concurring in part and dissenting in part.
I agree with the majority’s conclusion that “the Furman decision [Furman v. Georgia, 408 U.S. 238, 33 L.Ed. 2d 346, 92 S.Ct. 2726 (1972)] holds that the Eighth and Fourteenth Amendments will no longer tolerate the infliction of the death sentence if either judge or jury is permitted to impose that sentence as a matter of discretion.” Under North Carolina statutes, whether the punishment for first degree murder, or rape, or burglary in the first degree, or arson, is to be death or life imprisonment depends solely on how the jury exercises its unbridled discretion.
Prior to Furman, this Court had sustained the convictions and death sentences in State v. Miller, 276 N.C. 681, 174 S.E. 2d 481 (1970); State v. Hamby and Chandler, 276 N.C. 674, 174 S.E. 2d 385 (1970); State v. Chance, 279 N.C. 643, 185 S.E. 2d 227 (1971); State v. Westbrook, 279 N.C. 18, 181 S.E. 2d 572 (1971); and State v. Doss, 279 N.C. 413, 183 S.E. 2d 671 (1971). On authority of Furman, the Supreme Court of the United States vacated the judgment (s) in each of these cases “insofar as it [left] undisturbed the death penalty imposed,” and remanded the case to this Court for further proceedings. Miller v. North Carolina, 408 U.S. 937, 33 L.Ed. 2d 755, 92 S.Ct. 2863 (1972); Hamby and Chandler v. North Carolina, 408 U.S. 937, 33 L.Ed. 2d 754, 92 S.Ct. 2862 (1972); Chance v. North Carolina, 408 U.S. 940, 33 L.Ed. 2d 764, 92 S.Ct. 2878 (1972); Westbrook v. North Carolina, 408 U.S. 939, 33 L.Ed. 2d 761, 92 S.Ct. 2873 (1972); Doss v. North Carolina, 408 U.S. 939, 33 L.Ed. 2d 762, 92 S.Ct. 2875 (1972). Thereupon, this Court remanded each of these cases to the superior court which had tried it with direction that judgments imposing a sentence of life imprisonment be pronounced. 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).
The decision on this appeal is that Furman requires that this Court vacate the death sentence and remand this case to the superior court for the pronouncement of judgment imposing a life sentence. I emphatically agree with this decision. Moreover, I do not think any death sentence may be constitutionally in*454flicted unless owr General Assembly strikes from our present statutes the provisions which leave to the unbridled discretion of a jury whether the punishment shall be death or life imprisonment. In my opinion, this Court has no right to ignore, delete or repeal these provisions, which were put there by the General Assembly as an integral part of its plan for the punishment of crimes for which the death sentence was permissible. Furman did not repeal them. This Court has no right to repeal them.
While unnecessary to the disposition of this appeal, the majority opinion states the views of four members of this Court with reference to the conduct of trials and the sentencing of defendants in the future for crimes of murder in the first degree, rape, burglary in the first degree and arson committed subsequent to the present decision. Since the decision in Furman, several cases have been tried in our superior courts in which the defendants were convicted and sentenced to life imprisonment when the jury returned verdicts of guilty (no recommendation as to punishment being involved) and at least two cases in which upon a like verdict the defendant received a death sentence. My dissent is not directed to the fact that the majority are giving an advisory opinion or directive to our superior court judges with reference to crimes committed subsequent to Furman. Although the appeals in these cases will come to us in due course, I agree that our superior court judges are now entitled to some directive from this Court. The ground on which I dissent is that the majority are giving what I consider to be the wrong advisory opinion or directive.
The views expressed in the majority opinion to which I dissent may be summarized as follows: The Furman decision invalidates the portion of G.S. 14-21 which reads: “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 invalidation of this provision leaves intact that portion of the statute which precedes it and provides for punishment by death. The Furman decision does not invalidate the death penalty under present North Carolina statutes. It makes death the sole and exclusive punishment for rape. However, the death penalty is not to be imposed and carried out except for crimes committed subsequent to the filing of this decision.
If Furman had decided that the portion of G.S. 14-21 quoted above was separable and invalid and that death is now *455the sole and exclusive punishment for rape, such decision would apply to all rapes committed subsequent to 29 June 1972, the date Furman was decided. But this was not the decision in Furman. Furman simply held that the death penalty provision of G.S. 14-21 as now constituted was invalid and that, absent amendment, no death sentence can be constitutionally imposed and carried out. The dismemberment of G.S. 14-21, and the declaration that death is the sole and exclusive punishment for rape, are neither required nor warranted by the decision in Furman.
Under Article XI, §§ 1 and 2, of the Constitution of North Carolina, the General Assembly is authorized to provide that the crimes of murder, rape, burglary and arson, and these only, may be punishable by death. Pursuant thereto, the General Assembly has enacted statutes which provide that a person convicted of first degree murder, G.S. 14-17, or of rape, G.S. 14-21, or of first degree burglary, G.S. 14-52, or of arson, G.S. 14-58, shall suffer death unless the jury, at the time of rendering its verdict in open court, recommends that the defendant’s punishment shall be imprisonment for life in the State’s prison.
There has been no change in any of the provisions of G.S. 14-17, G.S. 14-21, G.S. 14-52, and G.S. 14-58, since the enactment of Chapter 299, Session Laws of 1949, which contains the following: “Sec. 4. Section 14-21 of the General Statutes of North Carolina is hereby rewritten so as to read as follows:
“See. 14-21. Punishment for rape. 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.” (Our italics.)
