State v. Spence

Bobbitt, J.,

concurring in part and dissenting in part:

Joseph Eugene Spence and Glenn O’Neil Williams, in separate indictments, were charged with the murder of Alton Artamous Maynard. The cases were consolidated for trial. As to each defendant, the jury returned a verdict of guilty of murder in the first degree and did not recommend that the punishment be imprisonment for life. In accordance with these verdicts and the provisions of G.S. 14-17, the trial judge, as to each defendant, pronounced a judgment imposing a death sentence. Upon appeal, this Court, as set forth fully in the opinion of Parker, C.J., found nothing in any of defendants’ assignments of error which “would justify another trial as to either defendant,” and upheld the verdicts and judgments. State v. Spence, 271 N.C. 23, 155 S.E. 2d 802.

Defendants filed a petition with the Supreme Court of the United States for a writ of certiorari to review the decision of this Court. The petition sets forth eight specific alleged violations of their constitutional rights. It was asserted inter alia that each had been denied “his constitutional right to trial by a jury of his peers when fifty-two per cent of the veniremen drawn are disqualified from serving on his jury merely because of a stated reluctance to return a death verdict.”

Pending action on defendants’ petition, the Supreme Court of the United States, on June 3, 1968, decided Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770. Petitions for certiorari had been filed in Jessie Ellison, Petitioner, v. Texas, and in Robert Eddie Louis Jackson, Petitioner, v. George J. Beto, Director, Texas Department of Corrections. On June 17, 1968, the Supreme Court of the United States in a per curiam order, applicable to the three cases, granted “the petitions for writs of certiorari,” and ordered: “The judgments of the courts below are vacated and the cases re*546manded for reconsideration in the light of Witherspoon v. Illinois 392 U.S. 649, 20 L. ed. 2d 1350, 88 S. Ct. 2290.

In Witherspoon v. Illinois, supra, the Supreme Court of the United States was reviewing on certioran the decision of the Supreme Court of Illinois in People v. Witherspoon, 36 Ill. 2d 471, 224 N.E. 2d 259 (1967), which had affirmed a Circuit Court’s dismissal of a petition filed by Witherspoon under the Illinois Post-Conviction Hearing Act.

In 1960, a jury had convicted Witherspoon of the murder of a police officer and had fixed his penalty at death. This judgment was affirmed by the Supreme Court of Illinois. People v. Witherspoon, 27 Ill. 2d 483, 190 N.E. 2d 281 (1963). In prior Illinois Post-Conviction and Federal Habeas Corpus proceedings the relief sought by Witherspoon had been denied. The ground on which Witherspoon sought relief in the proceedings now under consideration was asserted for the first time in the petition filed therein.

In granting certiorari, the Supreme Court of the United States limited consideration to the following question: “Whether the operation of the Illinois statute providing that the state could challenge for cause all prospective jurors who were opposed to, or had conscientious scruples against, capital punishment deprived the petitioner of a jury which fairly represented a cross section of the community, and assured the State of a jury whose members were partial to the prosecution on the issue of guilt or innocence, in violation of the petitioner’s rights under the Sixth and Fourteenth Amendments to the United States Constitution.” Witherspoon v. Illinois, 389 U.S. 1035, 19 L. ed. 2d 822, 88 S. Ct. 793.

In Witherspoon, Mr. Justice Stewart, expressing the views of five members of the Court, stated: “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.” Also, Mr. Justice Stewart stated: “We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. In light of the presently available information, we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was. ... It *547has not been shown that this jury was biased with respect to the petitioner’s guilt.” Footnote 21 oí the majority opinion includes the following: “Nor does the decision in this case affect the validity of any sentence other than one of death. Nor, finally, does today’s holding render invalid the conviction, as opposed to the sentence, in this or any other case.” The separate opinion of Mr. Justice Douglas, who considered the decision too narrow, epitomizes the holding of the majority in these words: “Although the Court reverses as to penalty, it declines to reverse the verdict of guilt rendered by the same jury.”

