State v. Ruth, 9

• Decision Date: 10 December 1969
• Docket Number: No. 9,9
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Johnny RUTH.

Page 897

170 S.E.2d 897

276 N.C. 36

STATE of North Carolina v. Johnny RUTH.

No. 9.

Supreme Court of North Carolina.

Dec. 10, 1969.

Atty. Gen. Robert Morgan and Deputy Atty. Gen. Ralph Moody, for the State.

Jerry L. Jarvis, Durham, for defendant.

LAKE, Justice.

The defendant concedes that there was no error in sustaining the State's challenges for cause to those jurors who stated upon voir dire examination that they would not return a verdict which would require the death sentence in any case, regardless of the evidence. His sole assignment of error is directed to the allowance of the State's challenges to seven prospective jurors who stated simply a general objection to or conscientious scruples against the infliction of capital punishment. The fact that the questioning of the first group indicated that the solicitor was seeking a jury which would fairly consider the evidence and, in its light, determine whether to render a verdict requiring imposition of the death sentence has no bearing upon the validity of the rulings upon the challenges to the seven.

In fairness to the solicitor and to the learned judge who presided at the trial it should be observed that, at the time of the trial, the following statement by this Court in State v. Arnold, 258 N.C. 563, 573, 129 S.E.2d 229, 235--236, was regarded, in the courts of this State, as a correct declaration of the law upon the question presented by the defendant's assignments of error:

'Each defendant assigns as error the court's allowing the State on Voir dire to challenge for cause a number of jurors on the jury panel on the ground that they had conscientious scruples against the infliction of capital punishment. These assignments of error are overruled, for the simple reason that the court, in its discretion, could allow the State to challenge such jurors for cause for incompetency to serve in the case and sustain the challenge, it appearing that such jurors were disqualified. S. v. Vick, 132 N.C. 995, 43 S.E. 626; S. v. Vann, 162 N.C. 534, 77 S.E. 295.'

At the time of the defendant's trial in the superior court, there had been no contrary decision by the Supreme Court of the United States with reference to the effect of the Fourteenth Amendment, or any other provision of the Constitution of the United States, upon the question. It was not until three months after the trial of this defendant that the Supreme Court of the United States rendered its decision in Witherspoon v. Illinois, 88 S.Ct. 1770, 391 U.S. 510, 20 L.Ed.2d 776, which, being an interpretation of the Constitution of the United States, is binding upon this Court. There, the Supreme Court of the United States said:

'The issue before us is a narrow one. It does not involve the right of the prosecution to challenge for cause those prospective jurors who state that their reservations about capital punishment would prevent them from making an impartial decision as to the defendant's guilt. Nor does it involve the State's assertion of a right to exclude from the jury in a capital case those who say that they could never vote to impose the death penalty or that they would refuse even to consider its imposition in the case before them. For the State of Illinois did not stop there, but authorized the prosecution to exclude as well all who said that they were opposed to capital punishment and all who indicated that they had conscientious scruples against inflicting it. * * *

'Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.'

The Witherspoon decision being declared by the Court, in footnote 22 thereto, to be fully retroactive, we are compelled by it to vacate the judgment of the superior court sentencing the present defendant to death, which we do.

The defendant also asks us in his brief and upon oral argument to set aside the verdict and grant him a new trial. Whether this should be done, or the case should be remanded to the superior court for the imposition of a different sentence upon the verdict rendered by the jury selected in a manner now declared to violate the Constitution of the United States, is not determined by the decision in the Witherspoon case but by the law of this State. See Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433, 439.

In State v. Spence, 274 N.C. 536, 164 S.E.2d 593, a judgment imposing a death sentence upon a verdict of guilty of first degree murder without a recommendation that the defendant be sentenced to life imprisonment, which judgment had previously been affirmed by this Court (State v. Spence, 271 N.C. 23, 155 S.E.2d 802), was reconsidered by us pursuant to a directive from the Supreme Court of the United States. That directive required this Court to determine whether the method employed in selecting the jury met the standards set forth in the Witherspoon decision, which had been rendered after our affirmance of the judgment imposing the death sentence.

