
194 S.E.2d 800 (1973)
283 N.C. 17
STATE of North Carolina
v.
Jerry Douglas WATKINS.
No. 3.
Supreme Court of North Carolina.
March 14, 1973.
*806 Atty. Gen. Robert Morgan and Asst. Atty. Gen. Roy A. Giles, for the State.
Jerry Douglas Watkins, pro se.
*807 SHARP, Justice:
Defendant's case on appeal and brief are signed "Jerry Douglas Watkins, Defendant in propria persona." His appeal, taken after a plea of guilty, presents for review only the question whether error appears on the face of the record. State v. Caldwell, 269 N.C. 521, 153 S.E.2d 34 (1967); State v. Newell, 268 N.C. 300, 150 S.E.2d 405 (1966).
Defendant's assignments which require discussion are that the trial court erred in accepting his plea of guilty to murder in the first degree, in accepting the verdict of the jury, and in imposing a life sentence upon him. He asserts (1) that under the law of this State a jury must determine whether murder is in the first or second degree, and a defendant will not be permitted to plead guilty to murder in the first degree; (2) that Judge Braswell's acceptance of his plea was a nullity "totally without precedent" and a violation of defendant's rights under N.C.Const. art. I, § 19 and the Fourteenth Amendment to the United States Constitution; and (3) that neither defendant's plea nor the jury's verdict will support a sentence.
At the outset, we note that defendant's plea was entered on 13 June 1972, sixteen days before the U. S. Supreme Court, on 29 June 1972, decided Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. Furman invalidated any death sentence imposed under a statute which leaves to the discretion of either judge or jury whether a sentence shall be death or life imprisonment. Thus a death sentence imposed under G.S. § 14-17 as then constituted cannot be carried out. See State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973). Prior to Furman, the status of the death penalty under G.S. § 14-17 was uncertain. However, defendant knew that G.S. § 14-17 made either death or life imprisonment the penalty for first-degree murder, and he believed that if his plea was accepted his punishment would be one or the other.
The Attorney General concedes that on 13 June 1972 no statute or case law in this State specifically authorized the court to accept a plea of guilty to first-degree murder. He submits, however, that defendant has suffered no prejudice because (1) the State's evidence points unerringly to defendant's guilt of first-degree murder; (2) defendant does not challenge the fact that his plea was freely, understandingly, and voluntarily made; and (3) the jury's verdict imposed the minimum punishment of life imprisonment.
Undoubtedly, at common law, a defendant of competent understanding, duly enlightened, had the right to plead guilty to a capital crime instead of denying the charge. See Green v. Commonwealth, 94 Mass. (12 Allen) 155 (1866); 31 N.C.L. Rev. 405 (1953). According to Blackstone, upon "the prisoner's confession of the indictment. . . the court hath nothing to do but award judgment: but it is usually very backward in receiving and recording such confession, out of tenderness to life of the subject; and will generally advise the prisoner to retract it, and plead to the indictment." 4 Blackstone, Commentaries *324. In noting the reluctance of courts to accept a plea of guilty of a crime for which the penalty is death, Bishop said, "Thus, where one tendered [this plea] in a capital case, the judges would not accept it till they had explained to him its serious nature, sent him back to his cell for reflection, brought him again into court, had the indictment read to him a second time, and examined witnesses as to his sanity, and whether or not promises of clemency had been made to him . . ., [a]nd in some of the states there are varying statutory and other devices to protect defendants from improvident pleas of guilty." 2 Bishop, New Criminal Procedure § 795 (2d ed. 1913). See also 1 Greenleaf, Law of Evidence § 216 (16th ed. 1899).
In this country today it is generally held that every accused has the right to plead guilty and one may do so even in a *808 capital case unless prohibited by statute. Annot., 6 A.L.R. 694 (1920); 21 Am.Jur.2d Criminal Law § 484 (1965); 22 C.J.S. Criminal Law § 422(1), (4) (1961). See also Fed.R.Crim.P. 11, 18 U.S.C.A. Donnelly v. United States, 185 F.2d 559 (10th Cir. 1950); Territory v. Miller, 4 Dak. 173, 29 N.W. 7 (1886). However, "one accused of a capital offense has no constitutional right to plead guilty." 22 C.J.S. Criminal Law § 422(1) (1961). Accord, 21 Am.Jur.2d Criminal Law § 484 (1965). See also People v. Ballentine, 39 Cal.2d 193, 246 P.2d 35 (1952); Annot., 6 A.L.R. 694, 695 (1920); Hallinger v. Davis, 146 U.S. 314, 13 S.Ct. 105, 36 L.Ed. 986 (1892); 31 N.C.L.Rev. 405-06 (1953).
