Higgins, J.
The directive from the Supreme Court of the United States requires us to reconsider our former decision upholding the jury’s verdicts and the Court’s sentences. State v. Spence and Williams, 271 N.C. 23, 155 S.E. 2d 802. As disclosed by the record, the defendants had objected to the jury on the ground veniremen were successfully challenged by the prosecution because of their conscientious objections to capital punishment. The directive requires us to determine whether the method employed in selecting the jury met the standards set forth in Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770.
The record of the trial contains the voir dire examinations of 11 veniremen rejected because of their varying degrees of opposition to capital punishment. We deem it unnecessary to attempt any analysis of these divergent views because of this stipulation in the record:
“A total of 150 veniremen were examined on voir dire; 79 of those examined were successfully challenged for cause by the State because of their stated opposition to capital punishment.”
The trial jury was selected in the manner approved by North Carolina case law. The basic concept has been that each party to a trial have opportunity to present his cause to a fair and unbiased jury. He may challenge for cause any juror who is prejudiced against him. His right is not to select a juror prejudiced in his favor, but to reject one prejudiced against him. State v. Peele, 274 N.C. 106, 161 S.E. 2d 568; State v. Spence, 271 N.C. 23, 155 S.E. 2d 802; State v. Bumper (erroneously designated Bumpers), 270 N.C. 521, 155 S.E. 2d 173 (reversed by the Supreme Court on other grounds); State v. Childs, 269 N.C. 307, 152 S.E. 2d 453; State v. Arnold, 258 N.C. 563, 129 S.E. 2d 229, and cases therein cited. The method of selection likewise appears not to have been in violation of federal rules.
[539]*539According to the Federal Court decisions “the function of challenge is not only to eliminate extremes of partiality on both sides but to assure the parties that the jury before whom they try the case will decide on the basis of the evidence placed before them and not otherwise.” The purpose of challenge should be to guarantee “not only freedom from any bias against the accused, but also from any prejudice against his prosecution. Between him and the State the scales are to be evenly held.” Swain v. Alabama, 380 U.S. 202; Tuberville v. United States, 303 F. 2d 411 (cert. den. 370 U.S. 946); Logan v. United States, 144 U.S. 263; Hayes v. Missouri, 120 U.S. 68.
Did the trial court commit error by permitting the prosecution to remove from the venire those who held the views on capital punishment disclosed by the record? In answering this question, the directive requires us to apply the Witherspoon tests.
In 1960 Witherspoon was tried in Cooke County, Illinois for murder. The jury found him guilty and fixed his punishment at death. The jury was selected in accordance with the Illinois statute which provided:
“In trials for murder it shall be a cause for challenge of any juror who shall, on being examined, state that he has conscientious scruples against capital punishment, or that he is opposed to the same.”
The Supreme Court of Illinois denied Witherspoon’s application for a new trial upon his stated ground that the jury was stacked against him by permitting the State to challenge for cause all who expressed opposition to or scruples against capital punishment.
Witherspoon’s application for certiorari was allowed by the Supreme Court of the United States. The opinion was filed July 3, 1968. Because of the impact the decision will have on trials for capital felonies in this State, we quote extensively from the opinion and the footnotes thereto:
“The issue before us is a narrow one. It does not involve the right of the prosecution to challenge for cause those prospective jurors who state that their reservations about capital punishment would prevent them from making an impartial decision as to the defendant’s guilt. Nor does it involve the State’s assertion of a right to exclude from the jury in a capital case those who say that they could never vote to impose the death penalty or that they would refuse even to consider its imposition in the case before them. For the State of Illinois did not stop there, but authorized the prosecution to exclude as well all who [540]*540said that they were opposed to capital punishment and all who-indicated that they had conscientious scruples against inflicting it.
* * *
If the State had excluded only those prospective jurors who stated in advance of trial that they would not even consider returning a verdict of death, it could argue that the resulting jury was simply ‘neutral’ with respect to penalty. But when it swept from the jury all who expressed conscientious or religious scruples against capital punishment and all who opposed it in principle, the State crossed the line of neutrality. . . .
# -K*
A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror. But a jury from which all such men have been excluded cannot perform the task demanded of it. . . .”
Attached to the Court’s opinion are the following footnotes:
“. . . The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge ini the course of the proceedings. . . .
We repeat, however, that nothing we say today bears upon the' power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that-their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt. Nor does the decision in this case affect the validity of any sentence-other than one of death. Nor, finally, does today’s holding render invalid the conviction, as opposed to the sentence, in this or any other case.
We have considered the suggestion, advanced in an amicus curice brief filed by 24 States on behalf of Illinois, that we should ‘give prospective application only to any new constitu[541]
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Higgins, J.
The directive from the Supreme Court of the United States requires us to reconsider our former decision upholding the jury’s verdicts and the Court’s sentences. State v. Spence and Williams, 271 N.C. 23, 155 S.E. 2d 802. As disclosed by the record, the defendants had objected to the jury on the ground veniremen were successfully challenged by the prosecution because of their conscientious objections to capital punishment. The directive requires us to determine whether the method employed in selecting the jury met the standards set forth in Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770.