I reject the idea that jurors are “conviction-prone” simply because they have no conscientious or religious scruples against capital punishment. My experience as a trial judge convinces me they are not. The correctness of this view is demonstrated in Bumper v. North Carolina, 391 U.S. 543, 20 L. ed. 2d 797, 88 S. Ct. 1788.

It is noted that Mr. Justice Black, Mr. Justice Harlan and Mr. Justice White dissented from the decision in Witherspoon.

The clear decision of the majority in Witherspoon was (1) that the sentence of death could not be carried out, and (2) that the verdict establishing Witherspoon’s guilt was not disturbed. The decision of the Supreme Court of Illinois (1967), which had affirmed in all respects the Circuit Court’s dismissal of Witherspoon’s post-conviction petition, was “Reversed.” The word, “Reversed,” when considered in context with the opinion, signifies only that the Supreme Court of Illinois, upon remand of the case, would render decision in conformity with the opinion of Mr. Justice Stewart.

The Supreme Court of the United States, in its per curiam order of June 17, 1968, vacated the judgment (decision) of this Court (State v. Spence, 271 N.C. 23, 155 S.E. 2d 802) and remanded the case to us for reconsideration in the light of Witherspoon. Upon reconsideration, it is clear that, in accord with our prior decisions but contrary to the law as declared in Witherspoon, veniremen were excluded for cause “simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” Thus, under Witherspoon, the defendants cannot “constitutionally be put to death at the hands of a tribunal so selected.”

Under Witherspoon, the trial judge cannot exclude prospective jurors for cause simply because they voice general objections to the death penalty or express conscientious or religious scruples against the infliction of capital punishment. If, contrary to my opinion, pun*548ishment by death is permissible under our present statutes, it would '■seem a futile gesture for the prosecutor to ask jurors who have conscientious or religious scruples against capital punishment to exercise their “unbridled” discretion in favor of a verdict that would require the pronouncement of a death sentence.

I concur in the Court’s holding that the jury which tried defendants “did not meet the test laid down in Witherspoon.” I dissent from the conclusion that this entitled defendant to a new trial as to guilt and as to penalty. In my opinion, for reasons stated below, the verdicts of guilty of murder in the first degree should not be disturbed; the death sentences should be vacated; and the case should be remanded for the pronouncement of judgments of life imprisonment.

Article XI, Sec. 2, of the Constitution of North Carolina, provides: “The object of punishments being not only to satisfy justice, but also to reform the offender, and thus prevent crime, murder, arson, burglary, and rape, and these only, may be punishable with death, if the General Assembly shall so enact.”

North Carolina statutes containing provisions for punishment by death are quoted below.

G.S. 14-17 provides: “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. All other kinds of murder shall be deemed murder in the second degree, and shall be punished with imprisonment of not less than two nor more than thirty years in the State’s prison.”

G.S. 14-21 provides: “Every person who is convicted of ravishing and carnally knowing any female of the age of twelve years or more by force and against her will, or who is convicted of unlawfully and carnally knowing and abusing any female child under the age of twelve years, shall suffer death; Provided, if the jury shall so recommend at the time of rendering its verdict in open court, the punishment shall be imprisonment for life in the State’s prison, and the court shall so instruct the jury.”

G.S. 14-52 provides: “Any person convicted, according to due *549course of law, of the crime of burglary in the first degree shall suffer death: Provided, if the jury when rendering its verdict in open court shall so recommend, the punishment shall he imprisonment for life in the State’s prison, and the court shall so instruct the jury. Anyone so convicted of burglary in the second degree shall suffer imprisonment in the State’s prison for life, or for a term of years, in the discretion of the court.”

G.S. 14-58 provides: “Any person convicted according to due course of law of the crime of arson shall suffer death: Provided, if the jury shall so recommend, at the time of rendering its verdict in open court, the punishment shall be imprisonment for life in the State’s prison, and the court shall so instruct the jury.”

