STATE of North Carolina
v.
Connell CARROLL and Archie Moore Stewart.
No. 31.
Supreme Court of North Carolina.
December 13, 1972.*88 Robert Morgan, Atty. Gen., by Edwin M. Speas, Jr., Associate Atty., Raleigh, for the State.
Grady & Shaw by Philip C. Shaw, Four Oaks, Corbett & Corbett, by Albert A. Corbett, Smithfield, for defendants-appellants.
HIGGINS, Justice.
The trial court after careful review concluded the defendants had failed to make out a prima facie case of discrimination against the defendants in the manner in which the trial jury was selected. The evidence, which is without contradiction, apparently refutes any claim of discrimination. The only apparent shadow in the picture is the designation of race on the tax list and the voter registration list from which the jury list was made up. However, when the purpose of the designation is understood, even the shadow is dissipated.
It is a matter of history and within the realm of common knowledge that upon emancipation many of the slaves were given the family names of their former owners. Likewise, it is a matter of common knowledge that many of the slaves remained in the vicinity of their birth so that as a result persons of both races had the same names. For example, there was Joe Brown, W. and Joe Brown, C.; John Smith, W. and John Smith, C. By indicating on the registration books the color designation, the election officials could see to it that each white and each black voted one time and neither voted twice.
Likewise the same designation on the tax records served a useful purpose. When taxes are properly listed they become liens on real property. When Joe Brown or John Smith, W. paid his taxes his lands were cleared of the lien. When Joe Brown or John Smith, C. paid his taxes his property was cleared of the lien. Absent the designation, uncertainty and confusion could be eliminated only by going back to the lister's scrolls to determine with certainty whose land is burdened with the lien.
However, in the preparation of the jury list and the discs there was no designation of race or color. Hence the procedure followed does not lend itself to racial discrimination in jury selection because the jury list carried no distinction. In addition, *89 the discs which contain only numbers and no names are selected and each juror identified only after the number on the disc is compared with the number on the jury list. According to the evidence, 4, 6 or 8 colored jurors reported for jury service at each term of court. The evidence does not make a prima facie case of discrimination. The jury in State v. Lowry and State v. Mallory, 263 N.C. 536, 139 S. E.2d 870, was drawn from a jury list which carried the race designation. The defendants' objections on the ground of discrimination are not sustained. State v. Cornell, 281 N.C. 20, 187 S.E.2d 768; State v. Spencer, 276 N.C. 535, 173 S.E.2d 765; State v. Ray, 274 N.C. 556, 164 S.E. 2d 457; State v. Yoes and Hale v. State, 271 N.C. 616, 157 S.E.2d 386; Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L. Ed.2d 599; Arnold v. N. C., 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77; Brown v. Allen, 344 U.S. 443, 73 S.Ct. 437 97 L.Ed. 469.
When the defendants challenged the State's right to introduce the confessions, the court, in the absence of the jury, conducted a detailed voir dire. Mr. Lewis, the arresting officer, had personally known the defendants and took great pains to explain their rights before he would permit them to make any statements or sign any waivers. The defendants did not offer evidence on the voir dire. Hence there were no contradictions or discrepancies in the evidence. The court properly concluded the admissions were in fact voluntarily made and were properly admissible in evidence. State v. Williams, 276 N.C. 703, 174 S.E.2d 503; State v. Lentz, 270 N.C. 122, 153 S.E.2d 864; State v. Pearce, 266 N.C. 234, 145 S.E.2d 918; State v. Davis, 253 N.C. 86, 116 S.E.2d 365; Davis v. N. C., 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
We conclude, therefore, the jury was properly chosen, the confessions were legally admitted in evidence, and the assignments of error based thereon are not sustained. Nevertheless, in view of the gravity of the charges, the verdicts, and judgments, we have carefully examined the record before us and find certain errors appearing therein which we feel it our duty to correct.
It appears conclusively that the armed robbery charges were proved as essential elements in the capital offense of murder in the first degree upon which the defendants were convicted. The robberies, therefore, became a part of and were merged into the murder charges. Having been so used, the defendants cannot again be charged, convicted and sentenced for these elements although the robberies constituted crimes within themselves. The following is quoted from State v. Peele, 281 N.C. 253, 188 S.E.2d 326:
"Examination of the indictments, verdicts, and judgments disclose that the armed robbery charge was embraced in and made a part of the charge of murder in the first degree. Wharton's Criminal Law and Procedure, Vol. 1, Section 148, states the rule: `It is generally agreed that if a person is tried for a greater offense he cannot be tried thereafter for a lesser offense necessarily involved in, and a part of, the greater, . . .' Many cases recognize and apply the same principle. Among them are State v. Thompson, 280 N.C. 202, 185 S.E.2d 666; State v. Hatcher, 277 N.C. 380, 177 S.E.2d 892; State v. Parker, 262 N.C. 679, 138 S.E.2d 496; State v. Birckhead, 256 N.C. 494, 128 S.E.2d 838; and State v. Bell, 205 N.C. 225, 171 S.E. 50."
Likewise the face of the record discloses the trial court pronounced the death sentence on defendant Carroll, the jury having failed to recommend life imprisonment. Heretofore, in cases involving death sentences for murder, the Supreme Court of the United States has vacated the *90 death sentences and remanded the cases to this Court for further proceedings. We are forced to conclude, therefore, that in this case the State is without authority to execute a death sentence for murder in the first degree even though the jury failed to make any recommendation with respect to punishment. The reasoning seems to be that in cases wherein the state law gives either the court or the jury the option to decide whether punishment shall be death or life imprisonment, the judgment must be life imprisonment in order to obey the mandate of the Eighth Amendment to the Constitution of the United States. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346.
Notwithstanding the doubts in the minds of certain members of this Court concerning the validity of a death sentence for murder in the first degree, we must recognize and obey the decisions of the Supreme Court of the United States. State v. Chandler & Hamby, 281 N.C. 743, 191 S. E.2d 66; State v. Chance, 281 N.C. 746, 191 S.E.2d 65; State v. Westbrook, 281 N.C. 748, 191 S.E.2d 68; State v. Doss, 281 N.C. 751, 191 S.E.2d 70; State v. Miller, 281 N.C. 740, 190 S.E.2d 841.
In view of the mandates referred to in State v. Miller, supra, and the other cases, we take the practical view and remand the first degree murder charge against Carroll to the Superior Court of Johnston County and direct that the judge presiding at a criminal session of the court bring the defendant and his counsel of record before the court, vacate the death sentence, and impose in lieu thereof a sentence of life imprisonment.
On the charges of armed robbery, for the reasons assigned, the verdicts as to both defendants are set aside, the judgments are vacated, and the charges dismissed.
On the charge of murder against defendant Stewartno error.