It is settled law in this State that a plea of guilty, freely, understandingly, and voluntarily entered, is equivalent to a conviction of the offense charged. State v. Shelly, 280 N.C. 300, 185 S.E.2d 702 (1972); State v. Wynn, 278 N.C. 513, 180 S.E.2d 135 (1970); State v. Miller, 271 N.C. 611, 157 S.E.2d 211 (1967); State v. Perry, 265 N.C. 517, 144 S.E.2d 591 (1965).
In State v. Branner, 149 N.C. 559, 63 S. E. 169 (1908), a case involving a prosecution for disturbing religious worship, in discussing the nature and effect of a plea of guilty, Justice Walker said: When a defendant "directly, and in the face of the court, admits the truth of the accusation" in the indictment, "[t]his is called a `plea of guilty' and is equivalent to a conviction. The court then has nothing to do but to award judgment as upon a verdict of guilty, but, of course, may hear evidence for the purpose of enabling it to determine the measure of punishment . . . ." Id. at 561, 63 S.E. at 170 (citations omitted). However, Justice Walker also said that "a judge cannot compel a defendant against his will to plead not guilty and submit to a trial, for undoubtedly a prisoner of competent understanding, duly enlightened, has the right to plead guilty instead of denying the charge. Yet in proportion to the gravity of the offense, the court should exercise caution in receiving his plea and should see that he is properly advised as to the nature of his act, and its consequences. This is a matter which is left largely to the good judgment and discretion of the court, which should be exercised so as to protect a defendant from an improvident plea and to prevent injustice." Id. at 563, 63 S.E. at 171.
Although North Carolina has had no statute specifically prohibiting a court from accepting a plea of guilty in a capital case, to our knowledge no judge had ever accepted a plea of guilty of crime for which the punishment could be (or was thought to be) death prior to Judge Braswell's acceptance of defendant's plea in this case. It has been the universal practice of the trial judges to require the entry of a plea of not guilty, and to have a jury determine the guilt or innocence of the accused. Indeed, it has been generally understood by both bench and bar that the law required this procedure. However, the authority cited for it in our decisions hardly seems to sustain the proposition.
When Sections One and Two of Chapter 85, N.C.Sess.Laws (1893) (now G.S. § 14-17) divided murder into two degrees, Section Three (now G.S. § 15-172 (1965)) provided that the division required no alteration in the existing statutory form of indictment for murder, "but the jury before whom the offender is tried shall determine in their verdict whether the crime is murder in the first or second degree."
In State v. Blue, 219 N.C. 612, 14 S.E.2d 635 (1941), the defendant who was convicted of murder upon his plea of not guilty, was awarded a new trial for errors in the charge. Justice (later Chief Justice) Winborne, said: "[I]n this State a defendant will not be permitted to plead guilty to murder in the first degree. It is provided in [G.S. 15-172] that `the jury before whom the offender is tried shall determine in their verdict whether the crime is murder in the first or second degree.'" *809 Id. at 616, 14 S.E.2d at 637. The statute and the two cases cited in Blue immediately following the statement that a defendant will not be permitted to plead guilty to murder in the first degree do not support the proposition.
State v. Simmons, 236 N.C. 340, 72 S.E.2d 743 (1952), was also a case in which the defendant, convicted of murder after having pled not guilty, was awarded a new trial for errors in the charge. By way of dictum Justice Winborne again said, "In this connection, this Court has held that in this State a defendant will not be permitted to plead guilty to murder in the first degree. State v. Blue, 219 N.C. 612, 14 S.E.2d 635, and cases there cited." Id. at 341, 72 S.E.2d at 744. For a statement of similar import in a factually similar case see State v. Murphy, 157 N.C. 614, 72 S.E. 1075 (1911).