The italicized portion of each of the quoted statutes is incorporated therein by Chapter 299 of the Session Laws of 1949. Under the 1949 amendments, as interpreted by this Court, whether a jury, upon finding a defendant guilty of murder in the first degree, or of rape, or of burglary in the first degree, or of arson, shall recommend that the punishment be imprisonment for life in the State’s prison, is a matter within the “unbridled” discretion of the jury. State v. McMillan, 233 N.C. 630, 65 S.E. 2d 212; State v. Denny, 249 N.C. 113, 105 S.E. 2d 446. The opinion in McMillan states: “No conditions are attached to, and no qualifications or limitations are imposed upon, the right of the jury to so recommend.”

Although not the basis for my conclusion herein, reference is made to the opinion of Tobriner, J., with whom Traynor, C.J., and Peters, J., concurred, in the decision of the Supreme Court of California in In re Anderson, 73 Cal. Rptr. 21, 447 P. 2d 117, filed November 18, 1968. In this opinion, Justice Tobriner concurs in the majority (six) view that Witherspoon required that the Court “set aside the penalty previously imposed in the two cases now before us.” In addition, it expresses the minority (three) view that due process of law and the equal protection of the laws is denied when the issue of life or death is left to the “unbridled” discretion of a jury. The Chief Justice and six Associate Justices comprise the Supreme Court of California.

G.S. 15-162.1, the codification of Chapter 616 of the Session Laws of 1953, provides:

“(a) Any person, when charged in a bill of indictment with the felony of murder in the first degree, or burglary in the first degree, or arson, or rape, when represented by counsel, whether employed by the defendant or appointed by the court under G.S. 15-4 and 15-5, may, after arraignment, tender in writing, signed by such per*550son and his counsel, a plea of guilty of such crime; and the State, with the approval of the court, may accept such plea. Upon rejection of such plea, the trial shall be upon the defendant’s plea of not guilty, and such tender shall have no legal significance whatever.
“(b) In the event such plea is accepted, the tender and acceptance thereof shall have the effect of a jury verdict of guilty of the crime charged with recommendation by the jury in open court that the punishment shall be imprisonment for life in the State’s prison; and thereupon, the court shall pronounce judgment that the defendant be imprisoned for life in the State’s prison.
“(c) Unless and until the State accepts such plea, no reference shall be made in open court at the time of arraignment or at any other time to the tender or proposed tender of such plea; and the fact of such tender shall not be admissible as evidence either for or against the defendant in the trial or at any other time and place. The defendant shall have the right to withdraw such plea, without prejudice of any kind, until such time as it is accepted by the State.”

It is the province of the General Assembly to determine whether, as a matter of State policy, all or any of the crimes of murder, arson, burglary and rape, should be punished by death. I do not suggest the General Assembly is prohibited by the Constitution of the United States from providing for the punishment by death of a defendant who is convicted of (1) murder in the first degree, or (2) rape, or (3) burglary in the first degree, or (4) arson. Indeed, I perceive no constitutional defect in the provisions of the quoted statutes prior to the 1949 amendments and the enactment of Chapter 616 of the Session Laws of 1953. Our statutes, prior to the 1949 amendments, declared as the policy of the State of North Carolina that each of the four felonies referred to in Article XI, Sec. 2, of our Constitution, was punishable by death. Subsequent to the enactment of the 1949 amendments, whether the punishment was to be death or life imprisonment was to be determined by juries, case by case, rather than by a law applicable alike to all who committed these crimes. If provisions for capital punishment are to be retained in respect of any or all of these so-called capital felonies, constitutional pitfalls would be avoided if the provisions of the 1949 amendments and the provisions of G.S. 15-162.1 were repealed. However, these are matters for legislative consideration and determination.

My dissent from that portion of the Court’s decision which sets aside the verdicts and orders a new trial is based on the authority and underlying reasoning of the Supreme Court of the United States in United States v. Jackson, 390 U.S. 570, 20 L. ed. 2d 138, 88 S. *551Ct. 1209, decided April 8, 1968. In my view, the death penalty provisions of our present statutes, when considered in the light of Jackson, are invalid.