The record of the trial contains the voir dire examinations of 11 veniremen rejected because of their varying degrees of opposition to capital punishment. We deem it unnecessary to attempt any analysis of these divergent views because of this stipulation in the record:
“A total of 150 veniremen were examined on voir dire; 79 of those examined were successfully challenged for cause by the State because of their stated opposition to capital punishment.”
The trial jury was selected in the manner approved by North Carolina case law. The basic concept has been that each party to a trial have opportunity to present his cause to a fair and unbiased jury. He may challenge for cause any juror who is prejudiced against him. His right is not to select a juror prejudiced in his favor, but to reject one prejudiced against him. State v. Peele, 274 N.C. 106, 161 S.E. 2d 568; State v. Spence, 271 N.C. 23, 155 S.E. 2d 802; State v. Bumper (erroneously designated Bumpers), 270 N.C. 521, 155 S.E. 2d 173 (reversed by the Supreme Court on other grounds); State v. Childs, 269 N.C. 307, 152 S.E. 2d 453; State v. Arnold, 258 N.C. 563, 129 S.E. 2d 229, and cases therein cited. The method of selection likewise appears not to have been in violation of federal rules.
[539]*539According to the Federal Court decisions “the function of challenge is not only to eliminate extremes of partiality on both sides but to assure the parties that the jury before whom they try the case will decide on the basis of the evidence placed before them and not otherwise.” The purpose of challenge should be to guarantee “not only freedom from any bias against the accused, but also from any prejudice against his prosecution. Between him and the State the scales are to be evenly held.” Swain v. Alabama, 380 U.S. 202; Tuberville v. United States, 303 F. 2d 411 (cert. den. 370 U.S. 946); Logan v. United States, 144 U.S. 263; Hayes v. Missouri, 120 U.S. 68.
Did the trial court commit error by permitting the prosecution to remove from the venire those who held the views on capital punishment disclosed by the record? In answering this question, the directive requires us to apply the Witherspoon tests.
In 1960 Witherspoon was tried in Cooke County, Illinois for murder. The jury found him guilty and fixed his punishment at death. The jury was selected in accordance with the Illinois statute which provided:
“In trials for murder it shall be a cause for challenge of any juror who shall, on being examined, state that he has conscientious scruples against capital punishment, or that he is opposed to the same.”
The Supreme Court of Illinois denied Witherspoon’s application for a new trial upon his stated ground that the jury was stacked against him by permitting the State to challenge for cause all who expressed opposition to or scruples against capital punishment.
Witherspoon’s application for certiorari was allowed by the Supreme Court of the United States. The opinion was filed July 3, 1968. Because of the impact the decision will have on trials for capital felonies in this State, we quote extensively from the opinion and the footnotes thereto:
“The issue before us is a narrow one. It does not involve the right of the prosecution to challenge for cause those prospective jurors who state that their reservations about capital punishment would prevent them from making an impartial decision as to the defendant’s guilt. Nor does it involve the State’s assertion of a right to exclude from the jury in a capital case those who say that they could never vote to impose the death penalty or that they would refuse even to consider its imposition in the case before them. For the State of Illinois did not stop there, but authorized the prosecution to exclude as well all who [540]*540said that they were opposed to capital punishment and all who-indicated that they had conscientious scruples against inflicting it.
* * *
If the State had excluded only those prospective jurors who stated in advance of trial that they would not even consider returning a verdict of death, it could argue that the resulting jury was simply ‘neutral’ with respect to penalty. But when it swept from the jury all who expressed conscientious or religious scruples against capital punishment and all who opposed it in principle, the State crossed the line of neutrality. . . .
# -K*
A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror. But a jury from which all such men have been excluded cannot perform the task demanded of it. . . .”
Attached to the Court’s opinion are the following footnotes:
“. . . The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge ini the course of the proceedings. . . .
We repeat, however, that nothing we say today bears upon the' power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that-their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt. Nor does the decision in this case affect the validity of any sentence-other than one of death. Nor, finally, does today’s holding render invalid the conviction, as opposed to the sentence, in this or any other case.
We have considered the suggestion, advanced in an amicus curice brief filed by 24 States on behalf of Illinois, that we should ‘give prospective application only to any new constitu[541]*541tional ruling in this area,’ particularly since a dictum in an 1892 decision of this Court approved the practice of challenging for cause those jurors who expressed ‘conscientious scruples in regard to the infliction of the death penalty for crime.’ Logan v. United States, 144 U.S. 263, 298. But we think it clear, Logan notwithstanding, that the jury-selection standards employed here necessarily undermined ‘the very integrity of the . . . process’ that decided the petitioner’s fate, see Linkletter v. Walker, 381 U.S. 618, 639, and we have concluded that neither the reliance of law enforcement officials, cf. Tehan v. Shott, 382 U.S. 406, 417; Johnson v. New Jersey, 384 U.S. 719, 731, nor the impact of a retroactive holding on the administration of justice, cf. Stovall v. Denno, 388 U.S. 293, 300, warrants a decision against the fully retroactive application of the holding we announce today.”
The Court concludes:
“. . . Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. . . .”
