dissenting.
Following Furman v. Georgia, 408 U. S. 238 (1972), the North Carolina Supreme Court considered the effect of that case on the North Carolina criminal statutes which imposed the death penalty for first-degree murder and other crimes but which provided that “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.” State v. Waddell, 282 N. C. 431, 194 S. E. 2d 19 (1973), determined that Furman v. Georgia invalidated only the proviso giving the jury the power to limit the penalty to life imprisonment and that thenceforward death was the mandatory penalty for the specified capital crimes. Thereafter N. C. Gen. Stat. § 14-17 was amended to eliminate the express dispensing power of the jury and to add kidnaping to the underlying felonies for which death is the specified penalty. As amended in 1974, the section reads 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 *307in the perpetration or attempt to perpetrate any arson, rape, robbery, kidnapping, burglary or other felony, shall be deemed to be murder in the first degree and shall be punished with death. All other kinds of murder shall be deemed murder in the second degree, and shall be punished by imprisonment for a term of not less than two years nor more than life imprisonment in the State’s prison.”
It was under this statute that the petitioners in this case were convicted of first-degree murder and the mandatory death sentences imposed.
The facts of record and the proceedings in this case leading to petitioners’ convictions for first-degree murder and their death sentences appear in the opinion of MR. Justice Stewart, Mr. Justice Powell, and Mr. Justice Stevens. The issues in the case are very similar, if not identical, to those in Roberts v. Louisiana, post, p. 325. For the reasons stated in my dissenting opinion in that case, I reject petitioners’ arguments that the death penalty in any circumstances is a violation of the Eighth Amendment and that the North Carolina statute, although making the imposition of the death penalty mandatory upon proof of guilt and a verdict of first-degree murder, will nevertheless result in the death penalty being imposed so seldom and arbitrarily that it is void under Furman v. Georgia. As is also apparent from my dissenting opinion in Roberts v. Louisiana, I also disagree with the two additional grounds which the plurality sua sponte offers for invalidating the North Carolina statute. I would affirm the judgment of the North Carolina Supreme Court.