
199 S.E.2d 431 (1973)
284 N.C. 1
STATE of North Carolina
v.
Johnny James BLACKMON.
No. 2.
Supreme Court of North Carolina.
October 10, 1973.
*436 Robert Morgan, Atty. Gen., Andrew A. Vanore, Jr., Deputy Atty. Gen., Edwin M. Speas, Jr., Associate Atty., Raleigh, for the State of North Carolina.
Elton S. Hudson of Hopkins & Hudson, Albemarle, for defendant appellant.
Norman B. Smith, Greensboro, and Daniel H. Pollitt, Chapel Hill, for the North Carolina Civil Liberties Union Legal Foundation, Inc., amicus curiae.
HUSKINS, Justice:
Defendant assigns as error the admission of his inculpatory statements made while in custody and without benefit of counsel. He contends the incriminating statements are inadmissible because he was indigent at the time, charged with a capital offense, and had not waived his constitutional right to the presence and assistance of counsel. He relies on G.S. § 7A-457(a) as interpreted and applied in State v. Lynch, 279 N.C. 1, 181 S.W.2d 561 (1971), and on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), as interpreted and applied by this Court in State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971).
The trial court found as a fact on voir dire that defendant was twice advised of his constitutional rights as required by Miranda, initially about 6 a. m. following his arrest and again at approximately 10 a.m. on 19 February 1971. Each time defendant said he fully understood those rights. The trial court further found that following the second Miranda warning at 10 a. m., Sheriff McSwain told defendant that his co-defendant Craven Turner, Jr. would be brought into the room and would make a statement, and advised defendant that he did not have to say anything during or after Turner made his statement. Defendant indicated that he understood. Co-defendant Turner was then brought into the room and in the presence of defendant Blackmon, the sheriff, and two other law enforcement officers, made a statement to Blackmon to the effect that he and Blackmon had gone to the Howell residence and that Blackmon had shot Howell. In response to that statement defendant Blackmon said to Turner, "You say I shot him? I say you shot him. You got the gun out of the car." Co-defendant Turner was then taken from the room and immediately thereafter Sheriff McSwain said to defendant Blackmon, "Do you care to make any further statement?" Defendant then said, "I'll just tell you how it was." Defendant then made a detailed statement concerning the events at the James Howell home on 5 January 1971. This statement was a continuous narration, punctuated only by questions from Sheriff McSwain to help keep matters in chronological order. Based on these findings at the conclusion of an extensive voir dire, and in light of the total circumstances, the court concluded "[t]hat the defendant, Johnny James Blackmon, by his words and by his deeds expressly waived these rights on this occasion; that his waiver thereof was freely, understandingly and voluntarily made and that it was done without undue influence, compulsion, duress and without any promise of leniency."
The findings of fact are supported by competent evidence and are conclusive on appeal. State v. McRae, 276 N.C. 308, 172 S.E.2d 37 (1970); State v. Gray, 268 N.C. 69, 150 S.E.2d 1 (1966). Consequently, it is established that defendant was fully advised and understood that he had the right to remain silent; that anything he said could and would be used against him *437 in a court of law; that he had the right to have a lawyer present during interrogation and to confer with counsel before any questioning if he so desired; that if he could not hire his own attorney the State would appoint and pay a lawyer to represent him; and that if he chose to answer questions or make a statement he could stop talking at any time. The findings further establish that defendant never requested the presence of counsel but never said he did not want a lawyer. Finally, the findings establish that his later statement was not coerced but was freely and voluntarily made. These facts, however, are not sufficient to constitute a waiver of counsel. There is neither evidence nor findings of fact to show that defendant expressly waived his right to counsel, either in writing or orally, within the meaning of Miranda on which our decision in State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971), is based. "An individual need not make a pre-interrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given." Miranda v. Arizona, supra. Silence and waiver are not synonymous. "Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver." Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). We said as much on defendant's previous appeal. State v. Blackmon, supra [280 N. C. 42, 185 S.E.2d 123 (1971)].
