
170 S.E.2d 885 (1969)
STATE of North Carolina
v.
Marie HILL.
No. 2.
Supreme Court of North Carolina.
December 10, 1969.
*891 Robert Morgan, Atty. Gen., Ralph Moody, Deputy Atty. Gen., Carlos W. *892 Murray, Jr., Raleigh, Staff Attorney, for the State.
J. LeVonne Chambers, Chambers, Stein, Ferguson & Lanning, Charlotte, Roy C. Boddie, Rocky Mount, for defendant.
North Carolina Civil Liberties Union, Norman B. Smith, Greensboro, Charles E. Lambeth, Jr., Thomasville, Kenneth S. Broun, Kenneth S. Penegar, Chapel Hill, amicus curiae.
HIGGINS, Justice.
Article XI, Section 2, North Carolina Constitution, provides: "* * * murder, arson, burglary, and rape, and these only, may be punishable with death, if the General Assembly shall so enact."
The General Assembly, by G.S. § 14-17, provided: "Murder in the first and second degree defined; punishment.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, 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 with imprisonment of not less than two nor more than thirty years in the State's prison."
The proviso was inserted in the section by Chapter 299, Session Laws of 1949. At the same time, similar provisions were inserted in the other capital felony statutes, pertaining particularly to arson, first degree burglary, and rape. By Chapter 16, Session Laws of 1953, the General Assembly enacted G.S. § 15-162.1, which provided: "Plea of guilty of first degree murder, first degree burglary, arson or rape.(a) Any person, when charged in a bill of indictment with the felony of murder in the first degree, or burglary in the first degree, or arson, or rape, when represented by counsel, whether employed by the defendant or appointed by the court under G.S. 15-4 and 15-5, may, after arraignment, tender in writing, signed by such person and his counsel, a plea of guilty of such crime; and the State, with the approval of the court, may accept such plea. Upon rejection of such plea, the trial shall be upon the defendant's plea of not guilty, and such tender shall have no legal significance whatever. (b) In the event such plea is accepted, the tender and acceptance thereof shall have the effect of a jury verdict of guilty of the crime charged with recommendation by the jury in open court that the punishment shall be imprisonment for life in the State's prison; and thereupon, the court shall pronounce judgment that the defendant be imprisoned for life in the State's prison. (c) Unless and until the State accepts such plea, no reference shall be made in open court at the time of arraignment or at any other time to the tender or proposed tender of such plea; and the fact of such tender shall not be admissible as evidence either for or against the defendant in the trial or at any other time and place. The defendant shall have the right to withdraw such plea, without prejudice of any kind, until such time as it is accepted by the State."
However, by Chapter 117, Session Laws of 1969, the General Assembly repealed G.S. § 15-162.1 effective March 25, 1969. The crime here involved was committed before the repeal. The effect of the section has been discussed in a number of our cases. State v. Peele, 274 N.C. 106, 161 S. E.2d 568; State v. Spence and Williams, 274 N.C. 536, 164 S.E.2d 593, and more recently State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241.
To become applicable or operative, a defendant and his counsel were required to file a written plea of guilty which the *893 prosecution and the court might or might not approve. If the tender of the plea is not approved "the trial shall be upon the defendant's plea of not guilty and such tender shall have no legal significance whatever." It seems the defendant might avail himself of the right to tender a written plea of guilty but a failure to tender such plea leaves the section inoperative. The absence of the written plea left the terms of G.S. § 14-17 in full force and effect. The repeal of G.S. § 15-162.1 did not modify, change, add to, or take from G.S. § 14-17, under which the indictment here involved was drawn. The verdict of the jury as returned without a recommendation that the punishment be imprisonment for life required the court to impose the death sentence. State v. Atkinson, supra; State v. Spence and Williams, supra; State v. Forcella, 52 N.J. 263, 245 A.2d 181.