Sections 14-17, 14-52 and 14-58 of the General Statutes were rewritten by sections 1, 2 and 3 of Chapter 299, Session Laws of 1949. As rewritten they prescribed in like manner the punishment for murder in the first degree, burglary in the first degree and arson, respectively.
Our General Assembly has provided that no death sentence can be pronounced unless (1) the jury is instructed that the *456mandatory punishment will be death unless the jury when returning its verdict in open court recommends that the punishment be imprisonment for life in the State’s prison, and unless (2) notwithstanding such instruction the jury returns a verdict of guilty and does not recommend that the punishment be imprisonment for life in the State’s prison. Subsequent to the enactment of the 1949 Act, whether the punishment for murder in the first degree, or for rape, or burglary in the first degree, or for arson was to be death or life imprisonment was to be determined by juries, case by case, rather than by law applicable to all who committed crimes bearing those names. This Court consistently held that no constitutional right of a defendant was violated by provisions which authorized the 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, to determine whether the punishment was to be death or imprisonment for life, notwithstanding the absence from the statute of any standards to guide the jury in making that determination.
Notwithstanding our decisions upholding G.S. 14-17, G.S. 14-21, G.S. 14-52 and G.S. 14-58, the possibility that the Supreme Court of the United States would render a decision substantially like the decision in Furman had been anticipated. In the report submitted by the Judicial Council for consideration by the General Assembly of 1969, attention was called to this possibility. If the General Assembly wished to continue the death penalty for the crime of rape, it was recommended that G.S. 14-21 be amended by striking the following: “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.” Similar recommendations were made with reference to G.S. 14-17 (first degree murder), G.S. 14-52 (first degree burglary) and G.S. 14-58 (arson). To implement these recommendations, bills were prepared and introduced. H.B. No. 136 (relating to rape, first degree burglary and arson), and H.B. No. 137 (relating to murder in the first degree), were referred to Judiciary Committee No. 2 of the House. Both received unfavorable reports. The General Assembly, although advised that the provision for the imposition of a death sentence might be held invalid, refused to prescribe death as the punishment for rape without providing for the alternative of life imprisonment if the jury so recommended.
*457H.B. No. 397 was introduced in the General Assembly of 1971. Section 2 thereof provided: “Sec. 2. G.S. 14-21 is hereby amended by striking the following words: ‘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 by inserting in lieu thereof the following words: ‘shall suffer punishment by imprisonment for life in the State’s prison.’ ” Sections 1, 3 and 4 of H.B. No. 397 provided for the amendment in like manner of the provisions of G.S. 14-17, G.S. 14-52 and G.S. 14-58 relating to punishment for murder in the first degree, burglary in the first degree and arson. H.B. No. 397 was referred to and (as amended) reported favorably by Judiciary Committee No. 2 but failed to pass the House on second reading.
The reasonable inference from the foregoing is that the General Assembly wanted G.S. 14-17, G.S. 14-21, G.S. 14-52 and G.S. 14-58 to remain exactly as they had been since 1949 and as upheld by the decisions of this Court. All provisions of G.S. 14-21 relate to the single subject indicated by the caption, to wit, “Punishment for rape.” The provisions thereof constitute a single legislative plan. Only the death penalty provision was invalidated by Furman.
It is the decision of a majority of this Court — not the decision in Furman — which dismembers G.S. 14-21 and declares a particular portion thereof invalid and undertakes — in direct conflict with Furman — to validate the death penalty provision of G.S. 14-21 and adjudge that under present statutes death is the sole and exclusive punishment for rape. The main thrust of Furman is to restrict the circumstances in which capital punishment may be imposed. It is not only legally unsound but ironic and unrealistic to use Furman as a basis for holding that hereafter under present statutes death will be the sole permissible punishment for rape.
Whether the General Assembly would have prescribed death or life imprisonment if it had been confronted with the necessity of making that decision cannot be answered. In my view, this question must be answered now by the General Assembly rather than by this Court’s speculation as to what the General Assembly at previous sessions would have done if they had been confronted with the necessity of making that decision.
The reliance placed by the majority on United States v. Jackson, 390 U.S. 570, 20 L.Ed. 2d 138, 88 S.Ct. 1209 (1968), *458invites further consideration of that decision. In Jackson, the death penalty provision of the Federal Kidnapping Act (18 U.S.C. § 1201 (a)) was held 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. In Pope v. United States, 392 U.S. 651, 20 L.Ed. 2d 1317, 88 S.Ct. 2145 (1968), based on Jackson, the death penalty provision of the Federal Bank Robbery Act (18 U.S.C. § 2113(e)) was held invalid. No other provision of either of these statutes was invalidated.
The provision for punishment by death “if the verdict of the jury shall so recommend” considered in Jackson was incorporated in the Federal Kidnapping Act when rewritten by the Act of May 18, 1934, 48 Stat. 781-82. The death penalty provision considered in Pope was a part of the original Federal Bank Robbery Act of May 18, 1934, 48 Stat. 783. Section 3 provided that the violation thereof “shall be punished by imprisonment for not less than 10 years, or by death if the verdict of the jury shall so direct.” No statute amending or rewriting the original Act was involved.
Whether the death penalty provision was a part of the original act or incorporated by later amendment or rewriting was not the basis of decision in either Jackson or Pope. Moreover, the decisions in Jackson and Pope were not based upon the discretionary power granted to the jury. They were based upon the fact that Rule 23 (a) of the Federal Rules of Criminal Procedure provided: “Cases required to be tried by a 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.” Under this rule, if a defendant was permitted to plead guilty or to waive a jury trial, he would thereby avoid the possibility of a death sentence.
