dissenting as to the death penalty:
The rape for which defendant was convicted occurred on 16 May 1973, a date during the period between 18 January 1973, the day of the decision in State v. Waddell, 282 N.C. 431, 194 S.E. 2d 19, and 8 April 1974, the day on which the General Assembly rewrote G.S. 14-21 by the enactment of Chapter 1201 of the Session Laws of 1973. For the reasons stated by Chief Justice Bobbitt in his dissenting opinion in State v. Jarrette, 284 N.C. 625, 666, 202 S.E. 2d 721, 747—an opinion in which Justice Higgins and I joined—, I dissent as to the death sentence imposed upon defendant by the court below and vote to remand for the imposition of a sentence of life imprisonment. See also the dissenting opinion of Chief Justice Bobbitt, and my concurrence therein, in State v. Waddell, supra at 453 and 476, 194 S.E. 2d at 30 and 47.
I also dissent as to the death penalty in this case for the additional reasons stated below.
Prior to 8 April 1974 the crime of rape was defined and punished by G.S. 14-21 as follows: “§ 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.”
Section 2 of Chapter 1201, Session Laws of 1973 (quoted below), rewrote G.S. 14-21 to divide rape into two degrees with different punishments.
“§ 14-21. Rape; punishment in the first and second degree. —Every person who ravishes and carnally knows any female *435of the age of 12 years or more by force and against her will, or who unlawfully and carnally knows and abuses any female child under the age of 12 years, shall be guilty of rape, and upon conviction, shall be punished as follows:
(a) First-Degree Rape:—
(1) If the person guilty of rape is more than 16 years of age, and the rape victim is a virtuous female child under the age of 12 years, the punishment shall be death; or
(2) If the person guilty of rape is more than 16 years of age, and the rape victim had her resistance overcome or her submission procured by the use of a deadly weapon, or by the infliction of serious bodily injury to her, the punishment shall be death.
(b) Second-Degree Rape — Any other offense of rape defined in this section shall be a lesser-included offense of rape in the first degree and shall be punished by imprisonment in the State’s prison for life, or for a term of years, in the discretion of the court.”
Under Chapter 1201, only two crimes are now punishable by death, namely, first degree murder and first degree rape. The death penalty previously provided for arson and first degree burglary was changed to life imprisonment.
In recognition of the fact that the question whether the death penalty can constitutionally be imposed for any crime was then (as now) awaiting a definitive ruling by the United States Supreme Court, the General Assembly provided in Section 7 of Chapter 1201:
“In the event it is determined by the North Carolina Supreme Court or the United States Supreme Court that a sentence of death may not be constitutionally imposed for any capital offense for which the death penalty is provided by this Act, the punishment for the offense shall be life imprisonment.”
Section 8 of Chapter 1201 provides:
“This act shall become effective upon ratification and applicable to all offenses hereafter committed.”
The rape for which this defendant was convicted falls within the definition of second degree rape as defined in Chapter 1201. The resistence of the alleged victim was not overcome, *436or her submission procured, by the use of a deadly weapon or by the infliction of serious bodily injury to her. By serious injury the General Assembly obviously meant injury in addition to the fact of rape, which in itself is serious injury indeed.
Defendant argues that since he could not have been sentenced to death under the present law for the crime for which he was convicted, the court erred in imposing the death sentence. The majority rejects this contention on the ground that Section 8 required the sentence imposed. With that view I cannot agree.
Admittedly, the application to this case of rules of construction which have been employed in certain noncapital cases (State v. Harvey, 281 N.C. 1, 187 S.E. 2d 706 (1972) ; State v. Cameron, 284 N.C. 165, 200 S.E. 2d 186 (1973)) would support the majority’s conclusion that Section 8 discloses the legislative intent to execute a defendant for a second degree rape committed one day and to imprison another for the same crime committed the following day. I am, however, unwilling to attribute such an intent to the General Assembly. The circumstances surrounding the enactment of Chapter 1201 are not consistent with such an intent.
The sole purpose of rules of construction is to aid the courts in ascertaining the legislative intent. Therefore, no rule, however appropriate in noncapital cases, should bind the Court when dealing with issues of life and death under circumtances such as those of this case.
Prior to the rewriting of G.S. 14-21 in 1974 this Court, in four-to-three decisions, had upheld death sentences for rape in State v. Jarrette, 284 N.C. 625, 202 S.E. 2d 721 (1974), and in State v. Noell, 284 N.C. 670, 202 S.E. 2d 750 (1974), and in State v. Henderson, 285 N.C. 1, 203 S.E. 2d 10 (1974). When these cases were decided, the distinction between first degree rape and second degree rape as now defined in Chapter 1201 was unknown to our law.
At the time the General Assembly enacted Chapter 1201 on 8 April 1974 it knew the petitions for certiorari by each of the defendants in the four-to-three decisions cited above were pending in the Supreme Court of the United States for the further review of his case, and that execution of the death sentences had been stayed pending action by that Court. Until the. United States Supreme Court ruled it could not be. finally determined *437whether this Court’s decision in Waddell had reinstated death as the punishment for the State’s four capital crimes or whether the decision in Furman v. Georgia, 408 U.S. 238 (1972) had invalidated entirely the death penalty provisions of the statutes which fixed the punishment for those crimes.