In Jackson, the Supreme Court of the United States held the death penalty• provision of the Federal Kidnapping Act (18 U.S.C. § 1201 (a)) invalid because it imposed an impermissible burden upon an accused’s exercise of his Fifth Amendment right not to plead guilty and his Sixth Amendment right to demand a jury trial. The remainder of the statute, the death penalty provision being separable, was held valid. Six of the nine members of the Supreme Court of the United States joined in the Jackson decision. Two, Mr. Justice Black and Mr. Justice White, dissented. Mr. Justice Marshall took no part in the consideration or decision of the case.

In Pope v. United States, 392 U.S. 651, 20 L. ed. 2d 1317, 88 S. Ct. 2145, decided June 17, 1968, the Supreme Court of the United States, based on its decision in Jackson, held the death penalty provision of the Federal Bank Robbery Act (18 U.S.C. § 2113(e)) was invalid but the remainder of the statute, the death penalty provision being separable, was valid. Seven of the nine members of the Supreme Court of the United States joined in this decision. Mr. Justice Black and Mr. Justice White dissented.

In Jackson, a Federal District Court in Connecticut dismissed the count in the indictment charging a violation of the Federal Kidnapping Act which, in pertinent part, provides: “Whoever knowingly transports in interstate . . . commerce, any person who has been unlawfully . . . kidnapped . . . and held for ransom ... or otherwise . . . shall be punished (1) by death if the kidnapped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed.” On the basis of these quoted provisions, the district court held the entire Act unconstitutional and quashed the portion of the indictment that charged a violation thereof. United States v. Jackson, 262 F. Supp. 716 (D. Conn. 1967). On direct appeal by the Government, the Supreme Court of the United States reversed the judgment of the district court and remanded the case for further proceedings consistent with its opinion. Mr. Justice Stewart closed his opinion for the Court with these words: “Thus the infirmity of the death penalty clause does not require the total frustration of Congress’ basic purpose — that of making interstate kidnapping a federal crime. By holding the death penalty clause of the Federal Kidnapping Act unenforceable, we leave the statute an operative whole, free of any constitutional *552objection. The appellees may be prosecuted for violating the Act, but they cannot be put to death under its authority.”

The Supreme Court of the United States has held (1) “that the Fifth Amendment’s exception from compulsory self-incrimination is also protected by the Fourteenth Amendment against abridgment by the States,” Malloy v. Hogan, 378 U.S. 1, 12 L. ed. 2d 653, 84 S. Ct. 1489, and (2) “that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which —were they to be tried in a federal court — would come within the Sixth Amendment’s guarantee,” Duncan v. Louisiana, 391 U.S. 145, 20 L. ed. 2d 491, 88 S. Ct. 1444. The question is whether our statutes contain the constitutional infirmity that caused the Supreme Court of the United States to declare invalid the death penalty provision of the Federal Kidnapping Act.

These excerpts from the opinion of Mr. Justice Stewart state the basis of - decision in Jackson.

(1) “Under the Federal Kidnapping Act, therefore, the defendant who abandons the right to contest his guilt before a jury is assured that he cannot be executed; the defendant ingenuous to seek a jury acquittal stands forewarned that, if the jury finds him guilty and does not wish to spare his life, he will die. Our problem is to decide whether the Constitution permits the establishment of such a death penalty, applicable only to those defendants who assert the right to contest their guilt before a jury. The inevitable effect of such provision is, of course, to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial.”

(2) “It is no answer to urge, as does the Government, that federal trial judges may be relied upon to reject coerced pleas of guilty and involuntary waivers of jury trial. For the evil in the federal statute is not that it necessarily coerces guilty pleas and jury waivers but simply that it needlessly encourages them. A procedure need not be inherently coercive in order that it be held to impose an impermissible burden upon the assertion of a constitutional right. Thus the fact that the Federal Kidnapping Act tends to discourage defendants from insisting upon their innocence and demanding trial by jury hardly implies that every defendant who enters a guilty plea to a charge under the Act does so involuntarily. The power to reject coerced guilty pleas and involuntary jury waivers might alleviate, but it cannot totally eliminate, the constitutional infirmity in the capital punishment provision of the Federal Kidnapping Act.”

