in its discretion, irrespective of the evidence. Stacy, C. J., Barnhill, J., later C. J., and Winborne, J., now C. J., each wrote vigorous dissenting opinions. Stacy, C. J., said: 'Our previous decisions are to the effect that on an indictment for burglary in the first degree, the defendant is not entitled as a matter of right to have the case submitted to the jury on the charge of burglary in the second degree unless there is evidence to support the milder verdict. C.S. § 4640. State v. Johnston, 119 N.C. 883, 26 S.E. 163; State v. Cox, 201 N.C. 357, 160 S.E. 358; State v. Morris, 215 N.C. 552, 2 S.E.2d 554 This is far from saying, however, that in such a case, the jury may not render a verdict of burglary in the second degree 'if they deem it proper so to do.' Both the legislative will as expressed in the statute, C.S. § 4641, and the pertinent decisions on the subject are to the contrary. State v. Alston, 113 N.C. 666, 18 S.E. 692; State v. Fleming, 107 N.C. 905, 12 S.E. 131.'

The General Assembly of North Carolina at its very first opportunity enacted Chapter 215 of the Public Laws of 1941. This act added the following provisos to C.S. § 4233, the burglary statute, and C.S. § 4238, the arson statute: 'Provided, if the jury shall so recommend, the punishment shall be imprisonment for life in the State's Prison.'

At the same session, the General Assembly enacted Chapter 7 of the Public Laws of 1941, amending C.S. § 4641 to read as follows: 'When the crime charged in the bill of indictment is burglary in the first degree the jury, upon the finding of facts sufficient to constitute burglary in the first degree as defined by statute, may elect to render a verdict of guilty of burglary in the second degree if they deem it proper so to do. The judge in his charge shall so instruct the jury.'

In 1943, C.S. § 4233 became G.S. § 14-52, and C.S. § 4238 became G.S. § 14-58, the language including the provisos remaining the same, and C.S. § 4641 became G.S. § 15-171.

At the Spring Term 1949 of this Court State v. Mathis, 230 N.C. 508, 53 S.E.2d

666, 668, was decided. The defendant had been convicted of first degree burglary and sentenced to death. On appeal, the defendant contended that the trial judge erred in not instructing the jury in respect to the right of the jury under G.S. § 14-52 to return a verdict of guilty of burglary in the first degree and to recommend in connection therewith that punishment therefor shall be imprisonment for life in the State's Prison. Winborne, J., now C. J., in speaking for the Court said: 'The proviso in the statute was added by the General Assembly of 1941, P.L.1941, Ch. 215. Before the enactment of it, a verdict of guilty of burglary in the first degree made death sentence mandatory. But since the enactment of it, when a jury in returning a verdict of guilty of burglary in the first degree recommends imprisonment for life, the death penalty is thereby eliminated, and sentence of life imprisonment is mandatory. Thus a substantial right is created by the proviso in G.S. § 14-52 in favor of one charged with burglary in the first degree. And in such case, it is the duty of the trial judge under the provisions of G.S. § 1-180 'to declare and explain the law arising thereon.'

'Moreover, G.S. § 15-171 provides that 'Where the crime charged in the bill of indictment is burglary in the first degree the jury, upon the finding of facts sufficient to constitute burglary in the first degree as defined by statute, may elect to render a verdict of guilty of burglary in the second degree if they deem it proper so to do', and 'the judge in his charge shall so instruct the jury.' See State v. Surles, 230 N.C. 272, 52 S.E.2d 880.

'Therefore, taking the two statutes to-gether, G.S. §§ 14-52 and 15-171, when in a case in which the charge is burglary in the first degree the jury finds from the evidence and beyond a reasonable doubt facts constituting burglary in the first degree, one of three verdicts may be returned: (1) Guilty of burglary in the first degree, which carries a mandatory death sentence; (2) Guilty of burglary in the first degree, with recommendation of imprisonment for life, which calls for a sentence to life imprisonment; and (3) if the jury 'deem it proper so to do', Guilty of burglary in the second degree, for which the sentence may be life imprisonment, or imprisonment for a term of years in the discretion of the judge, all in accordance with the statutes.'

In 1947 the General Assembly of North Carolina created a study commission for the purpose of making a study and submitting recommendations to the 1949 Session of the General Assembly for the improvement of the administration of justice in the State of North Carolina. Among the recommendations made pursuant to this study was the following: 'We propose that a...