concurring in the opinion of Chief Justice Bobbitt:
I concur fully with the views expressed by the Chief Justice in his well-documented opinion and in his conclusion that the effect of Furman is to invalidate the death penalty under the laws of this State as presently written and to make life imprisonment the punishment for first degree murder, rape, arson, and first degree burglary. In signifying my concurrence I add these comments:
In my view, there are no constitutional infirmaties in capital punishment per se and, under the conditions prevailing today, I do not consider the death penalty cruel and unusual punishment for the crimes for which the State Constitution authorizes the General Assembly to prescribe it. Thus, were I to permit my personal views on capital punishment as a State policy to dictate my decision in this case, I would have voted with the majority. This, however, I am not at liberty to do.
The majority decision is based upon the supposition that in 1949, when the legislature rewrote and re-enacted G.S. 14-21, it would have left the statute unchanged had it known the United States Supreme Court would invalidate the death penalty as authorized in the rewritten section. With all deference, I do not attribute to the majority such occult powers. They cite the failure of seventeen bills or resolutions introduced in the General Assembly to abolish or limit capital punishment. However, they fail to mention the similar fate of the two Judicial Council bills which, in 1969 and 1970, sought to repeal the power of commutation which the legislature had given the jury trying a capital case and to make the death sentence mandatory for the four crimes. In short, the legislature rejected the proposal that capital punishment be retained without the discretionary power in the trial jury to determine whether the convict’s sentence should be death or life imprisonment.
The question of capital punishment is one of high public policy, and the constitutional mandate is that it shall be determined by the legislature — not by the judiciary. N. C. Const, art. I, § 6 declares: “The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.” The history of the Supreme Court of North Carolina has been one of judicial restraint and strict adherence to the doctrine of the separation of powers. Our opinions abound with declarations that public policy is the exclusive *477province of the legislature and its determination is not subject to judicial review; and that the wisdom or impolicy of the law is solely for the legislature and we have neither the power nor the desire to usurp its prerogative. See 2 North Carolina Digest Const. Law §§ 6, 10 (1967) and cases cited therein.
This Court, which has consistently deplored the encroachment of other courts upon the legislative prerogatives during the past decade, now follows suit and sets its own example of judicial overreaching by changing the penalty for rape, first degree murder, arson and first degree burglary “from death or life imprisonment in the discretion of the jury to mandatory death.” The majority concede that this is “an upward change of penalty” which cannot be applied retroactively. Thus, while giving lip service to the doctrine of separation of powers, this Court does today what the legislatures of 1969 and 1971 declined to do. Had this action been taken by the General Assembly, I would have neither legal nor personal objections. However, when the Court takes such action, in my view, it violates fundamental constitutional principles. I therefore dissent from the conclusion reached by the majority in the advisory opinion.