
171 S.E.2d 886 (1970)
STATE of North Carolina
v.
Robert Louis ROSEBORO.
No. 25.
Supreme Court of North Carolina.
January 30, 1970.
*890 Robert Morgan, Atty. Gen., Burley B. Mitchell, Jr., Raleigh, Staff Atty., for the State.
Chambers, Stein, Ferguson & Lanning, by J. LeVonne Chambers and James E. Ferguson, II, Charlotte, for defendant.
HIGGINS, Justice.
The defendant, through his able and experienced counsel, by many objections and exceptions, has challenged the validity of the indictment, the trial, the verdict, and the sentence. The challenge to the indictment was based upon these grounds: (1) The grand jury in Cleveland County which returned the indictment was unlawfully constituted in that members of the defendant's economic class and race were systematically excluded from the jury list; (2) That a charge of murder in the first degree, carrying the death penalty, is cruel and unusual punishment and violates the defendant's constitutional rights; (3) That G.S. § 14-17, which provides the penalty of death for murder in the first degree, and G.S. § 15-162.1, in effect at the time of the alleged offense (but later repealed), required the defendant to risk his life in order to exercise his right to a jury trial; (4) That the statute which gives the jury the right to recommend life imprisonment violates the defendant's constitutional rights in that no rules or standards are fixed by which the jury may be guided in determining whether to recommend life imprisonment.
The indictment was returned by a grand jury from Cleveland County. According to the evidence and the court's findings, the grand jury was properly constituted. Actually, approximately 50% of its members were of the defendant's race. There is no evidence with respect to the economic status of the members of the grand jury or of the defendant, other than the evidence and finding that all members of the jury were employed except one who was retired. The motion to quash the indictment on the first ground is not sustained. The other grounds assigned in the motion to quash are hereafter discussed in connection with the defendant's other objections and exceptions.
*891 The defense counsel moved for a change of venue upon the ground of extensive and unfavorable publicity, not only in Cleveland County, but also in the adjoining counties of Gaston and Rutherford. In lieu of an order of removal, the court, as authorized by G.S. § 9-12, ordered that a jury be summoned from the adjoining county of Burke. An original and two additional writs of venire facias were issued and returned. The defendant challenged the array of veniremen brought in under the authority of each writ. The ground of the challenge was that members of the defendant's economic class and race were systematically excluded from the jury list in Burke County. The court conducted a detailed inquiry, and upon proper evidence, found that 6 to 8% of the total population of Burke County were members of the defendant's race. The inquiry disclosed that the special veniremen were impartially selected from a properly compiled jury list. Actually, two members of the colored race were summoned on the original venire, three on the first additional venire, and two on the second additional venire. The record does not disclose with certainty how many veniremen actually reported in obedience to the writs.
In the actual selection of the trial jury, the court permitted attorneys both for the State and for the defendant to explore in detail the background and fitness of each venireman to serve on the jury. The examinations followed the North Carolina practice and custom. Each venireman was individually sworn to make true answers to the court or anyone under its direction on matters touching his fitness to serve as a juror. The record of the examinations by the solicitor and defense counsel, and by the court, are fully set out. The examinations and findings leading to the selection of the jury appear on 416 pages of the trial record. Members of the colored race were passed by the court as qualified to sit on the trial panel. The record shows that some of these, possibly all, were removed by peremptory challenge after their fitness to serve had been found by the court. The State did not exceed its number of peremptory challenges.
The jury selection conformed to the pattern approved by both State and Federal decisions. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776; State v. Peele, 274 N.C. 106, 161 S.E.2d 568; State v. Spence & Williams, 274 N.C. 536, 164 S.E.2d 593; State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241; State v. Hill, 276 N.C. 1, 170 S.E.2d 885; State v. Ruth, 276 N.C. 36, 170 S.E.2d 897. The record fails to disclose any violation of defendant's constitutional rights in the selection of the trial jury. The court's finding to that effect is sustained by the evidence.
To avoid misunderstanding, we call attention to the form of questions propounded to prospective jurors by counsel for the defendant, by the solicitor for the State, and occasionally by the court, concerning the venireman's attitude regarding the recommendation which the jury may make with respect to punishment in the event a guilty verdict had been agreed upon. Here is a question from the record: "Would you exercise an independant determination yourself, irrespective of how the other jurors felt on the matter of mercy or no mercy?" Here is a typical question: "If your verdict is guilty of murder in the first degree, would you consider recommending mercy?" G.S. § 14-17 defines murder in the first degree and upon conviction "shall be punished with death: Provided, if at the time of rendering its verdict in open court, the jury shall so recommend, the punishment shall be imprisonment for life in the State's prison, and the court shall so instruct the jury". The verdict in a criminal case is a basic part of the record proper. It should be correct. We need not speculate what judgment the court could impose if the jury did no more than recommend mercy.