The Federal Kidnapping Act, as construed in Jackson, provides *553the death penalty shall be imposed if the jury so recommends. Our statutes provide the death penalty shall be imposed unless the jury recommends life imprisonment. If there be any real difference, it would seem that the pressure upon a defendant to enter a plea that will avoid “the risk of death” would be greater under our statutes.

This difference is noted. In North Carolina, certainly in respect of all felony eases, a defendant cannot plead not guilty, waive a jury trial and have his guilt determined by the trial judge. Article I, Section 13, of the Constitution of North Carolina; State v. Camby, 209 N.C. 50, 182 S.E. 715, and cases cited. (Note: Prior to the adoption of G.S. 15-162.1, the court would not under any circumstances accept a plea of guilty of murder in the first degree. State v. Blue, 219 N.C. 612, 14 S.E. 2d 635; State v. Simmons, 236 N.C. 340, 72 S.E. 2d 743.) Rule 23(a) of the Federal Rules of Criminal Procedure provides: “Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the Government.” (Our italics.) Hence, in federal prosecutions, a defendant has no absolute right to waive jury trial and have his guilt determined by a judge rather than by a jury.

Our statutes provide that the tender by a defendant of a plea of guilty to a capital offense has no legal significance unless and until the tendered plea is accepted for the State by the solicitor (our prosecuting attorney) with the approval of the presiding judge. Rule 11 of the Federal Rules of Criminal Procedure provides: “A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear the court shall enter a plea of not guilty. The court shall not enter a judgment upon a .plea of guilty unless it is satisfied that there is a factual basis for the plea.” Hence, a defendant in a federal prosecution cannot require acceptance of his plea as a matter of right.

In Jackson, Mr. Justice Stewart states: “It is true that a defendant has no constitutional right to insist that he be tried by a judge rather than a jury, Singer v. United States, 380 U.S. 24, 13 L. ed. 2d 630, 85 S. Ct. 783, and it is also true" ‘that a criminal defendant has (no) absolute right to have his guilty plea accepted by the *554court.’ Lynch v. Overholser, 369 U.S. 705, 719, 8 L. ed. 2d 211, 220, 82 S. Ct. 1063.”

In my view, the grounds on which the Supreme Court of the United States invalidated the death penalty provision of the Federal Kidnapping Act apply with equal force to our statutes and invalidate the death penalty provisions thereof. I am fully aware of the force and impact of this conclusion. However, in my judgment, under our present statutes, no sentence of death can be upheld as valid, and a trial ending in a death sentence is a futile expenditure ■of time, money and human resources. In any event, the question should be drawn into sharp focus and settled definitively by the Supreme Court of the United States as soon as possible.

The Court’s opinion in State v. Peele, 274 N.C. 106, 161 S.E. 2d 568, after setting forth differences between the provisions of the Federal Kidnapping Act and the North Carolina Statutes codified as G.S. 14-21 and G.S. 15-162.1, expresses the view “that Jackson is not authority for holding the death penalty in North Carolina may not be imposed under any circumstances for the crime of rape.” In my opinion, then and now, the statement was dictum, unnecessary to decision of the question presented by that appeal. Peele pleaded not guilty. The jury convicted him of rape and recommended that his punishment be imprisonment for life. In accordance with the verdict, judgment of life imprisonment was entered. The validity of a death penalty was not involved. Jackson was relevant to the factual situation under consideration in Peele only as authority for the proposition that the death penalty provision, if invalid, was separable; and that, since the felony of rape existed as theretofore, the motion to quash the indictment was properly overruled.

The Court of Appeals in Parker v. State, 2 N.C. App. 27, 162 S.E. 2d 526, reviewing on certiorari a judgment dismissing a post-conviction petition, cited and quoted from State v. Peele, supra, and expressed views in accordance with the expressions in Peele. The decision of the Court of Appeals in Parker v. State, supra, under G.S. 7A-28 and G.S. 7A-31, was not subject to further review by this Court. In my view, G.S. 7A-28 and G.S. 7A-31 should be amended promptly to the end that decisions of the Court of Appeals in post-conviction proceedings will be subject to review by this Court. Frequently, as in Parker v. State, supra, most serious constitutional questions are presented for decision in post-conviction proceedings.