The statutory form of an indictment for murder, prescribed by Chapter 58, N.C.Sess.Laws (1887) (now G.S. § 15-144), antedated the division of murder into two degrees (G.S. § 14-17). Although the form contained, inter alia, an averment that the accused killed his alleged victim "feloniously, wilfully and of his malice aforethought," it did not include specific averments of premeditation and deliberation, essential ingredients of murder in the first degree. This omission, however, became immaterial when legislative fiat made the existing form a sufficient indictment for murder in either the first or second degree. G.S. § 15-172; State v. Talbert, 282 N.C. 718, 194 S.E.2d 822 (1973); State v. Duncan, 282 N.C. 412, 193 S.E.2d 65 (1973); State v. Matthews, 142 N.C. 621, 55 S.E. 342 (1906). Clearly, therefore, the purpose of the requirement that the jury determine whether one charged under the statutory form is guilty of murder in the first or second degree, was merely to eliminate that uncertainty when the defendant's plea was not guilty.
It has never been doubted that a defendant indicted for murder in the form prescribed by G.S. § 15-144, could plead guilty of murder in the second degree or manslaughter. Thus, it appears that the statutory requirement that the jury determine the degree of murder of which a defendant is guilty is only incidentally related to the death penalty. See Green v. Commonwealth, supra.
It was suggested in State v. Peele, 274 N.C. 106, 111, 161 S.E.2d 568, 572, cert. denied, 393 U.S. 1042, 89 S.Ct. 669, 21 L.Ed.2d 570 (1968), that the statutory authority for the rule stated in Murphy, Blue and Simmons, repeated in Peele, that our practice does not permit a defendant to plead guilty to a capital felony, was to be found in the word convicted as used in the first sentence of G.S. § 15-189 (1965). This sentence says, "Upon the sentence of death being pronounced against any person in the State of North Carolina convicted of a crime punishable by death, it shall be the duty of the judge pronouncing such death sentence to make the same in writing.. . ."
In Peele, we ignored the rule that when a defendant unequivocally and unconditionally pleads guilty to a specific crime he has supplied any want of evidence and furnished the necessary proof. "He has convicted himself." State v. Branner, supra, 149 N.C. at 562, 63 S.E. at 170; State v. Perry, supra. Since an accused may be convicted by his plea as well as by a verdict, we see no reason to read into G.S. § 15-189 a legislative attempt to distinguish between conviction by plea and by verdict.
Notwithstanding the lack of statutory authority to sustain the rule promulgated by the Court, that an accused will not be permitted to plead guilty to a crime for which the penalty is death, the legislature has not seen fit to change it. It has long since become the public policy of this State. Indeed, one accused of a capital crime may not even waive the finding of a bill of indictment against himself. G.S. § 15-140.1 (1965). The idea that a person should be allowed to decree his own death *810 has been unacceptable, not only to the judiciary, but to the citizens at large. This State has inflicted the supreme penalty only when a jury of twelve has been convinced beyond a reasonable doubt of the guilt of the accused after a trial conducted with all the safeguards appropriate to such a proceeding.
In 1953, by G.S. § 15-162.1 (repealed 1971), the General Assembly authorized a defendant charged with a capital crime, after arraignment, to tender a plea of guilty signed by himself and his counsel. However, if the plea was accepted by the State and the court, the statute provided that the defendant's punishment "shall be imprisonment for life in the State's prison." Thus, in the only instance in which the legislature ever authorized a plea of guilty to a crime for which the punishment could be death, it did so to enable the accused to avoid that ultimate punishment. With reference to this statute, in State v. Peele, supra, 274 N.C. at 111, 161 S.E.2d at 572, this Court said:
"Except as provided in G.S. § 15-162.1, the North Carolina practice will not permit a defendant to plead guilty to a capital felony. * * * G.S. § 15-162.1 is primarily for the benefit of a defendant. Its provisions may be invoked only on his written application. It provides that the State and the defendant, under rigid court supervision, may, without the ordeal of a trial, agree on a result which will vindicate the law and save the defendant's life."