In State v. Anderson, 281 N.C. 261, 188 S.E. 2d 336 (1972), the defendant appealed to this Court from a judgment which imposed death sentences based on verdicts of guilty of murder in the first degree (without recommendation of life imprisonment). The murders for which defendant was indicted and convicted were committed on 29 June 1971.
The opinion in State v. Anderson, supra at 267, 188 S.E. 2d at 340, states: “Jackson and Pope stand for the proposition that every defendant has a constitutional right to plead *459not guilty and that the Federal Constitution does not permit the establishment of a death penalty applicable only to those defendants who assert their constitutional right to contest their guilt before a jury.”
Chapter 616, Session Laws of 1953, codified as G.S. 15-162.1, provided in pertinent part as follows: “(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 G.S. 15-5, may, after arraignment, tender in writing, signed by such person and his counsel, a plea of guilty of such crime; and the State, with the approval of the court, may accept such plea. ... (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.”
This Court, being of the opinion that the procedure authorized by G.S. 15-162.1 did not preclude a sentence of death after a conviction by a jury without recommendation of life imprisonment, upheld the convictions and death sentences in the following cases: State v. Atkinson (murder), 275 N.C. 288, 167 S.E. 2d 241 (1969); State v. Hill (murder), 276 N.C. 1, 170 S.E. 2d 885 (1969) ; State v. Roseboro (murder), 276 N.C. 185, 171 S.E. 2d 886 (1970); State v. Sanders (murder), 276 N.C. 598, 174 S.E. 2d 487 (1970); State v. Williams (murder), 276 N.C. 703, 174 S.E. 2d 503 (1970); State v. Atkinson (rape), 278 N.C. 168, 179 S.E. 2d 410 (1971).
Subsequently, based on Jackson and Pope, the Supreme Court of the United States reversed the judgments in these cases “insofar as [they] impose [d] the death sentence” and remanded the cases to this Court for further proceedings. Atkinson v. North Carolina, 403 U.S. 948, 29 L.Ed. 2d 859, 91 S.Ct. 2283 (1971); Hill v. North Carolina, 403 U.S. 948, 29 L.Ed. 2d 860, 91 S.Ct. 2287 (1971); Roseboro v. North Carolina, 403 U.S. 948, 29 L.Ed. 2d 860, 91 S.Ct. 2289 (1971); Sanders v. North Carolina, 403 U.S. 948, 29 L.Ed. 2d 860, 91 S.Ct. 2290 (1971); Williams v. North Carolina, 403 U.S. 948, 29 L.Ed. 2d *460860, 91 S.Ct. 2290 (1971); Atkinson v. North Carolina, 403 U.S. 948, 29 L.Ed. 2d 861, 91 S.Ct. 2292 (1971).
Thereafter, this Court remanded each of these cases to the superior court where it was tried with directions that judgments imposing sentences of life imprisonment be pronounced. State v. Atkinson, 279 N.C. 386, 183 S.E. 2d 106 (1971); State v. Hill, 279 N.C. 371, 183 S.E. 2d 97 (1971); State v. Roseboro, 279 N.C. 391, 183 S.E. 2d 108 (1971); State v. Sanders, 279 N.C. 389, 183 S.E. 2d 107 (1971); State v. Williams, 279 N.C. 388, 183 S.E. 2d 106 (1971); State v. Atkinson, 279 N.C. 385, 183 S.E. 2d 105 (1971).
In the report submitted by the Judicial Council for consideration by the General Assembly of 1969, attention was called to the possibility that the Supreme Court of the United States would hold that a death sentence could not be imposed and carried out if a defendant could avoid the possibility of a death sentence by pleading guilty and thereby surrendering his right to jury trial. If the General Assembly wished to continue the death penalty, it was recommended that G.S. 15-162.1 be repealed. G.S. 15-162.1 was repealed by Chapter 117, Session Laws of 1969. It is here noted that G.S. 15-162.1 was not detached and invalidated by the decisions of the Supreme Court of the United States in the six cases referred to above.
As noted in State v. Anderson, supra: “[F]or some obscure reason, the General Assembly reenacted the provisions of G.S. 15-162.1 by Chapter 562 of the 1971 Session Laws, effective 15 June 1971. Then, apparently to correct the error, G.S. 15-162.1 was again repealed by enactment of Chapter 1225 of the 1971 Session Laws, effective 21 July 1971. It thus appears that from 15 June 1971 to 21 July 1971 the death penalty provisions of our statutes once again applied only to those defendants who asserted their right to plead not guilty. United States v. Jackson, supra; Pope v. United States, supra; Atkinson v. North Carolina, supra. Here, the murders were committed on 29 June 1971 while the provisions of G.S. 15-162.1 were in effect, and therefore the death sentences in these cases are unconstitutional and cannot be carried out. Hill v. North Carolina, supra [403 U.S. 948, 29 L.Ed. 2d 860, 91 S.Ct. 2287].” The murders having been committed when (reinstated) G.S. 15-162.1 was in effect, this Court vacated the death sentences and remanded the cases to the superior court for the pronouncements of judgments imposing sentences of life imprisonment.