South Carolina and New Jersey have statutory provisions similar to ours. Confronted by Jackson, the Supreme Court of South Car*555olina, in State v. Harper, ..... S.C. ....., 162 S.E. 2d 712 (1968), and the Supreme Court of New Jersey, in State v. Forcella, 52 N.J. 263, 245 A. 2d 181 (1968), held unconstitutional and invalid statutes similar to our G.S. 15-162.1 and retained as valid their statutory provisions providing for the death penalty. I perceive no basis for declaring G.S. 15-162.1 unconstitutional and invalid. The policy decision is for the General Assembly. The General Assembly must decide whether the death penalty is to be retained by statutory amendments involving the repeal of G.S. 15-162.1 or whether our statutory provisions are to be so modified as to provide for punishment by life imprisonment when a person is convicted or pleads guilty to one of the crimes heretofore denominated a capital felony. In this respect, my views are in full accord with those expressed in the dissenting opinion of Justices Jacobs and Hall in State v. Forcella, supra.

The conclusions I reach are these: Under Witherspoon, the verdicts of guilty of murder in the first degree are not disturbed. Under Jackson, the death penalty, under our present statutes, is invalidated. Under our statutes, the punishment for murder in the first degree is either death or life imprisonment. Upon invalidation of the death penalty, the only permissible punishment is life imprisonment. Consequently, my vote is to vacate the death sentences and to remand the case to the superior court for the pronouncement as to each defendant of a judgment of life imprisonment.

The foregoing opinion was written prior to the filing on November 26, 1968, of the opinions in the split decision (two to one) of a panel of the Court of Appeals for the Fourth Circuit in Alford v. North Carolina, 405 F. 2d 340 (4th Cir. 1968). Cf. Townes v. Peyton, 404 F. 2d 456 (4th Cir. 1968).

Alford was not confronted with the necessity (1) of pleading guilty to murder in the first degree and receiving a sentence of life imprisonment, or (2) of pleading not guilty and thereby risking conviction by the jury, without recommendation of life imprison-cent, and a death sentence. The State did not require Alford to tender a plea of guilty of murder in the first degree in order to avoid the possibility of a death sentence. The State accepted his plea of guilty of murder in the second degree, for which the maximum punishment is imprisonment for thirty years; and, by defendant’s tender and the State’s acceptance of this plea to an included lesser degree-of unlawful homicide, the defendant avoided the possibility of a sentence of life imprisonment. In my opinion, Jackson applies when,, but only when, a plea of guilty of murder in the first degree is exacted as the only means by which a defendant may avoid the possibility of the death penalty.

*556I disagree sharply with the idea that a defendant, who is charged with murder as provided in G.S. 15-144 and is represented by counsel, acts under coercion when, on account of the weight or strength of the evidence tending to establish his guilt, he pleads guilty to murder in the second degree or to manslaughter, voluntary or involuntary. Nor, under like circumstances, do I think a defendant charged with rape acts under coercion when he pleads guilty to an assault with intent to commit rape or to an assault on a female by a male person over the age of eighteen years. Nor, under like circumstances, do I think a person acts under coercion when, charged with burglary in the first degree, arson, or other felony, he pleads guilty to “a less degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a less degree of the same crime.” G.S. 15-170.. Nor, under like circumstances, do I think a person acts under coercion when, charged with a felony, he pleads guilty to an included misdemeanor, e.g., when indicted for larceny of personal property of the value of more than $200.00, a felony, he pleads guilty to larceny of personal property of the value of $200.00 or less, a misdemeanor.

True, apart from Jackson, a defendant’s plea of guilty to any criminal offense must be vacated if in fact it is not made voluntarily and understandingly. However, when a defendant elects to tender a plea of guilty to an included crime of less degree, both he and his counsel necessarily take into consideration the evidence of the State, the evidence available to the defendant, and all other factors pertinent to the advisability of tendering such plea, including the possibility of conviction by the jury of the crime charged, or of a more serious included lesser degree thereof, and the risk of greater punishment pursuant to such conviction.

Shaep, J., joins in this opinion.