The defendant challenges the sufficiency of the verdict to support the judgment imposed. After its deliberation, the jury returned to the courtroom and announced agreement on a verdict and designated Juror Williams as foreman to speak for the jury. Juror Williams: "Your honor, we, the jury, find the defendant guilty of murder in the first degree." The court asked the jury: "With that verdict do you make any recommendation?" The foreman replied: "We did not come to that agreement". This means that the jury did not agree to make any recommendation. After further discussion and question whether they made any recommendation, the foreman replied: "We did not". The clerk then said: "Hearken to your verdict, as the Clerk recordeth. You say that Marie Hill is guilty of Murder in the First Degree whereof she stands charged, so say you all?" By the Jury: "Yes." If defendant or counsel had any doubt concerning the unanimity of the jurors in the announced verdict, they should have had the jury polled. State v. Cephus, 241 N.C. 562, 86 S.E.2d 70.
Review discloses that the court charged fully and correctly with respect to the right of a jury as a part of its verdict to make the recommendation that punishment should be imprisonment for life. Such recommendation would require the court to impose that sentence and no other. In the absence of the recommendation, the court had before it a verdict of guilty of murder in the first degree. The verdict required the court to impose the death sentence. State v. Atkinson, supra, and cases therein cited.
In this case the evidence of guilt is overwhelming. The defendant was advised of the charge against hermurdera serious crime; that she had the right to counsel, to remain silent; and that any admissions she made would be used against her in court. She voluntarily made the admissions heretofore detailed and later, upon the prompting of Virginia Staton, denied them. The following day, when asked by the officers which of her stories was correct, she again admitted the robbery and killing and voluntarily went with the officers to the Strum store and re-enacted the happenings as they occurred on the morning of October 7, 1968.
In response to this question by her attorney, "Did he (Detective Winstead) force you to tell him anything?", she answered, "No, he did not in any way put any pressure on me to confess. I did tell him I wanted to go ahead and tell the truth. I told him I had been in Mr. Strum's store many times before. He knew me and knew what my name was. That was why I shot him. I did tell Mr. Winstead that that was why I did it. I did tell Mr. Winstead that I shot Mr. Strum and pointed out to Mr. Mullen right where I shot him the first time. I did show him exactly where Mr. Strum fell. When we went to the store, I showed Mr. Winstead approximately where I shot Mr. Strum the second time. I did point out where they could find the broken bottle."
From the witness stand, however, she denied the truthfulness of her confession or *894 that she was even in the City of Rocky Mount at the time Mr. Strum was robbed and murdered. The witnesses by whom she sought to prove an alibi did not impress the jury. In fact, the elaborate and exhaustive briefs filed by counsel for the defendant and, on her behalf by the North Carolina Civil Liberties Union as amicus curiae, do not discuss guilt or innocence. Counsel do argue, however, the court committed error in permitting the prosecution to introduce in evidence the defendant's confession made to the officers in Kingstree, South Carolina and, after a denial suggested by her friend Virginia Staton at police headquarters in Rocky Mount, but thereafter confirmed by the defendant who voluntarily went to the Strum store and, in the presence of the officers, re-enacted the robbery and shooting of Mr. Strum. The confession and the re-enactment fitted into the picture in such manner that the only logical conclusion is that the narrator must have been present at the time of the holdup. In fact, she pointed out one of the weapons she had used (a bottle) which the officers had failed to discover in their search.
Counsel contend, because of the defendant's age and immaturity, her confession made in the absence of counsel should have been excluded. It would seem that one who has arrived at the age and condition of accountability for crime may make a valid waiver of counsel, and make a voluntary confession. Defense counsel cite, contra, State v. Thorpe, 274 N.C. 457, 164 S.E.2d 171. In Thorpe, this Court decided the evidence on the voir dire was insufficient to support a finding Thorpe knowingly and understandably waived his right to counsel at his in custody interrogation which produced the incriminating admissions. This Court ordered a new trial because the admissions were introduced in evidence without a finding (based on evidence) that Thorpe had waived the right to counsel at his in custody interrogation.
Defense counsel argue the defendant's waiver of a preliminary hearing without counsel was prejudicial. Nothing done or said at the preliminary hearing, which defendant waived without counsel, had bearing on the trial. The trial was based entirely on a Grand Jury indictment returned subsequent to the preliminary hearing. Absence of counsel was non-prejudicial. Gasque v. State, 271 N.C. 323, 156 S.E.2d 740; State v. Hargett, 255 N.C. 412, 121 S.E.2d 589; United States ex rel. Hughes v. Galt, 271 U.S. 142, 46 S.Ct. 459, 70 L.Ed. 875.