Although our previous decision in this case negates effective waiver of counsel, other jurisdictions have held somewhat similar factual circumstances to constitute waiver. See, e.g. Mitchell v. United States, 140 U.S.App.D.C. 209, 434 F.2d 483 (D.C.Cir.), cert. denied, 400 U.S. 867, 91 S.Ct. 109, 27 L.Ed.2d 106 (1970); United States v. Hilliker, 436 F.2d 101 (9th Cir. 1970), cert. denied, 401 U.S. 958, 91 S.Ct. 987, 28 L.Ed.2d 242 (1971); United States v. Hayes, 385 F.2d 375 (4th Cir. 1967), cert. denied, 390 U.S. 1006, 88 S.Ct. 1250, 20 L.Ed.2d 106 (1968); People v. Johnson, 70 Cal.2d 541, 75 Cal.Rptr. 401, 450 P.2d 865, cert. denied, 395 U.S. 969, 89 S.Ct. 2120, 23 L.Ed.2d 758 (1969); People v. Higgins, 50 Ill.2d 221, 278 N.E.2d 68, cert. denied, 409 U.S. 855, 93 S.Ct. 195, 34 L.Ed.2d 100 (1972); State v. Kremens, 52 N.J. 303, 245 A.2d 313 (1968); State v. Alewine, 474 S.W.2d 848 (Mo. 1971); see generally Waiver of Rights in Police Interrogations: Miranda in the Lower Courts, 36 U.Chi.L.Rev. 413, 421-430 (1969).
Even so, Miranda warnings and waiver of counsel are only required where defendant is being subjected to custodial interrogation. A volunteered confession is admissible by constitutional standards even in the absence of warning or waiver of rights. Miranda v. Arizona, supra; State v. Wright, 274 N.C. 84, 161 S.E.2d 581 (1968); State v. Haddock, 281 N.C. 675, 190 S.E.2d 208 (1972). While clearly defendant was in custody at the time he made the incriminating statements, his statements were not made in response to police "interrogation," as that word is defined in Miranda, but were more in the nature of volunteered assertions and narrations.
The United States Supreme Court said in Miranda:
"By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.. . . Any statement given freely and voluntarily without any compelling influence, is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings *438 and counsel, but whether he can be interrogated. . . . Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.
Measured by Miranda standards, we hold that defendant's initial response to co-defendant Turner's statement was spontaneous and volunteered and was not elicited by police interrogation. Defendant's further narrative was in response to a neutral question by Sheriff McSwain. As we said in State v. Haddock, supra:
"Volunteered statements are competent evidence, and their admission is not barred under any theory of the law, state or federal. State v. Stepney, 280 N.C. 306, 185 S.E.2d 844 (1972); State v. Ratliff, 281 N.C. 397, 189 S.E.2d 179 (1972); State v. Chance, 279 N.C. 643, 185 S.E.2d 227 (1971); Miranda v. Arizona, supra. And a voluntary in-custody statement does not become the product of an `in-custody interrogation' simply because an officer, in the course of defendant's narration, asks defendant to explain or clarify something he has already said voluntarily."
In Howell v. State, 5 Md.App. 337, 247 A.2d 291 (1968), cert. denied, 396 U.S. 907, 90 S.Ct. 224, 24 L.Ed.2d 183 (1969), after defendant had been given the Miranda warnings, he stated that he did not wish to be questioned. Approximately an hour and a half later, while being "processed" at the police station, he was told in narrative form certain incriminating statements that his accomplice had made about him. Defendant immediately responded with a statement which was offered in evidence at his trial. It was held that the statement did not result from an "interrogation" but was more in the nature of volunteered information.
In State v. Fletcher and State v. St. Arnold, 279 N.C. 85, 181 S.E.2d 405 (1971), the police took the robbery victim, Myers, into defendant's jail cell where a conversation ensued. Myers was allowed to testify at trial: "I asked St. Arnold what did they have against me to rob me; he answered, `We have nothing against you. We were broke and needed some money.'" This Court held that the statement made to Myers by St. Arnold was not the result of police custodial interrogation and was properly admitted in evidence despite the absence of Miranda warnings.
So it is here. There is no evidence in this record of any interrogation or other police procedure tending to overbear the will of the accused in a manner condemned by Miranda. Defendant spoke in the voluntary exercise of his own will and without the slightest compulsion of in-custody interrogation procedures. His statements were therefore properly admitted into evidence as volunteered statments made under circumstances requiring neither warnings nor the presence of counsel.