The stipulation and certain of the voir dire examinations force us to conclude that veniremen were successfully challenged by the prosecution upon the ground that they were opposed to capital punishment and had religious or conscientious scruples against its infliction. A jury so selected did not meet the test laid down in Witherspoon. In its “light” the defendants were entitled to have their challenge to the jury sustained. The challenge was made in due time and was disallowed. The defendants are entitled to have the verdicts set aside.
We have considered and rejected the suggestions that: (1) under Witherspoon the verdicts should not be set aside; (2) only the death penalty should be eliminated; and (3) the cases should be remanded to the Superior Court of Guilford County for the imposition of life imprisonment sentences.
The Supreme Court of the United States has set aside the judgments. We are directed to pass on the legal composition of the trial jury. The indictments for first degree murder, and the defendants’ pleas of not guilty, are not disturbed by Witherspoon or any other authority. If the jury verdicts ■ — • guilty as charged — are permitted to stand, the only judgment which the Superior Court has authority to enter is a judgment of death. Having concluded the trial [542]*542jury was not selected in accordance with the defendants’ constitutional rights, as set out in Witherspoon, we conclude the verdicts cannot stand. They must be set aside. When that is done, the defendants stand again before the court charged with murder in the first degree. Their pleas of not guilty raise jury issues. Neither the State nor Federal Courts are authorized to enter verdicts. Only a jury may return a verdict. Duncan v. Louisiana, 391 U.S. 145, 20 L. Ed. 2d 491.
This Court has already held, in State v. Peele, supra, that United States v. Jackson, 390 U.S. 570, 20 L. Ed. 2d 138 (decided April 8, 1968) is not authority for holding capital punishment is abolished altogether in North Carolina. The Court said: “Jackson is not authority for holding the death penalty in North Carolina may not be imposed under any circumstances for the crime of rape.” The concurring opinion in Peele states: “. . . This appeal does not present for decision whether United States v. Jackson, supra, invalidates the death penalty under present North Carolina statutes.” It is now argued in this case that the quoted sentence in Peele was dictum. Unless the question was directly presented for decision in Peele, the dictum contention is correct. If, on the other hand, it was presented and necessary, to a decision, the dictum contention is not correct. Peele was indicted for the rape of a female child 10 years of age. Upon arraignment, and before plea, defense counsel filed this motion.
“The State has attempted to indict the defendant for the capital offense of rape under G.S. 14-21, which offense, upon conviction, is punishable by death except that should the defendant enter a plea of guilty under G.S. 15-162.1 and have such plea accepted by the State . . . defendant could thereby avoid the risk of a death penalty . . . that both G.S. 14-21 and G.S. 15-162.1 are unconstitutional.
4. That G.S. 15-162 by itself or construed together with G.S. 15-162.1 and G.S. 14-21 is unconstitutional for the reason that G.S. 15-162 compels an affirmative response if the risk of the death penalty for maintaining one’s silence upon arraignment is to be avoided.
Wherbfoee, defendant prays that the indictment be quashed for the reasons set forth above.”
The Court denied the motion to quash on all grounds alleged. The defendant took Exceptions 2, 3 and 4. The defendant’s brief listed as the first question involved: “1. Did the Court err in failing to allow defendant’s motion to quash the indictment for the rea[543]*543son that G.S. 14-21 is unconstitutional as shown by Exception No. 4, R. 20?” Three other questions were discussed in the brief. One-half of the defendant’s brief in the Peele case was devoted to the discussion of Question No. 1 and the basis of the discussion was the ruling of the Supreme Court of the United States in Jackson. It must be remembered that in order to proceed to judgment in a criminal case, the trial court must acquire jurisdiction of the offense and of the offender. Jurisdiction of the offense is acquired by formal accusation (warrant or indictment). Jurisdiction of the offender is acquired by arrest and arraignment before the court. If the defendant, upon arraignment, challenges the validity of the indictment as Peele did, the first inquiry of the court must relate to the validity of the indictment. It must be found to be valid before the court may proceed further. The defendant Peele argued the ruling in Jackson abolished capital punishment under North Carolina statutes and that the bill charging the capital offense should be quashed on that ground. So, the question was directly presented and decided in Peele.
The contention is again advanced that capital punishment is abolished in North Carolina, a contention which was rejected in
In the present review, we are ordered to examine the method of jury selection. The directive required us to reconsider in the light of Witherspoon. We go out of our way if we attempt to go beyond that directive. We have the right to assume, and act on the assumption, that our reconsideration should begin and end on the question of jury selection, which was the sole question involved in Witherspoon. The decision in Jackson was two months old when we were ordered to reconsider Spence and Williams. If the high court intended for us to review the case in the light of Jackson, the directive should and no doubt would have included Jackson along with Witherspoon. Peele.
We have concluded the jury which convicted Spence and Williams was not selected according to their constitutional rights as set forth in Witherspoon. Although the defendants are indicted for having committed a most horrible crime, they cannot be executed and should not be imprisoned for that crime until a jury, selected in accordance with their constitutional rights, has convicted them. The State has waived neither its right nor its duty to require them to answer the charge of murder in the first degree. To that end we order a
New trial.