concurring in result.
The court found that defendant had knowingly and intentionally waived in writing his right to be represented by counsel at the lineup at which Mrs. Boras and Mrs. Williams identified him.
The lineup was on March 2, 1971, the date the crime was committed. G.S. 7A-457 (a) then provided that waiver of counsel by an indigent person “shall not be allowed in a capital case.”
Whether a nonindigent person could have successfully contended that he was entitled to the same protection it purported to confer on an indigent person is not presented. I do not share the view that the State’s counsel have standing to challenge as unconstitutional a right which the General Assembly saw fit to confer on an indigent person.
Defendant, an indigent, relies upon this provision of G.S. 7A-457 (a) and Was in fact represented by counsel in all in-court proceedings. I do not share the view that the State’s counsel have standing to challenge this statutory provision as unconstitutional on the ground that some other indigent defendant may assert his constitutional right to refuse representation by counsel. This case involves a waiver of the right to counsel, not the right to refuse representation by counsel.
My concurrence in result is on a different basis. As used in G.S. 7A-457(a), a “capital case” is a criminal prosecution for a crime which is or may be punished by death. Under the June 29, 1972, decision of the Supreme Court of the United States in Furman v. Georgia, 408 U.S. 238, 33 L.Ed. 2d 346, 92 S.Ct. 2726, punishment by death is not permissible under statutory provisions such as those incorporated in North Caro-
*675lina statutes. By its decision in Furman, the Supreme Court invalidated and rendered obsolete that portion of G.S. 7A-457 (a) which related solely to a “capital case.”
Justices Higgins and Sharp join in this concurring in result opinion.