dissenting as to the sentence of death:
While I concur with the majority opinion insofar as it affirms the conviction of the defendant for the crime of rape, I dissent from that portion of the opinion which affirms the judgment imposing a sentence of death. The majority holds that the death sentence can be imposed in this case by virtue of the majority holding in State v. Waddell, 282 N.C. 431, 194 S.E. 2d 19 (1973), and Section 8 of Chapter 1201 of the 1973 Session Laws. I disagree with the interpretation given to Furman v. Georgia, 408 U.S. 238, 33 L.Ed. 2d 346, 92 S.Ct. 2726 (1972) by the majority in Waddell and with the effect given to Section 8.
The majority in Waddell correctly interpreted the opinions of five of the United States Supreme Court Justices in Furman *440to mean that the imposition of the death penalty in North Carolina under our state’s then existing capital punishment statutes was unconstitutional. Waddell held that all otherwise capital offenses committed in this state before the date of its decision (18 January 1973) were punishable only by life imprisonment. The Superior Court of Sampson County was ordered to sentence the defendant Waddell to life imprisonment.
The question which this Court in Waddell then addressed was whether and under what circumstances the death penalty might thereafter be imposed in this state. The majority felt that this Court could make that determination. It held that capital crimes which before Furman were punishable by death or life imprisonment were, if committed before Waddell, punishable only by life imprisonment, and, if committed after Waddell, punishable only by death.
After Furman it was, in my opinion, initially for the General Assembly of North Carolina and not this Court to determine as a matter of policy whether and under what circumstances the death sentence should be reinstated in this state. N. C. Const. Art. XI, §§ 1, 2. Before Waddell and Fwrman one convicted of a capital crime was sentenced to death unless the jury recommended a sentence of life imprisonment. Thus our legislature, recognizing there would be cases when a person guilty of one of these crimes ought not to suffer death, permitted the jury mercifully to intervene. It has not been the policy of this state since 1949 automatically to execute everyone convicted of a capital crime. See 1949 Sess. Laws, Chap. 299, §§ 1-3. The majority of this Court in Waddell through its interpretation of Furman created such a policy. Only the legislature, in my view, had the prerogative initially to do that.
I agree with the proposition in Justice Lake’s concurring opinion in Waddell, 282 N.C. at 449, that in the aftermath of Furman it was the duty of this Court to determine its effect upon this state’s capital punishment laws. I would have concluded, however, that the effect of Furman was simply to prohibit the imposition of the death penalty in North Carolina and that only life imprisonment, the other available statutory penalty, could be imposed upon persons convicted of otherwise capital crimes.
The five majority opinions in Furman seem to be an effort to restrict, not expand, the circumstances under which the death penalty can be imposed. Indeed Justices Brennan and Marshall *441believe that under no circumstances could its infliction comport with the Eighth Amendment to the United States Constitution. Justice Brennan also wrote:
“ [A] lthough ‘the death penalty has been employed throughout our history,’ Trop v. Dulles, 356 U.S., at 99, 2 L.Ed. 2d at 641, in fact the history of this punishment is one of successive restriction. What was once a common punishment has become, in the context of a continuing moral debate, increasingly rare.” Furman v. Georgia, supra, 408 U.S. at 299, 33 L.Ed. 2d at 383.
Justice White pointed out:
“The short of it is that the policy of vesting sentencing authority primarily in juries — a decision largely motivated by the desire to mitigate the harshness of the law and to bring community judgment to bear on the sentence as well as guilt or innocence — has so effectively achieved its aims that capital punishment within the confines of the statutes now before us has for all practical purposes run its course.” 408 U.S. at 313, 33 L.Ed. 2d at 392.
To interpret Furman in a way that would, in effect, reverse this trend is contrary to the thrust of the views of a majority of the United States Supreme Court.
Neither do I find the same comfort in Section 8 of Chapter 1201 of the 1973 Session Laws as does the majority. To put this defendant to death for a crime which if committed today could be punished only by imprisonment for life or for a term of years, in the discretion of the trial judge, G.S. 14-21 (b), is arbitrary, unconscionable, cruel, and unusual. If the legislature intended by enactment of Section 8 to permit such a result, then this section plainly violates the constitutional prohibitions against cruel and unusual punishment. U. S. Const. Amend. VIII; N. C. Const. Art. I, § 27. These constitutional prohibitions require, in my opinion, that a legislature body which determines to abolish the death penalty for any given crime do so both prospectively and retroactively so that all persons who stand convicted and sentenced for that crime but who have not yet been executed will receive the benefit of the abolition.
I vote to affirm the conviction and to remand this case to the Superior Court of Wake County for the purpose of vacating the sentence of death heretofore imposed and imposing instead a sentence of life imprisonment upon this defendant.