Defense counsel also argue that the voluntariness of the confession should have been one of the issues submitted to the trial jury. Under North Carolina procedure, voluntariness is a preliminary question to be passed on by the trial judge in the absence of the jury. State v. Vickers, 274 N.C. 311, 163 S.E.2d 481; State v. Gray, 268 N.C. 69, 150 S.E.2d 1; State v. Barnes, 264 N.C. 517, 142 S.E.2d 344. This procedure, we think, is approved by the Supreme Court of the United States. In Jackson v. Denno, 378 U.S. 368 (Footnote 19), 84 S.Ct. 1774, 12 L.Ed.2d 908, the Court uses this language: "* * * (T)he states are free to allocate functions between the judge and the jury as they see fit."
Defense counsel argue a new trial should be ordered upon the ground the court failed to charge the jury it might return a verdict of murder in the second degree. It is true that in a case of first degree murder, committed after premeditation and deliberation, a verdict of second degree murder is permissible if the jury should fail to find premeditation and deliberation. However, in a case of murder in the first degree committed in the perpetration of, or attempt to perpetrate, a robbery, instruction that the jury should return a verdict of guilty as charged, guilty as charged with a recommendation for life imprisonment, or not guilty is a proper instruction. When the indictment and evidence disclose a killing in the perpetration of a robbery, only one of such verdicts may be returned. *895 State v. Linney, 212 N.C. 739, 194 S.E. 470; State v. Myers, 202 N.C. 351, 162 S.E. 764; State v. Spivey, 151 N.C. 676, 677, 65 S.E. 995. These cases were decided before the passage of the act permitting the jury to recommend life imprisonment. They hold that a verdict of guilty of murder in the first degree, or not guilty, is a proper verdict.
All the evidence in the case before us shows a killing in the perpetration of a robbery. The court charged the jury: "So, if, upon consideration of the evidence, the State has satisfied you from the evidence and beyond a reasonable doubt that the defendant committed the crime of robbery with firearms against the person of W. E. Strum and during the perpetration or commission of that crime that she killed him with a .25-caliber pistol, then you would return one of two verdicts: either guilty of murder in the first degree, or guilty of murder in the first degree with a recommendation that the prisoner's punishment be imprisonment for life in the State's Prison instead of death. If you have a reasonable doubt as to her guilt, you would return a verdict of not guilty." The charge required proof beyond a reasonable doubt that the killing was in the perpetration of a robbery.
Both in the briefs and in the oral argument, counsel addressed to us a potent appeal to save this girl from the judgment imposed in the trial court. The plea is based on the defendant's tender age, her lack of opportunity, and the tragic family life disclosed in the confession which she wrote (while alone), delivered to the officers, and which was introduced in evidence and made a part of the record before us. Consideration of an appeal not based on errors of law is beyond judicial competence. Before the law, each individual stands on an equal footing.
Each member of this Court is required to take an oath that he will administer justice without respect to persons and do equal right to the State and individuals, and perform all duties agreeably to the Constitution and laws of the State. Under the constitutional division of governmental powers, the Legislative Branch makes the laws; the Judicial Branch interprets them; and the Executive Branch executes them. The clear intent of the Constitution is that each of these governmental divisions should confine its activities to its own field. Article III of the North Carolina Constitution, in Section 6, provides that the Governor shall have power to grant reprieves, commutations and pardons after conviction (except in cases of impeachment) upon such conditions as he may think proper (subject to such regulations as may be provided by law relative to the manner of applying for pardons).
This Court has neither the power to change the law nor to remit the penalty the law exacts for its violation. This 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.
Error of law or legal inference does not appear in the record before us. In the trial and judgment, we find
No error.
MOORE, J., did not participate in the consideration or decision of this case.
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.
G.S. § 15-162.1, which was in force when defendant was arraigned, tried and convicted, provided that the tender and acceptance of a plea of murder in the first degree, *896 rape, burglary in the first degree, or arson, had the effect of a verdict of guilty of such crime with recommendation by the jury that the punishment be imprisonment for life in the State's prison; and, in such event, required that the court pronounce a judgment of life imprisonment. If a plea of guilty was tendered by a defendant and accepted by the State, with the approval of the court, the defendant by such plea avoided a jury trial and the possibility of a conviction resulting in a death sentence. G.S. § 15-162.1 was repealed March 25, 1969.