Under these circumstances of uncertainty, by the enactment of Chapter 1201, the General Assembly most certainly did three things: (1) It abolished capital punishment for arson, burglary in the first degree, and rape in the second degree in the event it should be finally determined that Waddell reinstated the death penalty in this State. (2) It established capital punishment for murder in the first degree and rape in the first degree in the event the State’s death penalty statutes had been abrogated by the decision in Furman v. Georgia, supra. (3) It substituted life imprisonment for the death sentence if the Supreme Court of the United States should decide that the latter was constitutionally impermissible.
It seems inconceivable that, under these circumstances, the General Assembly could have intended that any person would thereafter be executed for a crime for which Chapter 1201 abolished the death penalty.
It is doubtful that the General Assembly was aware of any pending ease involving second degree rape as defined in Chapter 1201. On the other hand, it was aware of the fact that it could not change any final decision of this Court in which the death penalty for rape had been upheld. It may be that the purpose of Section 8 was to dispel the unwarranted notion that the General Assembly contemplated judicial reconsideration of prior decisions of this Court in which the death penalty for rape had been upheld. This case, however, has not proceeded to final judgment; it is still within the jurisdiction and responsibility of the Court.
In my view to execute a death sentence for a crime which is not now punishable by death would be unconscionable and constitute cruel and unusual punishment in violation of Article I, Section 27, of the Constitution of North Carolina, and of the Eighth Amendment to the Constitution of the United States.
Justice Copeland dissenting as to death penalty.With extreme reluctance, I find it necessary to dissent from the affirmance of that portion of the judgment sentencing de*438fendant to death. With all due respect to the present members of this Court who constituted the majority in State v. Waddell, 282 N.C. 431, 194 S.E. 2d 19 (1973), and State v. Jarrette, 284 N.C. 625, 202 S.E. 2d 721 (1974), I am not of the opinion that the impact of Furman v. Georgia, 408 U.S. 238 (1972) on G.S. 14-17 (first degree murder), 14-21 (rape), 14-52 (first degree burglary), and 14-58 (arson), as they were written prior to 8 April 1974, the effective date of Chapter 1201, 1973 Session Laws, was to require the mandatory imposition of death sentences.
Article I, Section 6, of the North Carolina Constitution declares that “[T]he legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other." (Emphasis supplied.) Under Article XI, Sections 1 and 2, of the North Carolina Constitution, the General Assembly is authorized to provide that the crimes of murder, rape, burglary, and arson, and only these crimes, may be punishable by death. Accordingly, I do not believe that the death penalty may be imposed under our State Constitution unless and until our General Assembly so declares it by legislative act. In my opinion, Furman v. Georgia did hot repeal the discretionary provisions of G.S. 14-17, 14-21, 14-52, and 14-58. What it did was to declare unconstitutional the imposition of the death penalty under those statutes as then written. It did not rewrite those statutes. Therefore, the North Carolina General Assembly, not this Court, was the only constitutional branch of our tripartite system of State Government vested with the authority to redraft those statutes in a manner that would make the imposition of death constitutionally permissible. -
• In summary, my views on this matter are in complete accord with those expressed by Justice Sharp (now Chief Justice) in her dissenting opinion to State v. Waddell:
“In my view, there are no constitutional infirmities 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, Í would have voted with the majority. This, however, I am not at liberty to do.” 282 N.C. 431, 476, 194 S.E. 2d 19, 47-48.
*439In this regard, I note that the adjourned session of the 1973 North Carolina General Assembly, presumably in response to State v. Waddell, elected to amend all of our capital statutes. Chapter 1201, 1973 Session Laws. This Act, effective 8 April 1974, provides for capital punishment in cases of first degree murder and first degree rape. See G.S. 14-17 and 14-21 (a) (1) and (2). This Act further provides that any person convicted of second degree rape “shall be punished by imprisonment in the State’s prison for life, or for a term of years in the discretion of the court.” G.S. 14-21 (b). It further provides that any person convicted of burglary in the first degree or of arson “shall be imprisoned for life in the State’s prison.” G.S. 14-52, 14-58. Section 8 of the Act provides: “This act shall become effective upon ratification and applicable to all offenses hereafter committed.” (Emphasis added.) I agree with Justice Lake in the majority opinion that the language used in the saving clause is written in clear and explicit terms and that it could not apply to crimes committed prior to 8 April 1974.
It is my firm conviction that the punishments provided for in Chapter 1201, 1973 Session Laws, are constitutionally permissible under both our Federal and State Constitutions. For this reason, I am prepared to apply these laws as written to all the offenses enumerated therein and committed on or after 8 April 1974, the date of ratification.
For the reasons above noted, I dissent as to punishment and vote to remand for the imposition of a sentence of life imprisonment.