A short summary of the State's evidence offered before the trial jury appears in the statement of facts. We hold the evidence *892 was amply sufficient to make out a case of murder in the first degree and to sustain a verdict of guilty as charged. The defendant did not offer evidence. The court charged the jury to return one of four permissible verdicts: (1) Guilty of murder in the first degree; (2) Guilty of murder in the first degree with the recommendation that the punishment shall be imprisonment for life in the State's prison; (3) Guilty of murder in the second degree; (4) Not guilty.
The defendant, in addition to the grounds assigned in the motion to quash the indictment, contends the court committed error by failing to charge that the evidence permitted the jury to return a verdict "guilty of manslaughter". Evidence of manslaughter is lacking. The crime is defined as the unlawful killing of a human being without malice, express or implied, without premeditation and deliberation, and without the intention to kill or to inflict serious bodily injury. State v. Kea, 256 N.C. 492, 124 S.E.2d 174; State v. Foust, 258 N.C. 453, 128 S.E.2d 889; State v. Benge, 272 N.C. 261, 158 S.E.2d 70.
The evidence permitted the jury to find the defendant had inflicted numerous "club" wounds on his victim's head, four deep stab wounds in the chest, and one in the abdomen. These brutal wounds were inflicted on a helpless woman alone in her shop. The defendant was discovered in the shop armed with a pistol, attempting to hide, and when forced out by tear gas, he had in his pocket the victim's keys to the store doors and to the cash register. He also had in his pocket the victim's cigarette lighter. He had blood on his pockets and on his clothing. The sun glasses which he had bought less than two hours before were found under the victim's clothes in the bathroom. The disarray of the clothing would admit a finding the victim was forced to disrobe. The sun glasses and the knife were with the clothes. Any reasonable interpretation of the evidence permits a finding that the defendant did the killing with malice, after premeditation and deliberation (State v. Walters, 275 N.C. 615, 170 S.E.2d 484), and in the perpetration or attempt to perpetrate a felony (State v. Hill, supra; State v. King, 226 N.C. 241, 37 S.E.2d 684. Evidence of manslaughter or anything from which manslaughter might be inferred is absent. State v. Ruth, supra; State v. Hill, supra; State v. Atkinson, supra.
For the correct rule with respect to proof by circumstantial evidence, see State v. Stephens, 244 N.C. 380, 93 S.E.2d 431.
This Court, in many cases, has held valid the provision that the jury, after finding guilt of a capital felony, may return as a part of its verdict, a recommendation that the punishment shall be imprisonment for life in the State's prison. The court must impose the life sentence, and no other. The cases also hold that absent a recommendation, the court must impose the death sentence. Reasons for the holding are set forth in detail in State v. Peele, supra; State v. Spence & Williams, supra; State v. Atkinson, supra; State v. Hill, supra; State v. Ruth, supra. We adhere to the decisions for the reasons fully stated in the opinions.
We think the General Assembly of 1949, which inserted the provision, intended to give the jury the unencumbered and unconditional right to make the recommendation. The purpose was to permit the jury, after hearing all the evidence, to determine whether the State would take or spare the life of the accused. We see no more objection to giving this power to the jury than to require it to decide between murder in the first degree and murder in the second degree. The former takesthe latter sparesthe life of the accused. After guilt in a capital case has been established by the jury, its recommendation as to punishment does not violate the defendant's constitutional rights. "The States are free to allocate functions between judge and the jury as they see fit." Jackson v. Denno, *893 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (Footnote 19) ; State v. Hill, supra.
The defendant's objection to the provision which permits the jury to recommend life imprisonment on the ground that it lacks any standard or rule to govern a jury in determining whether to make a recommendation is not sustained. The very lack of any standard or rule leaves the jury without restriction, free to save the life of the accused as an unfettered act of grace. If rules or standards are prescribed, the right of the jury becomes restricted and fettered and the chance of a recommendation is reduced. The defendant's claim that he is prejudiced by the provision, or the lack of guide lines for its use, is an empty argument.
