
105 S.E.2d 446 (1958)
249 N.C. 113
STATE
v.
Allen DENNY.
No. 364.
Supreme Court of North Carolina.
October 29, 1958.
*448 Malcolm B. Seawell, Atty. Gen., Claude L. Love, Asst. Atty. Gen., for the State.
J. H. Whicker, Sr., North Wilkesboro, Allen, Henderson & Williams, Elkin, for defendant appellant.
WINBORNE, Chief Justice.
The record on this appeal discloses that the case in hand was tried in Superior Court upon the theory that, in view of the statement by the Solicitor, as above recited, "the charge of murder in the first degree is no longer in this case, but the charge of murder in the first degree with recommendation for mercy is in the case." The question then arises as to whether there is in this State any crime known to criminal law as "murder in the first degree with recommendation of mercy." The answer is "No." Recommendation by the jury pertains to punishment, and is not an element of murder in the first degree.
In this connection, G.S. § 14-17, as amended by Section 1 of Chapter 299 of 1949 Session Laws of North Carolina, provides that "A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of 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. All other kinds of murder shall be deemed murder in the second degree, and shall be punished," etc.
The proviso embraces the 1949 amendment, and has been the subject of discussion in several cases. State v. McMillan, 233 N.C. 630, 65 S.E.2d 212; State v. Marsh, 234 N.C. 101, 66 S.E.2d 684; State v. Simmons, 234 N.C. 290, 66 S.E.2d 897; Id., 236 N.C. 340, 72 S.E.2d 743; State v. Dockery, 238 N.C. 222, 77 S.E.2d 664; State v. Conner, 241 N.C. 468, 85 S.E.2d 584; State v. Carter, 243 N.C. 106, 89 *449 S.E.2d 789; State v. Adams, 243 N.C. 290, 90 S.E.2d 383; State v. Cook, 245 N.C. 610, 96 S.E.2d 842.
In the McMillan case, supra [233 N.C. 630, 65 S.E.2d 213], this Court said that "The language of this amendment stands in bold relief. It is plain and free from ambiguity and expresses a single, definite and sensible meaning,a meaning which under the settled law of this State is conclusively presumed to be the one intended by the Legislature." And, continuing, the Court then declared: "It is patent that the sole purpose of the act is to give to the jury in all cases where a verdict of guilty of murder in the first degree shall have been reached, the right to recommend that the punishment for the crime shall be imprisonment for life in the State's prison * * * No conditions are attached to, and no qualifications or limitations are imposed upon, the right of the jury to so recommend. It is an unbridled discretionary right. And it is incumbent upon the court to so instruct the jury. In this, the defendant has a substantive right. Therefore, any instruction, charge or suggestion as to the causes for which the jury could or ought to recommend is error sufficient to set aside a verdict where no recommendation is made."
Thus the statute "commits the matter to the unrestrained discretion of the jury." State v. Marsh, supra [234 N.C. 101, 66 S.E.2d 688], citing the McMillan case. To like effect are the holdings in above cited cases.
In State v. Carter, supra [243 N.C. 106, 89 S.E.2d 790], opinion by Johnson, J., it is stated:
"Prior to 1949, the punishment for murder in the first degree was death. A recommendation of mercy by the jury meant nothing as bearing on the duty of the judge to impose punishment. The recommendation was treated as surplusage. The death sentence followed as a matter of course. It was so fixed by statute, G.S. § 14-17.
"But this has been changed. Now, by virtue of Chapter 299 Session Laws of 1949, the statute, G.S. § 14-17, contains a proviso which directs that `if at the time of rendering its verdict in open court, the jury shall so recomend, the punishment shall be imprisonment for life in the State's prison, and the court shall so instruct the jury.'"
And it is then declared that "the jury now has discretionary right to recommend `imprisonment for life in the State's prison.' Now the recommendation when made may not be treated as surplusage. The recommendation has the salutary effect of mitigating the punishment from death to imprisonment for life, and the Act of 1949 expressly provides that the `court shall so instruct the jury.' * * * It is not enough for the judge to instruct the jury that they may recommend life imprisonment. The statute now requires that he go further and tell the jury what the legal effect of such recommendation will be, i. e., that if they make the recommendation, it will mitigate the punishment from death to imprisonment for life in the State's prison." To like effect are State v. Adams, supra, and State v. Cook, supra.
It is fair to say that the case of State v. Green, 246 N.C. 717, 100 S.E.2d 52, 53, doubtless caused the procedure followed in this case. There the defendant was charged with rape, and the Solicitor for the State made this announcement at the outset of the trial: "The State will not ask for a verdict of guilty of the capital crime carrying the death penalty, but will ask for a verdict of guilty of rape, with the recommendation of life imprisonment or guilty of attempt to commit rape, as the facts and law may justify." The jury returned *450 verdict of "Guilty of an assault with intent to commit rape."
And on appeal to this Court there was no exception to the statement of the Solicitor, and consideration of it was not essential to decision on matters presented. Hence no expression of opinion by this Court in respect thereto was then made. The statement of the Solicitor had been by-passed, so to speak, by the verdict of the jury finding defendant guilty of a lesser offense than rape.
For reasons stated herein the judgment in the instant case will be arrested, and a new trial ordered.
New trial.
PARKER, J., not sitting.