*461From 1953 until the repeal of G.S. 15-162.1, North Carolina’s legislative plan in respect of the death penalty was embodied in G.S. 14-17, G.S. 14-21, G.S. 14-52, G.S. 14-58 and in G.S. 15-162.1. Although enacted in 1953 as a separate statute, G.S. 15-162.1 was in pari materia with G.S. 14-17, G.S. 14-21, G.S. 14-52 and G.S. 14-58 as rewritten in 1949. Hence, G.S. 15-162.1 had to be considered as if its provisions were incorporated in G.S. 14-17, G.S. 14-21, G.S. 14-52 and G.S. 14-58 as rewritten in 1949. When the Supreme Court of the United States, on authority of Jackson and Pope, vacated the death sentences which this Court had upheld in Atkinson, Roseboro, Sanders, and Williams, it did not hold that G.S. 15-162.1 was invalid. As this Court recognized in State v. Anderson, supra, what the Supreme Court held was that so long as G.S. 15-162.1 remained a part of our legislative plan, no death sentence could be imposed or carried out. This objection could be and was removed by the repeal of G.S. 15-162.1. In like manner, the decision in Furman does not invalidate any particular clause of G.S. 14-17, G.S. 14-21, G.S. 14-52 or G.S. 14-58. It simply holds that no death sentence can be imposed and carried out as long as our statute contains provisions which leave to the unbridled discretion of a jury whether the punishment shall be death or life imprisonment.
The Furman decision was filed 29 June 1972. Its impact upon state statutes similar to our G.S. 14-17, G.S. 14-21, G.S. 14-52 and G.S. 14-58 was considered in the decisions discussed below.
In State v. Johnson, 31 Ohio St. 2d 106, 285 N.E. 2d 751 (1972), the jury found the defendant guilty of murder in the first degree and did not recommend mercy. His appeal from a death sentence was decided by the Supreme Court of Ohio on 19 July 1972. The pertinent portion of the Ohio statute provided : “Whoever violates this section is guilty of murder in the first degree and shall be punished by death unless the jury trying the accused recommends mercy, in which case the punishment shall be imprisonment for life.” Ohio R.C. § 2901.01 (1954).
The following excerpts from the opinion of Justice Brown set forth the disposition of the appeal and the rationale of the Court’s decision:
“The United States Supreme Court, in Furman v. Georgia . . . has held that the carrying out of a death penalty imposed *462at the discretion of the trier of the facts constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution.
“Under that holding, which we are required to follow, the infliction of the death penalty under the existing law of Ohio is now unconstitutional (with the possible exception of the taking of the life or attempting to take the life of the President, Vice President, or a person in the line of succession to the presidency [R.C. 2901.09], or of the Governor or Lieutenant Governor [R.C. 2901.10], which statutes purport to impose a mandatory penalty of death).
“We have reviewed the record of the proceedings in this case and find ample evidence of guilt of murder in the first degree.
* * *
“It is our conclusion that, except as to the death sentence, the judgment of the Court of Appeals is affirmed. With regard to the death sentence, the judgment of the Court of Appeals must be modified and the sentence is reduced to life imprisonment, as prescribed in R.C. 2901.01.”
In Capler v. State, Miss., 268 So. 2d 388 (1972), the defendant was convicted of murder and sentenced to suffer death. His conviction and sentence were affirmed by the Supreme Court of Mississippi, which also denied his petition for a rehearing. The Supreme Court of the United States granted his petition for certiorari and ordered “that the judgment of the Supreme Court of Mississippi in this case be vacated insofar as it leaves undisturbed the death penalty imposed and that this cause be remanded to the Supreme Court of the State of Mississippi for further proceedings.” Capler v. Mississippi, 408 U.S. 937, 33 L.Ed. 2d 754, 92 S.Ct. 2862 (1972). This order and mandate followed the decision in Fu/rman.
The pertinent Mississippi statute provided: “Every person who shall be convicted of murder shall suffer death, unless the jury rendering the verdict shall fix the punishment at imprisonment in the penitentiary for the life of the convict; or unless the jury shall certify its disagreement as to the punishment as provided by section 1293 [Code of 1930; § 2536, Code of 1942] in which case the court shall fix the punishment at imprisonment for life.” Miss. Code of 1942, § 2217 (1957). Upon further consideration, the Supreme Court of Mississippi remanded the *463case to the trial court for the pronouncement of a judgment of life imprisonment. The rationale of this decision is empitomized by Chief Justice Gillespie in these words: “The only infirmity in section 2217 is that the harsher penalty of death may not lawfully be imposed. The remaining part of the statute is complete, and it does not follow that the remaining provision providing for imprisonment in the penitentiary for the life of the defendant must fall. We hold that because of the decision in Furman v. Georgia the death penalty cannot be inflicted; that the remainder of the statute is valid, and the only other punishment for murder is life imprisonment.” Accord, Peterson v. State, Miss., 268 So. 2d 335 (1972).
In State v. Square, La., 268 So. 2d 229 (1972), the defendant’s conviction of murder and the death sentence pronounced thereon had been affirmed by the Supreme Court of Louisiana but the Supreme Court of the United States, citing Stewart v. Massachusetts, 408 U.S. 845, 33 L.Ed. 2d 744, 92 S.Ct. 2845 (1972), following Furman v. Georgia, vacated the judgment insofar as it left undisturbed the death penalty imposed and remanded the case for further proceedings. 408 U.S. 938, 33 L.Ed. 2d 760, 92 S.Ct. 2871 (1972). The pertinent portion of the Louisiana statute provided: “In a capital case the jury may qualify its verdict of guilty with the addition of the words ‘without capital punishment,’ in which case the punishment shall be imprisonment at hard labor for life.” L.S.A.C.Cr.P. art. 817 (1967).