At the time the offense was committed and the indictment was returned in this case, G.S. § 15-162.1 was in effect. The section permitted a defendant in a capital case to tender to the court a written plea of guilty to the charge and if the solicitor for the State agreed to accept the plea, and the presiding judge approved, the acceptance had the effect of a verdict of guilty with a recommendation that the punishment should be imprisonment for life in the State's prison. The section was repealed effective March 15, 1969, eight months after the indictment was returned, but 43 days before the trial. The defendant never at any time tendered or attempted to tender to the State any written plea of guilty to the charge. Nevertheless, the defendant argues that G.S. § 15-162.1 abolished capital punishment in North Carolina. The defendant cites as authority the Supreme Court decision in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138, and the United States Court of Appeals Fourth Circuit decision in Alford v. North Carolina, 4 Cir., 405 F.2d 340.
This Court has repeatedly held that G.S. § 15-162.1 (Chapter 616, Session Laws of 1953) did not alter G.S. § 14-17. The 1953 Act offered a means by which a defendant charged with a capital felony and his counsel were permitted to tender the plea of guilty, which plea, if and when accepted, had the effect of a conviction with a recommendation that the punishment be imprisonment for life in the State's prison. Neither the prosecutor nor the judge was under any obligation to accept the plea. Clearly, until the plea was offered and accepted, the offer was without legal effect. The Act provided: "Upon rejection of such plea (and of course if it was never tendered) the trial shall be upon the defendant's plea of not guilty, and such tender shall have no legal significance whatever." The repeal in 1969 neither added to, nor took from, G.S. § 14-17. As stated by Justice Lake in State v. Atkinson, supra, the section, G.S. § 14-17 "* * * is capable of standing alone". We do not interpret United States v. Jackson, supra, as deciding that capital punishment for first degree murder is abolished in North Carolina by G.S. § 15-162.1.
In Alford v. North Carolina, supra, the United States Court of Appeals for the Fourth Circuit apparently attempted to pass on the validity of G.S. § 14-17 and hold the death penalty invalid. A charge of murder in the first degree includes murder in the second degree and manslaughter. In the Alford case the defendant entered a plea of guilty of murder in the second degree and was sentenced to a prison term. We consider the decision neither authoritative nor persuasive.
As in Hill, the defendant Roseboro has raised questions and presented arguments other than those which involve matters of law or legal inference, for example, the defendant's age, "around 16". The defendant failed to offer evidence indicating or suggesting lack of legal responsibility for his criminal acts. Article IV, Section 10 of the North Carolina Constitution fixes the jurisdiction of this Court: "The Supreme Court shall have jurisdiction to review upon appeal any decision of the courts below, upon any matter of law or legal inference."
*894 This Court has neither the power to change the law nor to remit the penalty the law exacts after conviction. The Court hears appeals and determines whether the trial court committed prejudicial error of law or legal inference. Hence, appeals for changes in the law should be made to the Legislature; appeals for relief from its penalties after conviction should be made to the Governor. State v. Hill, supra; State v. Atkinson, supra. The record before us fails to reveal error of law or legal inference in the defendant's indictment, trial, conviction or sentence. We find
No error.
BOBBITT, Chief Justice, and SHARP, Justice (dissenting as to death sentence).
We vote to vacate the judgment imposing the death sentence. In our opinion, the verdict of guilty of murder in the first degree should be upheld and the cause remanded for pronouncement of a judgment imposing a sentence of life imprisonment.
The crime was committed on June 23, 1968, when our statutes relating to capital punishment for murder in the first degree were G.S. § 14-17 and G.S. § 15-162.1. It was and is our opinion that, until the repeal of G.S. § 15-162.1 on March 25, 1969, the decisions of the Supreme Court of the United States in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138, (1968), and in Pope v. United States, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317, (1968), rendered invalid the death penalty provisions of G.S. § 14-17. The reasons underlying our opinion have been stated fully in the dissenting opinions in State v. Spence, 274 N.C. 536, 164 S.E.2d 593, and in State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241, and in State v. Hill, 276 N.C. 1, 170 S.E.2d 885 (1969). Repetition is unnecessary.
G.S. § 15-162.1 was repealed by Chapter 117, Session Laws of 1969. The 1969 Act, if construed to provide greater punishment for murder in the first degree than the punishment provided therefor when the crime was committed, would, in that respect, be unconstitutional as ex post facto. 16 Am.Jur.2d, Constitutional Law § 396. In our view, if the death penalty provisions of G.S. § 14-17 were invalid on June 22, 1968, when the crime was committed, they were invalid as to this defendant in April, 1969, when he was tried, convicted and sentenced.