It is, and has been, our opinion that, prior to the repeal of G.S. § 15-162.1, the death penalty provisions relating to murder in the first degree, rape, burglary in the first degree and arson (G.S. § 14-17, G.S. § 14-21, G.S. § 14-52 and G.S. § 14-58, respectively) were invalidated by 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). The reasons for our opinion are set forth 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. If our view is correct, North Carolina had no death penalty in December, 1968, when Marie Hill was convicted of murder in the first degree and sentenced to die.
In Alford v. State of North Carolina, 405 F.2d 340, a panel of the United States Court of Appeals for the Fourth Circuit in a split decision (two to one) held the Jackson and Pope decisions invalidated the death penalty provisions of our North Carolina statutes. The Supreme Court of the United States granted certiorari, 394 U. S. 956, 89 S.Ct. 1306, 22 L.Ed.2d 558, to review the Alford case and heard oral arguments therein on November 17, 1969. Its decision may determine whether Jackson and Pope did invalidate the death penalty provisions of our North Carolina statutes as they existed prior to March 25, 1969.
Notwithstanding the repeal of G.S. § 15-162.1, uncertainty as to the validity of the death penalty provisions of our North Carolina statutes continues for reasons other than those discussed in Jackson and Pope. These additional questions may be resolved by the forthcoming decision of the Supreme Court of the United States in the case of Maxwell v. Bishop, which was first argued at the Spring Term 1969 and has been set for reargument at the Fall Term 1969. Maxwell v. Bishop involves Arkansas statutes containing provisions similar to those in our North Carolina statutes. The Supreme Court in allowing certiorari to review the decision of the United States Court of Appeals for the Eighth Circuit (Maxwell v. Bishop, 398 F.2d 138), limited consideration to Questions 2 and 3 of the petition for certiorari, viz.:
"2. Whether Arkansas' practice of permitting the trial jury absolute discretion, uncontrolled by standards or directions of any kind, to impose the death penalty violates the Due Process Clause of the Fourteenth Amendment?
"3. Whether Arkansas' single-verdict procedure, which requires the jury to determine guilt and punishment simultaneously and a defendant to choose between presenting mitigating evidence on the punishment issue or maintaining his privilege against self-incrimination on the guilt issue, violates the Fifth and Fourteenth Amendments?"
It seems probable that the decision in Maxwell v. Bishop will settle existing uncertainty as to the validity of our present statutory provisions relating to capital punishment. If it should be determined that the majority of this Court are correct in their view that the death penalty provisions of our statutes were and are valid, we would join in the decision that the verdict and the judgment imposing the death sentence should be upheld.
On the other hand, if it should be determined by the Supreme Court of the United States that the death penalty provisions of *897 our statutes, as of the date defendant was arraigned, tried and convicted, were invalid, either under the decisions in Jackson and Pope or on grounds that may be decided in Maxwell v. Bishop, we would not disturb the verdict but would remand the cause for pronouncement of a judgment imposing a life sentence.
Our statutes provide only two possible judgments, death or life imprisonment, where a defendant is convicted of murder in the first degree, rape, burglary in the first degree, or arson. If the death penalty provisions are invalidated, the only permissible punishment upon conviction for these crimes is life imprisonment. We are not at all impressed with the suggestion that, even if the death penalty provisions are invalidated, no judgment for imprisonment for life can be pronounced unless the jury, at the time of rendering its verdict in open court, recommends that "the punishment shall be imprisonment for life in the State's prison." If the alternative of death is invalidated, there would be no occasion for the jury to do otherwise than render a verdict as to defendant's guilt. The jury would have no discretion as to whether punishment should be death or life imprisonment. Any recommendation the jury might make in respect of punishment would be inappropriate and without legal significance. Upon conviction, the court would impose the only legally permissible punishment, being the statutory punishment most favorable to the defendant, that is a judgment for imprisonment for life.
The retrial of a capital case, which necessarily requires the expenditure of time and money and imposes great stress and strain upon all who are involved in it, should not be undertaken in the present uncertainty concerning these issues of life and death. Nothing will be lost by deferring our decision in this case until the Supreme Court of the United States has spoken definitively on the crucial questions now before it for decision. We favor that course.