Upon consideration upon remand, the per curiam opinion of the Supreme Court of Louisiana contains the following:
“We construe the Mandate of the United States Supreme Court to require the imposition of a sentence other than death. Cf., State v. Shaffer, 260 La. 605, 257 So. 2d 121 (1971) and State v. Duplessis, 260 La. 644, 257 So. 2d 135 (1971).
“Accordingly, in compliance with the Mandate of the United States Supreme Court, the death sentence imposed upon defendant is annulled and set aside, and the case is remanded to the 4th Judicial District Court with instructions to the trial judge to sentence the defendant to life imprisonment.
“Case remanded.”
In Garcia v. State, 501 P. 2d 1128 (Okla. Crim. 1972), the jury found the defendant guilty of murder and fixed his *464punishment at death. The pertinent Oklahoma statute provided: “Every person convicted of murder shall suffer death, or imprisonment at hard labor in the State penitentiary for life, at the discretion of the jury. Upon trial of an indictment for murder, the jury, if they find the defendant guilty, must designate in their verdict whether he shall be punished by death or imprisonment for life at hard labor, and the judgment of the court shall be in accordance therewith. But upon a plea of guilty the court shall determine the same.” 21 Okla. Stat. Ann. § 707 (1958). On 21 June 1972, the Court of Criminal Appeals of Oklahoma affirmed the conviction and death sentence. However, that decision was modified 26 October 1972, on rehearing, at which time the following order was entered: “In the light of Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas . . . the judgment and sentence of death by electrocution is modified to a term of life imprisonment, and as so Modified, the judgment and sentence is Affirmed.” 501 P. 2d at 1141.
In People v. Speck, Ill., 287 N.E. 2d 699 (1972), the jury found the defendant guilty of murder in each of eight cases. His convictions and the death sentences pronounced thereon were affirmed by the Supreme Court of Illinois. However, the Supreme Court of the United States reversed each judgment insofar as it imposed a death sentence.
The pertinent portions of the Illinois statutes (S.H.A. ch. 38 (1972)) are quoted below:
Ҥ 9-1. Murder
* * *
“(b) Penalty.
“A person convicted of murder shall be punished by death or imprisonment in the penitentiary for any indeterminate term with a minimum of not less than 14 years. If the accused is found guilty by a jury, a sentence of death shall not be imposed by the court unless the jury’s verdict so provides in accordance with Section 1-7 (c) (1) of this Code.”
* * *
Ҥ 1-7. Judgment, Sentence and Related Provisions
* * *
“(c) Capital Offenses.
*465“(1) Where, upon a trial by jury, a person is convicted of an offense which may be punishable by death, the jury may return a verdict of death. Where such verdict is returned by the jury, the court may sentence the offender to death or to imprisonment. Where such verdict is not returned by the jury, the court shall sentence the offender to imprisonment.”
Upon remand of the Speck case, Justice Schaefer, speaking for the Supreme Court of Illinois, said: “The Supreme Court has now held that a defendant could not be validly sentenced to death under the same Illinois statutes that are applicable to this case. (Moore v. Illinois (1972), _ U.S. _, 92 S.Ct. 2562, 38 L.Ed. 2d 706; Furman v. Georgia. . . . ) Therefore, the death penalty cannot be reimposed on the defendant, and the only remaining question is the procedure to be followed in resentencing him to a sentence other than death.”
In Commonwealth v. Bradley, Pa., 295 A. 2d 842 (1972), the jury found the defendant guilty of murder in the first degree and fixed the penalty at death. On direct appeal, the conviction was affirmed but the death sentence was vacated and the defendant was sentenced to life imprisonment. The pertinent portion of the Pennsylvania statute provided: “Whoever is convicted of the crime of murder of the first degree is guilty of a felony and shall be sentenced to suffer death in the manner provided by law, or to undergo imprisonment for life, at the discretion of the jury trying the case, which shall, in the manner hereinafter provided, fix the penalty.” 18 Pa. Stat. Ann. § 4701 (1963). The ground of decision was stated by Justice Roberts as follows: “In Furman v. Georgia, . . . the United States Supreme Court recently held that the imposition of the death penalty under statutes such as the one pursuant to which the death penalty was imposed upon appellant is violative of the Eighth and Fourteenth Amendments. Accordingly, appellant’s sentence of death may not now be imposed.” 295 A. 2d at 845. (Our italics.) Accord, Commonwealth v. Sharpe, Pa., 296 A. 2d 519 (1972); Commonwealth v. Lopinson, Pa., 296 A. 2d 524 (1972); Commonwealth v. Ross, Pa., 296 A. 2d 629 (1972).
In Graham v. State, Ark., 486 S.W. 2d 678 (1972), the jury found the defendant guilty of murder in the first degree and did not recommend a life sentence. The pertinent Arkansas statute provided: “The jury shall have the right in all cases where the punishment is now death by law, to render a verdict *466of life imprisonment in the State penitentiary at hard labor.” Ark. Stat. Ann. § 43-2153 (Repl. 1964). Upon defendant’s appeal, the Supreme Court of Arkansas upheld the conviction but remanded the case to the trial court for the pronouncement of a judgment of life imprisonment. The following excerpt from the opinion of Justice Byrd indicates the ground of decision: “[T]he U. S. Supreme Court, as presently constituted, has recently decided that where a jury is permitted to decide between the punishments of life and death, the death penalty constitutes ‘cruel and unusual punishment’ and that such interpretation is applicable to the several states through the Fourteenth Amendment. See Furman v. Georgia. . . .