The record in the Spence case contained this stipulation: 'A total of 150 veniremen were examined on voir dire; 79 of those examined were successfully challenged for cause by the State because of their stated opposition to capital punishment.' Having reconsidered our earlier decision in the light of the Witherspoon case, we said:

'We have concluded the jury which convicted Spence and Williams was not selected according to their constitutional rights as set forth in Witherspoon. Although the defendants are indicted for having committed a most horrible crime, they cannot be executed for that crime until a jury, selected in accordance with their constitutional rights, has convicted them. The State has waived neither its right nor its duty to require them to answer the charge of murder in the first degree. To that end was order a new trial.'

Thereafter, in State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241, we held that upon a verdict by a jury, properly selected and constituted, that the defendant was guilty of murder in the first degree, which verdict contained no recommendation that his punishment be life imprisonment and which verdict was rendered in a trial free from error, the death sentence may lawfully be imposed and is required by the law of this State.

In the present case, the State contends that the defendant should be executed because he has committed the crime of first degree murder. The correctness of this contention has not been lawfully determined for the reason that, under the rule of the Witherspoon case, there has been no verdict by a jury properly selected and constituted. For this reason the defendant contends he is entitled to a new trial. He does not ask this Court to modify the judgment of the superior court so as to impose a different sentence, nor does he ask this Court to remand the case to the superior court for the imposition of a different sentence upon the verdict which has been rendered.

In any event, neither this Court nor the superior court has authority to impose upon any defendant charged with any crime, to which charge he has entered a plea of not guilty, any sentence not supported by a verdict of guilty rendered by a jury properly selected and constituted. See State v. Walters, 208 N.C. 391, 180 S.E. 664. The verdict in the record before us will support no sentence except the death sentence, which sentence cannot be carried out under the rule of the Witherspoon case.

Neither this Court nor the superior court has authority to change a constitutionally impermissible verdict by adding thereto a provision which, had the jury added it, would have made the verdict constitutionally permissible, but which the jury failed to add, notwithstanding a clear instruction that it might do so. See: State v. Snipes, 185 N.C. 743, 117 S.E. 500; State v. Craig, 176 N.C. 740, 97 S.E. 400. There is in this case no verdict in the record which will support the sentence imposed (due to the Witherspoon case) or any other sentence or which will support the release of the defendant as upon an acquittal of the offense for which he has been indicted.

G.S. § 14--17 is plain and explicit in prescribing the sentence to be imposed upon one convicted of murder in the first degree. The sentence must be: (1) Death if the jury does not 'at the time of rendering its verdict in open court' recommend imprisonment for life, or (2) imprisonment for life in the State's prison if the jury does so recommend.

While the statute uses the word 'recommend,' it clearly confers no discretionary power upon the superior court, or upon this Court, to impose a sentence different from that fixed by the jury. State v. Denny, 249 N.C. 113, 105 S.E.2d 446; State v. Carter, 243 N.C. 106, 89 S.E.2d 789. Under G.S. § 14--17 the court has no more authority to sentence a defendant to imprisonment where the verdict requires the death sentence than it has to sentence him to death where the jury 'recommends' life imprisonment. The statute, itself, prescribes the penalty. It does so in the alternative, but the condition which calls into operation the one or the other alternative is the verdict of the jury, not the determination of the judge. It makes no difference that the judge so determines because the Constitution of the United States, as interpreted by the Supreme Court of the United States, forbids him to impose a sentence pursuant to the verdict.

'A judgment by a court in a criminal case must conform strictly to the statute, and any variation from its provisions, either in the character or the extent of punishment inflicted, renders the judgment void. A statute which creates an offense and prescribes a special form of punishment excludes any different or additional punishment. ...