dissenting as to death sentences.
State v. Waddell, 282 N.C. 431, 194 S.E. 2d 19, was decided 18 January 1973. All members of this Court agreed, as stated in the majority opinion, that “the Furman decision [Furman v. Georgia, 408 U.S. 238, 33 L.Ed. 2d 346, 92 S.Ct. 2726, decided 29 June 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.” 282 N.C. at 439, 194 S.E. 2d at 25. Wad-dell’s death sentence was vacated and his case remanded to the superior court for a judgment of life imprisonment.
All of us agreed that Furman required this disposition of Waddell’s case. However, the majority opinion stated that for crimes of first degree murder, rape, first degree burglary, and arson, committed after 18 January 1973, the date of the Waddell décision, punishment by death would be mandatory. In accord with that statement, the majority sustain the death sentences herein. Three of us dissented in Waddell and now dissent from that view of the law. We were and are of the opinion that the impact of Furman upon our statutes is to prohibit — not to require or permit — the imposition of death sentences until such time as our statutes are amended by the General Assembly.
The statutes enacted by our General Assembly 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. These statutes were rewritten as now codified by Chapter 299, *667Session Laws of 1949. The 1949 Act provided: “This, Act shall be in full force and effect from and after its ratification, not excepting trials for offenses committed prior to its ratification.” (Italics added.) The application of the 1949 Act to offenses committed prior to its ratification is further indication of the General Assembly’s intent that punishment by death was not to be imposed unless the jury was given the discretion to recommend that punishment be life imprisonment and failed to make such recommendation. No changes have been made by the General Assembly 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 1949 Act.
The majority (4) were of the opinion that the impact of Furman was to invalidate the proviso in each of these statutes; and that, upon invalidation of the proviso, the remaining portion provided unconditionally for punishment by death. The minority (3) were of the opinion that the impact of Furman was to invalidate the death penalty provision of these statutes; and that; unless and until the statutes were amended by the General Assembly, the punishment for each of these crimes is life imprisonment.
,. In Waddell, I expressed by dissenting views in these words: “I do not think any death sentence may be constitutionally inflicted unless our 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.” State v. Waddell, supra, at 453-54, 194 S.E. 2d at 31.
In Waddell, I reviewed court decisions of Ohio, Mississippi, Louisiana, Oklahoma, Illinois, Pennsylvania, Arkansas, Washington, Virginia, Florida and Texas, relating to the impact of Furman upon statutes of those states containing essentially the same provisions as our G.S. 14-17, G.S. 14-21, G.S. 14-52 and G.S. 14-58. Each interpreted Fwrman as holding that no death sentence could be imposed as long as the statute (s) of that state contained provisions which left to the unbridled discretion of a judge or jury whether the punishment would be death or life imprisonment. Later, decisions to the same effect were handed down in Alabama [274 So. 2d 298 (1973)]; Arizona *668[506 P. 2d 248 (1978)] ; Kansas [513 P. 2d 248 (1973)] ; Maryland [297 A. 2d 696 (1972)] ; Massachusetts [300 N.E. 2d 439 (1973)] ; New York [300 N.E. 2d 139 (1973)] ; South Carolina [192 S.E. 2d 72Ó (1972)] ; Tennessee [496 S.W. 2d 900 (1972)].
■ The majority opinions in Waddell and in the present case cite State v. Dickerson, Del. Supr., 298 A. 2d 761, the only decision which supports to any extent the views of the majority. I now add to the dicussion of Dickerson in my dissenting opin-ipn in Waddell the following: Further research discloses a comprehensive revision of Title 11, Parts 1 and 2, of the Delaware Code, was approved by the General Assembly of Delaware on 6 July 1972 and became effective 1 April 1973. 58 Delaware Laws, Chapter 497. The portion of this revision codified as Section 4209 sets forth in detail a new procedure for determining whether the punishment is ■ to be death or life imprisonment upon a plea or conviction of guilty of murder in the first degree committed on or after 1 April 1973. Dickerson was decided 1 November 1972. The statutes to: which it relates became obsolete on 1 April 1973. Dickerson held that first degree murders committed in Delaware during the five (5) months between 1 November 1972 and 1 April 1973 were punishable by death. My research indicates there has been no decision of the Supreme Court of Delaware since' Furman which sustains a death sentence. Apparently, the four-to-three decisión in this case is the only decision since Furman which sustains a death sentence under statutory provisions similar to ours.
The majority opinion in the present case states: “All of the members of this Court agreed that, notwithstanding Fur-man, these statutes remain in the law of North Carolina, in part, and only in part. The difference of opinion among the members of this Court was as to which part of each such statute remained the law of this State, the original provision making death the mandatory punishment, or the proviso, added by the 1949 amendment, which attempted to confer upon the jury the discretion forbidden by Furman.” These sentences do not accurately state the views of the minority. In our view, the provisions of these statutes embody an indivisible and unified plan for punishment of the felonies referred to therein. Fur-man did not purport to delete, isolate or invalidate ány particular portion of the statute. Fwrmam, simply held that the death penalty provision under the statutes as now constituted *669is invalid and that, absent amendment, no death sentence can be constitutionally imposed and carried out.
. .. On authority of Furman, the Supreme Court of the United States vacated the death sentences which this Court had sustained in the Miller, Hamby and Chandler, Chance, Westbrook and Doss cases; and, pursuant to the mandate of the Supreme Court of the United States, this Court remanded these cases for judgments imposing sentences of life imprisonment. For citations, see State v. Waddell, supra, at 453, 194 S.E. 2d at 30-31. Fwrman did not reinstate death as the only permissible punishment ior murder in the first degree, rape, burglary in the first degree, and arson.
The majority opinion responds to the portions of the briefs of defendant and of the- amicus curiae which urge this Court to do what the Supreme Court of the United States refused to do in Furmau, that is, to hold that punishment by death constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States. Being of the opinion that, for the reasons stated herein, the death sentences must be vacated and the cases remanded for judgments of life imprisonment, I refrain from discussing these matters otherwise than by repeating this statement from my- dissenting opinion in Waddell, viz: “I agree that the Fur-mam, 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.” 282 N.C. at 473, 194 S.E. 2d at 43.
Since the provisions of G.S. 14-17 (murder in the first degree)' and G.S. 14-21 (rape) are now the same as when Fur-man was decided, I think the only permissible course is to vacate each of the death sentences and to remand the cases for the pronouncement of judgments of life imprisonment.