“So long as the ruling in Furman v. Georgia, supra, is made applicable to this State, we are obliged to reduce appellant’s sentence from death to life imprisonment as being the next highest available penalty, Ark. Stat. Ann. § 43-2308 (Repl. 1964).” 486 S.W. 2d at 679.
In State v. Baker, Wash., 501 P. 2d 284 (1972), the jury found defendant guilty of murder in the first degree and asked that the death penalty be inflicted. The pertinent portion of the Washington statute provided: “Murder in the first degree shall be punishable by imprisonment in the state penitentiary for life, unless the jury shall find that the punishment shall be death-” R.C. Wash. Ann. § 9.48.030 (1961). Notwithstanding the jury’s request, the trial judge deferred imposition of the death penalty on the condition that the defendant be incarcerated for life not subject to parole. The case was before the Supreme Court of Washington on the State’s appeal from that order. In remanding the case for a proper sentence in the light of Furman, the Court said: “The decision in Furman has rendered the issue presented here moot since the state is now precluded from any attempt to have the death penalty imposed under the existing statute. The question whether a trial court may defer the death penalty has become academic.” Id. at 284-85. (Our italics.)
In Huggins v. Commonwealth, Va., 191 S.E. 2d 734 (1972), the jury found the defendant guilty of first degree murder and fixed his punishment at death. The pertinent statute provided: “Murder of the first degree shall be punished with death, or by confinement in the penitentiary for life, or for any term not less than twenty years.” Va. Code 1950 § 18.1-22. Based on Furman, Justice Poff, for the Supreme Court of Virginia, said: *467“Insofar as it authorized discretionary imposition of the death penalty, Virginia’s statute is unconstitutional. With respect to the death sentence, the judgment is vacated.” Id. at 735. The conviction was upheld and the case was remanded for a new trial on the issue of punishment, that is, to determine whether the confinement in the penitentiary was to be for life, or for a term of twenty years, or for a term exceeding twenty years. Accord, Hodges v. Commonwealth, Va., 191 S.E. 2d 794 (1972).
Although the above-cited decisions in which death sentences were reversed and sentences of life imprisonment were substituted therefor involved crimes committed prior to Furman, none suggests that a death sentence may be imposed and carried out unless and until present statutory provisions are amended. All either state or clearly imply that under existing statutes the death sentence may not be imposed and carried out without regard to whether the crime was committed before or subsequent to Furman.
The Florida, Louisiana and Pennsylvania cases discussed below relate to current and future problems of procedure because of unequivocal holdings that under existing statutes a death penalty cannot be imposed and carried out.
In Donaldson v. Sack, 265 So. 2d 499 (Fla. 1972), Donaldson, who had been indicted for murder in the first degree, filed his petition in the Supreme Court of Florida for a writ of prohibition. Fla. Const. Art. V, § 9(2), vested in the criminal courts of record jurisdiction of “all criminal cases not capital.” Fla. Const. Art. V, § 6(3), vested in the circuit courts “all criminal cases not cognizable by subordinate courts.” Donaldson asserted that respondent, Circuit Court Judge Sack, had no jurisdiction to proceed with his case because, as a result of the decision in Furman, “capital cases” no longer existed in Florida.
On 29 June 1972, when Furman was decided, Florida statutes then in force included the following:
“The unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed in the perpetration of or in the attempt to perpetrate any arson, rape, robbery, burglary, abominable and detestable crime against nature or kidnapping, shall be murder in the first degree and shall constitute a capital felony, punishable as provided in § 775.082.” Fla. Stat. Ann. § 782.04(1) (1972 Supp.).
*468“Whoever ravishes and carnally knows a female of the age of ten years or more by force and against her will, or unlawfully or carnally knows and abuses a female child under the age of ten years, shall be guilty of a capital felony, punishable as provided in § 775.082. ...” Fla. Stat. Ann. § 794.01 (1972 Supp.).
“A person who has been convicted of a capital felony shall be punished by death unless the verdict includes a recommendation to mercy by a majority of the jury, in which case the punishment shall be life imprisonment. A defendant found guilty by the court of a capital felony on a plea of guilty or when a jury is waived shall be sentenced to death or life imprisonment, in the discretion of the court.” Fla. Stat. Ann. § 775.082(1) (1972 Supp.).
A Florida statute which became effective 1 October 1972, and is now codified as section 775.082(2) and (3), provided: “(2) In the event the death penalty in a capital felony is held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court, a person who has been convicted of a capital felony shall be punished by life imprisonment.
“(3) In the event the death penalty in a capital felony is held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court, the court having jurisdiction over a person previously sentenced to death for a capital felony shall cause such person to be brought before the court, and the court shall sentence such person to life imprisonment with no eligibility for parole.” (Our italics.)
Exerpts from the opinion of Judge Dekle are quoted below.
“Since Furman v. Georgia ... in effect ‘removes’ (until new legislation which may revive it) ‘capital cases,’ then there appears to be no logical escape from the fact that our circuit courts at this time, and until any legislation which may revive ‘capital cases,’ do not have jurisdiction in those cases heretofore delineated as ‘capital’ and accordingly subsequent to Furman jurisdiction in such cases now pending or being filed vests in the courts of record and may be transferred there in those 17 counties of Florida which have such courts.”