Whether the trial judge erred in finding as a fact that defendant, who was earning $100.00 per week, was not indigent on 19 February 1971, we need not now decide. An indigent's right to or waiver of counsel under G.S. § 7A-457(a) does not arise and is not involved with respect to volunteered statements. Defendant's first assignment of error is overruled.
Defendant was tried, convicted and sentenced under G.S. § 14-17 which provides in pertinent part as follows:
"A murder which shall be perpetrated. . . by any . . . willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed to be murder in the first degree and 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."
*439 Upon the trial of this case the judge instructed the jury, among other things, as follows: "Ladies and gentlemen, you may return one of three verdicts: you may find the defendant guilty as charged guilty of murder in the first degree, or you may find the defendant guilty of murder in the first degree with a recommendation that punishment be life imprisonment, or you may find the defendant not guilty." the jury returned a verdict of guilty of murder in the first degree with no recommendation and defendant was sentenced to death. He assigns as error the denial of his motion to reduce the judgment from death to life imprisonment. This assignment is sustained. The jury was permitted to exercise its discretion and choose between life and death, a procedure held unconstitutional by the Supreme Court of the United States in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). In State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973), we severed the offending discretionary proviso from the remainder of G.S. § 14-17 leaving the remainder of the statute intact with death as the mandatory punishment for murder in the first degree. However, for the reasons there stated, we held that the mandatory death penalty for capital offenses "may not be constitutionally applied to any offense committed prior to the date of this decision but shall be applied to any offense committed after such date." State v. Waddell, supra. The Waddell decision was filed on 18 January 1973. This offense was committed on 5 January 1971. Thus defendant's death sentence cannot stand. The case must be remanded to the Superior Court of Union County for imposition of a sentence of life imprisonment in accord with previous decisions. State v. Waddell, supra; State v. Miller, 281 N.C. 740, 190 S.E.2d 841 (1972); State v. Hamby and State v. Chandler, 281 N.C. 743, 191 S.E.2d 66 (1972); State v. Chance, 281 N.C. 746, 191 S.E.2d 65 (1972); State v. Westbrook, 281 N.C. 748, 191 S.E.2d 68 (1972); State v. Doss, 281 N.C. 751, 191 S.E.2d 70 (1972).
In an excellent brief for the North Carolina Civil Liberties Union Legal Foundation, Inc., as amicus curiae, the following question is presented for consideration by the Court: "Whether Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), requires that life imprisonment be the sole punishment for previously capital crimes in North Carolina unless and until the Legislature acts to revise the present statutes." For reasons stated in the brief the Court is urged to reconsider that aspect of its decision in State v. Waddell, supra, which holds that the penalty for capital crimes in North Carolina after January 18, 1973, is mandatory death. It is skillfully argued that life imprisonment should be declared to be the sole penalty for the four previously capital crimes in this State murder, arson, burglary and rapeunless and until the Legislature acts to revise the present statutes.
It suffices to say, while the severability of G.S. § 14-17 is adequately documented in Waddell and no persuasive reason appears why that decision should be disturbed, the defendant in this case is not subject to the death penalty. The Court is therefore not inclined to renew the debate on capital punishment in a case in which that penalty is not involved.
For the reasons stated, the judgment of the Superior Court of Union County insofor as it imposed the death penalty upon this defendant is reversed. The case is remanded to the Superior Court of Union County with directions to proceed as follows:
1. The presiding judge of the Superior Court of Union County will cause to be served on the defendant Johnny James Blackmon, and on his counsel of record, notice to appear during a session of said Superior Court at a designated time, not less than ten days from the date of the notice, at which time, in open court, the defendant Johnny James Blackmon, being present in person and being represented by *440 his counsel, the presiding judge, based on the verdict of guilty of murder in the first degree returned by the jury at the trial of this case at the 28 August 1972 Session, will pronounce judgment that the defendant Johnny James Blackmon be imprisoned for life in the State's prison.
2. The presiding judge of the Superior Court of Union County will issue a writ of habeas corpus to the official having custody of the defendant Johnny James Blackmon to produce him in open court at the time and for the purpose of being present when the judgment imposing life imprisonment is pronounced.
Remanded for judgment.
HIGGINS, J., concurs in result.
BOBBITT, C. J., and MOORE, J., dissent.
