STATE of North Carolina
v.
George RANKIN.
No. 75.
Supreme Court of North Carolina.
January 26, 1973.*741 T. O. Stennett, Charlotte, for defendant appellant.
Robert Morgan, Atty. Gen., and Walter E. Ricks, III, Asst. Atty. Gen., for the State of North Carolina.
HUSKINS, Justice:
Defendant was indicted and tried under G.S. § 14-17 which reads in pertinent part as follows:
"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."
The trial judge instructed the jury in accordance with this statute; and the jury, in the exercise of its discretion, recommended life imprisonment. Defendant contends on this appeal that G.S. § 14-17 is now unconstitutional and void by reason of the decision of the Supreme Court of the United States in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Therefore, defendant argues, the verdict and judgment in this case are grounded on a void statute and must be set aside.
We first note that this question was not, and could not have been, raised in the court below because the judgment here was pronounced on 9 June 1972 before the decision in Furman was handed down on 29 June 1972. Thus, the constitutional question posed by defendant may be raised initially in this Court.
Examination and analysis of the nine separate opinions in Furman compel the conclusion that capital punishment has not been declared unconstitutional per se. Rather, Furman holds that the Eighth and Fourteenth Amendments will no longer tolerate the infliction of a death sentence where either the jury or the judge is permitted to impose that sentence as a matter of discretion. The proviso in G.S. § 14-17 gives North Carolina juries the forbidden discretion, and the trial judge permitted the jury in this case to exercise it. Had this jury decided, in its discretion, to require imposition of the death sentence by failing to recommend life imprisonment, and had the judge pronounced a sentence of death, then such sentence could not constitutionally be carried out under the holding in Furman. Instead, this Court would order the death sentence stricken and remand the case for imposition of a life sentence. See State v. Miller, 281 N.C. 740, 190 S.E.2d 841 (1972); State v. Hamby and Chandler, 281 N.C. 743, 191 S.E.2d 66 (1972); State v. Chance, 281 N.C. 746, 191 S.E.2d 65 (1972); State v. Westbrook, 281 N.C. 748, 191 S.E.2d 68 (1972); State v. Doss, 281 N.C. 751, 191 S.E.2d 70 (1972). But the facts in this case do not fit that mold.
Here, the jury recommended and the judge pronounced a sentence of life imprisonment. Manifestly, the Furman decision has no application to, and nothing in it affects the legality or the constitutionality of, a life sentence. "Furthermore, the Furman case is without significance when the jury returns a verdict recommending life imprisonment. In that situation the defendant has no standing to raise the constitutionality of the death penalty or of a statute because it provides for that punishment." State v. Wright, 282 N.C. 364, 192 S.E.2d 818 (1972). Accord State v. Duncan, *742 282 N.C. 412, 193 S.E.2d 65 (1972); State v. Bryant, 282 N.C. 92, 191 S.E.2d 745 (1972). Accordingly, for the reasons stated, we leave the life sentence undisturbed and overrule defendant's first assignment of error.
Defendant assigns as error the failure of the trial judge to instruct the jury that defendant's failure to testify in his own behalf was merely the exercise of a privilege afforded him by G.S. § 8-54 and should not be held against him by the jury. Defendant made no request for such instruction but contends it was the duty of the judge under G.S. § 1-180 to give it.
G.S. § 8-54 in relevant part reads as follows:
"In the trial of all indictments, complaints, or other proceedings against persons charged with the commission of crimes, offenses or misdemeanors, the person so charged is, at his own request, but not otherwise, a competent witness, and his failure to make such request shall not create any presumption against him."
Absent a special request the judge is not required to instruct the jury that a defendant's failure to testify creates no presumption against him. State v. Rainey, 236 N.C. 738, 74 S.E.2d 39 (1953); State v. Kelly, 216 N.C. 627, 6 S.E.2d 533 (1940); State v. Jordan, 216 N.C. 356, 5 S.E.2d 156 (1939); 3 Strong, N.C.Index 2d, Criminal Law, § 116. "Ordinarily, it would seem better to give no instruction concerning a defendant's failure to testify unless such an instruction is requested by defendant." State v. Barbour, 278 N.C. 449, 180 S.E.2d 115 (1971). Unless the defendant so requests, such an instruction is held in some jurisdictions to accentuate the significance of his silence and thus impinge upon defendant's unfettered right to testify or not to testify at his option. See Annotation: Propriety under Griffin v. California and prejudicial effect of unrequested instruction that no inferences against accused should be drawn from his failure to testify, 18 A.L.R.3d 1335, and cases cited.
Since defendant did not request the instruction he now insists the court should have given, the trial court properly omitted any mention of it. This assignment has no merit and is overruled.
Defendant having failed to show prejudicial error, the verdict and judgment will be upheld.
No error.