“We are unable in the face of existing authorities and logic to find support for the. continuance of ‘capital offense’ as heretofore applied. Accordingly, it must fall with the U. S. Supreme *469Court’s holding against the death penalty as provided under present legislation. Our decision is compelled by that Court’s action.”
“We find no difficulty with a continuation of the sentencing for these former ‘capital offenses’ under § 775.082(1) as automatically life imprisonment upon conviction, inasmuch as that is the only offense left in the statute. . . . The elimination of the death penalty from the statute does not of course destroy the entire statute. We have steadfastly ruled that the remaining consistent portions of statutes shall be held constitutional if there is any reasonable basis for doing so and of course this clearly exists in these circumstances.”
“The removal of capital punishment only removes ‘capital cases’ as that term has been known. The offense — and the imposition of a life sentence upon conviction — remains. . . . There simply is not at this time such a designation as a ‘capital case’ as set forth in the several provisions of our Constitution, statutes and rules.”
Since there were no “capital cases” under existing Florida statutes, the court then discusses the drastic impact of its decision upon Florida’s Criminal Rules relating to (1) the requirement of twelve jurors in a “capital case,” (2) provisions for a speedy trial, (8) jury selection procedures, (4) bifurcated trial procedures, (5) necessity for indictment by a grand jury, and (6) right to bail.
In Anderson v. State, 267 So. 2d 8 (Fla. 1972), the Supreme Court of Florida, based on Furman, vacated the death sentences of forty defendants. It corrected the sentences of those who had been convicted of murder in the first degree by providing that each be imprisoned for the term of his natural life. In doing so, the Court said: “The elimination of the death penalty from the statute prescribing the penalty for murder in the first degree does not destroy the whole statute. The only sentence which can now be imposed upon conviction of the crime of murder in the first degree is life imprisonment. This is an automatic sentence and a reduction from the sentence previously imposed. The Court has no discretion.” The defendants in the rape cases having been convicted for rapes committed prior to 1 January 1972, were subject to imprisonment for life or for any term of years within the discretion of the Court. Fla. Stat. *470Ann. § 794.01 (1944). Their cases were remanded for re-sentencing.
On authority of Donaldson and Anderson, supra, the Supreme Court of Florida in State v. Whalen, 269 So. 2d 678 (Fla. 1972), held that a trial judge, sitting as sole trier of fact after accepting a plea of guilty to first degree murder and holding an evidentiary hearing on the issue of the extent of penalty, did not have power to impose the death sentence. Chief Justice Roberts said: “This question concerning bifurcated trials is moot since at the present time capital punishment may not be imposed. This Court has held that there are currently no capital offenses in the State of Florida. If there is no capital offense, there can be no capital penalty.” Id. at 679.
In Ex Parte Contella, 485 S.W. 2d 910 (Tex. Crim. 1972), the appeals were from orders in habeas corpus proceedings in which the accused were denied bail after indictment for murder with malice. The Texas Constitution contained this provision: “All prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident. ...” A Texas statute provided: “All prisoners shall be bailable unless for capital offenses when the proof is evident.” A capital felony was defined by statute as “[a]n offense for which the highest penalty is death.” The cited Texas decisions had held that “[t]he term ‘proof is evident’ means the accused, with cool and deliberate mind and formed design, maliciously killed the deceased, and that upon a hearing of the facts before the court a dispassionate jury would, upon such evidence, not only convict but would assess the death penalty.” Vernon’s Ann. P.C. art. 1257 provides: “The punishment for murder shall be death or confinement in the penitentiary for life or for any term of years not less than two.” Vernon’s Ann. C. Crim. Proc. art. 37.07 (1972 Supp.) provides that, in capital cases, where the state has made it known in writing prior to trial that it will seek the death penalty, the punishment must be assessed by the jury.
The following excerpts from the opinion of Judge Roberts set forth the disposition of the appeals and the rationale of the decision.
“In the case of Furman v. Georgia . . . the United States Supreme Court held that the death penalty, at least insofar as it is currently imposed in this country, ‘constitutes cruel and *471unusual punishment in violation of the Eighth and Fourteenth Amendments.’ That being the case, we conclude that the death penalty, as it is currently authorized, may not be imposed as a penalty for the crime of murder.
“In light of this holding, the question which is before the Court is whether, in terms of our Constitution and statute, bail may now be denied in cases in which, prior to the holding in Furman v. Georgia, supra, the death penalty could have been imposed. We conclude that bail may not be denied in such cases.
* ❖ *
“We therefore conclude that bail may no longer be denied on the ground that the offense is a capital offense and the proof is evident. Since the death penalty may not be imposed, there no longer exists a ‘capital felony’ as defined in Art. 47, V.A.P.C. Likewise, since the death penalty is no longer a possible penalty, it is impossible for the State to offer evidence, in this or any other case, sufficient to establish that the ‘proof is evident’ as that term is defined in Ex parte Paul, supra. Therefore, there is no case in which bail may be denied under the provisions of Art. 1, Section 11 of the Texas Constitution or Art. 1.07, V.A.C.C.P.
“The orders denying bail are reversed and the trial judge is ordered to set bail herein.” 485 S.W. 2d at 911-912.
