State v. Childs

187 S.E.2d 78, 280 N.C. 576, 1972 N.C. LEXIS 1280

• Court: Supreme Court of North Carolina
• Decided: March 15, 1972
• Docket: 6
• Status: Published

Opinions

MOORE, Justice.

In State v. Atkinson, 275 N.C. 288, 167 S.E. 2d 241 (1969); State v. Hill, 276 N.C. 1, 170 S.E. 2d 885 (1969); State v. Roseboro, 276 N.C. 185, 171 S.E. 2d 886 (1970); State v. Sanders, 276 N.C. 598, 174 S.E. 2d 487 (1970); State v. Williams, 276 N.C. 703, 174 S.E. 2d 503 (1970); and State v. Atkinson, 278 N.C. 168, 179 S.E. 2d 410 (1971), this Court found no error of law which would justify granting the defendants new trials or in vacating or modifying the judgments imposing the death sentence.

In each of these cases petition for writ of certiorari to the Supreme Court of North Carolina was filed in the United States Supreme Court. That Court on 28 June 1971 entered the following order in each case:

“June 28, 1971. On petition for writ of certiorari to the Supreme Court of North Carolina. Motion for leave to proceed in forma pauperis granted. Petition for writ of certiorari granted. Judgment, insofar as it imposes the death sentence, reversed. United States v. Jackson, 390 U.S. 570, 20 L.Ed. 2d 138, 88 S.Ct. 1209 (1968); Pope v. United States, 392 U.S. 651, 20 L.Ed. 2d 1317, 88 S.Ct. 2145 (1968), and case remanded to the Supreme Court of North Carolina for further proceedings. Mr. Justice Black dissents.”

On 23 July 1971 the order and mandate of the United States Supreme Court was issued to the Supreme Court of North Carolina, and this Court upon remand filed opinions on 7 September 1971 in each of those cases. The opinion in State v. Hill, 279 N.C. 371, 183 S.E. 2d 97 (1971), is typical:

“Pursuant to the mandate of the Supreme Court of the United States, this cause is remanded to the Superior Court of Edgecombe County with directions to proceed as follows:

“1. The presiding judge of the Superior Court of Edge-combe County will cause to be served on the defendant, Marie Hill, and on her attorneys 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 order, at which time, in open court, the defendant, Marie Hill, being present in person and being represented by her attorneys, the presiding judge, based on the verdict of guilty of murder in the first degree returned by the jury at the trial at the December 16, 1968 Criminal Session, will pronounce judgment that the defendant, Marie Hill, be imprisoned for life in the State’s prison.

“2. The presiding judge of the Superior Court of Edge-combe County will issue a writ of habeas corpus to the official having custody of the defendant, Marie Hill, to produce her in open court at the time and for the purpose of being present when the judgment imposing life imprisonment is pronounced.

“Remanded for judgment.”

See also State v. Atkinson, 279 N.C. 386, 183 S.E. 2d 106 (1971); State v. Roseboro, 279 N.C. 391, 183 S.E. 2d 108 (1971); State v. Sanders, 279 N.C. 389, 183 S.E. 2d 107 (1971); State v. Williams, 279 N.C. 388, 183 S.E. 2d 106 (1971); State v. Atkinson, 279 N.C. 385, 183 S.E. 2d 105 (1971).

The record in the present case discloses that Judge Martin on 9 August 1971 proceeded exactly as this Court subsequently directed the Superior Court to do in Atkinson, Hill, Roseboro, Sanders, Williams, and Atkinson. Notice was issued by Judge Martin on 30 July 1971 to counsel of record for defendant Childs that on 9 August 1971, ten days from the date of the notice, further proceedings would be conducted in accordance with the mandate of the Supreme Court of the United States. On 9 August 1971 defendant, represented by counsel James E. Ferguson, II, was present in Buncombe Superior Court. While present in open court and represented by counsel, Judge Martin sentenced defendant to life imprisonment in each case pursuant to the mandate of the Supreme Court of the United States, based upon the verdicts of guilty of rape and first degree burglary returned by the jury at defendant’s trial at the November 1965 Criminal Session of Buncombe Superior Court.

In the imposition of these judgments, after notice and hearing, and in accordance with the mandate of the Supreme Court of the United States, we find no error.

No error.