“If the objectionable parts of a statute are severable from the rest . . . the statute may be enforced as to those portions of it which are constitutional.” (cleaned up)
How later courts described this case
- “If the objectionable parts of a statute are severable from the rest . . . the statute may be enforced as to those portions of it which are constitutional.” (cleaned up)
- “[T]he constitutional ban against the retroactive increase of punishment for a crime applies as well against judicial action having the same effect.”
Written by the judges who cited it.
The opinion
Justice Higgins
concurring in result.
A Court opinion must reflect the views of the majority of the Court. A concurring in result opinion may reflect the individual views of the writer.
In my opinion, Furman v. Georgia, 408 U.S. 238 , 33 L.Ed. 2d 346 , does not work any change in North Carolina trial procedure. The decision deals with punishment only. Hence in what are now our four capital felonies the trial court should, as in other cases, omit any reference to punishment and charge on the constituent elements of the offenses and instruct the jury under what circumstances a verdict of guilty should be returned. As a result of the Court’s holding in Fwman, a charge on the right of the jury to recommend life imprisonment is now an idle gesture and should be omitted. The recommendation is not authorized until the jury unequivocally finds guilt. A conviction without a jury recommendation now requires life imprisonment and permits nothing more.
After discussing the effect of the 1949 amendment giving the jury power to recommend life imprisonment in our four capital felony cases, the majority opinion concludes: “It is the proviso, and the proviso alone, which creates the discretionary *475 difficulty condemned by the Furman decision; and it is quite clear that Furman strikes down the proviso as violative of the Eighth and Fourteenth Amendments.”
I do not so interpret the effect of Furman . That decision does not strike down the proviso and does not hold that it violates the Eighth and Fourteenth Amendments. Furman holds that after the jury determines guilt and the State law permits either the court or the jury discretion whether the punishment shall be death or life imprisonment, life imprisonment must be imposed. Where discretion is given, Furman holds that a life sentence is valid but strikes down the death penalty. The rationale of the rule seems to be that if discretion between a death sentence or life imprisonment is given either to the court or the jury, the milder punishment must be imposed because in the interpretation of criminal statutes that which is the more favorable to the accused must be accepted.
The fixing of punishment for crime is a legislative function. The General Assembly, in my view, may fix death as the punishment for either or all of the four offenses named in Article XI, Section 2 of the North Carolina Constitution. The Legislature may provide the death penalty or it may provide life imprisonment, but when it undertakes to give an option, the milder judgment must be imposed.
In my opinion, this Court can no more strike out the proviso for life imprisonment than it can strike out the death penalty. Both provisions were inserted in the law by the General Assembly. I am unfamiliar with any authority this Court has to legislate on the subject by repealing either provision.
This further objection to the opinion: After the Court has “eliminated” the right of the jury to recommend life imprisonment in this case, the Court further decrees that capital punishment shall be restored after this Court’s opinion is handed down. This holding seems to be required in order that the Court may dig itself out of the hole it fell into by its holding that Furman “strikes down the proviso as violative of the Eighth and Fourteenth Amendments.” Furman , as I understand it, holds that life imprisonment is valid, but because of the option, Furman strikes down the death penalty.
Since writing the above I have read the well documented opinion of the Chief Justice. I fully concur therein.