In Commonwealth v. Truesdale, Pa., 296 A. 2d 829 (Nov. 1972), the defendant was awaiting trial on indictments of first degree murder and conspiracy. Under the Pennsylvania Constitution a “capital” offense is not bailable and defendant had been denied bail. After the decision in Fu/rman, defendant made an application for his release on bail on the ground that Furman abolished the death penalty as it theretofore had existed in Pennsylvania. After a hearing, the trial court granted bail. The Commonwealth immediately filed a petition in the Supreme Court requesting the assumption of plenary jurisdiction to determine whether defendant had a right to bail pending trial. The Court observed that “[w]ith the decision of the United States Supreme Court in Furman v. Georgia . . . as well as this Court’s decision in Commonwealth v. Bradley, Pa., 295 A. 2d 842 (1972), which cases have invalidated the death penalty as it presently exists in Pennsylvania, we are left to decide if the definition of ‘capital offense’ which we adopted in Alberti *472requires that the the bail set for Truesdale was proper.” 296 A. 2d at 832 (Our italics.) Holding’ that bail was properly granted, the Court stated that “since there are presently no criminal offenses in the Commonwealth for which the death penalty may be imposed, there are no ‘capital offenses’; hence, by mandate of our Constitution, all offenses are bailable prior to trial.” Id. The Court clearly recognizes and accepts the fact that the effect of the Furman decision was to make “the maximum penalty for murder in the first degree . . . life imprisonment.” 296 A. 2d at 835.
In State v. Holmes, La., 269 So. 2d 207 (1972), and in State v. Flood, 269 So. 2d 212 (La. Nov. 1972), the Supreme Court of Louisiana held that Furman did not destroy the classification of certain crimes in Louisiana as capital offenses. The impact of Furman was described in these words: “The crime [of murder] remains unchanged; only the penalty has been changed. True, the penalty is what made murder a capital offense, and is not actually a capital offense in Louisiana today. But the nature of the offense has not changed — only the punishment.” State v. Flood, supra at 214. Hence, Holmes held that a person charged with a crime formerly punishable by death had to be tried by a jury of twelve, all of whom must concur to render a verdict; and Flood held that a person so charged was not entitled as of right to be released on bail.
The majority opinion cites State v. Dickerson, Del. Supr., 298 A. 2d 761 (Nov. 1972). This is the only decision disclosed by our research which supports to any extent the view of the majority herein. Dickerson was charged with a first degree murder committed prior to the decision in Furman. Two questions of law were certified by the Superior Court to the Supreme Court, to wit: “1. Are the discretionary mercy provisions of 11 Del.C. § 3901 unconstitutional under Furman v. Georgia? 2. If the answer to Question 1 is yes, is the mandatory death penalty prescribed in 11 Del.C. § 571 constitutional?” Both questions were answered “Yes.”
11 Del.C. § 571 provided that whoever committed the crime of first degree murder as defined therein “shall suffer death.” 11 Del.C. § 3901 provided: “In all cases where the penalty for crimes prescribed by the laws of this state is death, if the jury, at the time of rendering their verdict, recommends the defendant to the mercy of the Court, the Court may, if it seems proper *473to do so, impose the sentence of life imprisonment instead of death.”
The questions certified seem to have been adroitly phrased to elicit the answers which were given. The true question was whether Furman had invalidated the death penalty provision of the Delaware statute. All justices (3) of the Supreme Court of Delaware concurred in answering the certified questions as stated above. The majority (2) held that the death penalty could not be applied retroactively to the defendant in the case under consideration. This is an excerpt from the majority opinion: “Having determined that the mandatory death penalty provision of the Murder Statute, standing alone, may not be applied retroactively, we are left with the problem of pointing to the statutory, common law, or inherent power of the Superior Court under which the sentence may be imposed upon a conviction of murder in the first degree for which the mandatory death penalty of the Murder Statute may not be imposed. That question was not certified and was not briefed or argued by counsel.” Chief Justice Wolcott dissented from “the majority’s conclusion that 11 Del.C. § 571 may not be applied retroactively by the courts of this State.” His dissent is based on this premise: “The Supreme Court of the United States— not this Court — has held that the Mercy Statute is unconstitutional. We, of course, are bound by this decision, but we have not made it.” Suffice to say, in my view Furman held only that the death penalty provision of the Delaware statute was invalid. Therefore, as I see it, the holdings of the Supreme Court of Delaware in Dickerson were not required or supported by Furman.
I agree that the Furman decision has not established the proposition that capital punishment under all circumstances constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States. Moreover, nothing in the Furman decision would seem to invalidate a statute of our General Assembly prescribing death as the sole and exclusive punishment for murder in the first degree, rape, burglary in the first degree, or arson. Whether such a statute should be enacted is for legislative determination. The majority opinion states: “We recognize that the Legislature, not the Courts, decides public policy, responds to public opinion and, by legislative enactment, reflects society’s standards. The matter of retention, modification or abolition of *474the death penalty is a question for the law-making authorities rather than the courts.” With this statement I emphatically agree. However, in their directive that death shall be the sole and exclusive punishment for all crimes of first degree murder, rape, first degree burglary, and arson, committed after the filing of this decision, the majority, in my view, have assumed to act in a legislative rather than in a judicial capacity. Thereby they demonstrate the difference between precept and practice. Of course, the practical effect of today’s decision is to place upon those members of the General Assembly who favor the abolition or limitation of capital punishment the burden of initiating and passing legislation to that effect.
It is my view that, unless and until G.S. 14-17, G.S. 14-21, G.S. 14-52, and G.S. 14-58 are amended by our General Assembly, Furman requires that trials be conducted solely to determine the guilt of the defendant; and, if found guilty of murder in the first degree, rape, burglary in the first degree, or arson, that the defendant be sentenced to life imprisonment as the only permissible punishment.