#### STATE OF NORTH CAROLINA v. DEE D. ATKINSON

No. 101

(Filed 7 September 1971)

Rape § 7; Criminal Law § 135— rape — death sentence — remand for sentence of life imprisonment

Pursuant to the mandate of the Supreme Court of the United States, a rape case in which the defendant received the death sentence is remanded to the superior court with direction that the defendant be sentenced to life imprisonment in the State’s prison.

Justices Higgins and Lake dissenting.

On remand from the Supreme Court of the United States.

HUSKINS, Justice.

At the trial of defendant, Dee D. Atkinson, at August, 1970 Criminal Session of the Superior Court of JOHNSTON County, North Carolina, the jury returned a verdict of guilty of rape and thereupon the court pronounced judgment which imposed a death sentence. Upon defendant’s appeal, this Court found “No error” in the trial and judgment, 278 N.C. 168, 179 S.E. 2d 410. On June 28, 1971, upon its consideration of defendant’s petition for writ of certiorari, the Supreme Court of the United States entered the following order: “The petition for writ of certiorari is granted. The judgment, insofar as it imposes the death sentence, is reversed, United States v. Jackson, 390 U.S. 570 (1968), Pope v. United States, 392 U.S. 651 (1968), and the case is remanded for further proceedings.” Dee D. Atkinson, Petitioner v. North Carolina, 403 U.S. 948, 29 L. Ed. 2d 861, 91 S.Ct. 2292 (1971).

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

1. The presiding judge of the Superior Court of Johnston County will cause to be served on the defendant, Dee D. Atkinson, and on his 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, Dee D. Atkinson, being present in person and being represented by his attorneys, the presiding judge, based on the verdict of guilty of rape returned by the jury at *386the trial at the August, 1970 Criminal Session, will pronounce judgment that the defendant, Dee D. Atkinson, be imprisoned for life in the State’s prison.

2. The presiding judge of the Superior Court of Johnston County will issue a writ of habeas corpus to the official having custody of the defendant, Dee D. Atkinson, to produce him in open court at the time and for the purpose of being present when the judgment imposing life imprisonment is pronounced.

Remanded for judgment.

Higgins and Lake, Justices, dissent for the reasons stated in their separate dissenting opinions filed this day in State v. Hill, ante 371, 183 S.E. 2d 97 (1971).