In a concurring and dissenting opinion in State v. Spence, 274 N.C. 536, 553, 164 S.E.2d 593, 603, vacated, 392 U.S. 649, 88 S.Ct. 2290, 20 L.Ed.2d 1350 (1968), Chief Justice Bobbitt noted that "[p]rior to the adoption of G.S. § 15-162.1, the court would not under any circumstances accept a plea of guilty of murder in the first degree."
The Supreme Court of the United States, however, caused the repeal of G.S. § 15-162.1 by its decision in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). See N.C.Sess.Laws, Ch. 117 (1969); N.C.Sess.Laws, Ch. 562 (1971); N.C.Sess.Laws, Ch. 1225 (1971); State v. Miller, 276 N.C. 681, 174 S.E.2d 481 (1970), vacated, 408 U.S. 937, 92 S.Ct. 2863, 33 L.Ed.2d 755 (1972); State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969) (dissenting opinion) rev'd on other grounds, 403 U.S. 948, 91 S.Ct. 2283, 29 L.E.2d 859 (1971).
It is quite clear that the legislature never contemplated a jury verdict upon the issue of punishment alone. G.S. § 14-17 made death the penalty for murder in the first degree, unless "at the time of rendering [the] verdict in open court" the jury recommended that the punishment be imprisonment for life. Thus, the jury's discretion as to the sentence could be exercised only in connection with its verdict upon the issues of the guilt or innocence of the accused.
It follows, therefore, that Judge Braswell was in error in submitting the question of punishment to the jury. It does not follow, however, that defendant's plea and sentence must be set aside.
A capital crime is one which is or may be punishable by death. State v. Mems, 281 N.C. 658, 674, 190 S.E.2d 164, 175 (1972) (concurring opinion); 12 C.J.S. p. 1129 (1938). The basis of the rule that a defendant cannot plead guilty to a capital crime is the fixed belief that a person should not sign his own death warrant and hang himself. There is no rule which precludes a plea of guilty to a crime for which the maximum punishment is life imprisonment. On 13 June 1972, the date defendant pled guilty of a murder committed on 25 October 1970, murder was not a capital crime; the only permissible punishment for murder in the first degree was life imprisonment. State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973). Had defendant's plea been not guilty, had the jury's verdict been guilty of murder in the first degree without a recommendation that *811 his punishment be imprisonment for life, and had Judge Braswell sentenced defendant to death, the decision in Furman would have required us to vacate the death sentence and to order the superior court to impose a life sentence just as we did in Waddell, and also in State v. Hill, 279 N. C. 371, 183 S.E.2d 97 (1971) and other cases in which the United States Supreme Court vacated the death sentence under the authority of United States v. Jackson.
It is true that at the time defendant entered his plea of guilty he did so in the belief (shared by court and counsel) that the jury would have to fix his punishment and that it would be death, unless the jury recommended it be life imprisonment. It may also be true that defendant was moved to enter the plea by the hope that his confession of guilt would cause the jury to recommend life imprisonment. If so, the strategy accomplished his purpose. However, it was strategy based solely upon his own notions of psychology, for G.S. § 15-162.1 had been repealed. The law offered him no inducement to plead guilty.
In this case the State's evidence made out a vicious case of murder in the first degree. Defendant's only defense, amnesia brought on by the voluntary consumption of alcohol, was not one likely to be readily accepted by the jury in view of the State's evidence tending to show his prior threats to kill his wife and his volunteered post-arrest statements that he had done what he intended to do. Considering all the circumstances, it is not surprising that defendant was willing to enter a plea of guilty of murder in the first degree, and it is clear that the State would have accepted no lesser plea. We can perceive no possible prejudice to defendant from his plea. The jury's verdict gave him the life sentence he had asked for, the minimum punishment for murder in the first degree under the law as it was then thought to be.
Defendant makes no contention that his plea was coerced by the fear of death or that it was not voluntarily and understandingly made. Indeed, the record shows it to have been his considered choice, freely made after consultation with competent counsel. Defendant's contention is that his plea was void because it was a plea of guilty to a capital crime. As heretofore pointed out, this contention is not correct. We note, however, that had the homicide occurred after 18 January 1973, the contention would have had to be sustained. See State v. Waddell, supra.
The judgment of the Superior Court is
Affirmed.
