For error in the course of the trial of this case in Superior Court as revealed on the face of the case on appeal indicated by exceptions Numbers 1 to 6, both inclusive, on which assignments of error of like numbers are predicated, this Court is, in the light of the statute G.S. 14-17 -as interpreted and applied in repeated decisions of the Court, impelled to order a new trial.
In this connection the statute, G.S. 14-17, as amended by the General Assembly of North Carolina, Section 1 of Chapter 299 of 1949 Session Laws of North Carolina, provides that “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, rape, robbery, burglary or other felony, shall be deemed to be murdier 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” etc.
The proviso embraces the 1949 amendment, and has been the subject of discussion in several cases— S. v. McMillan, 233 N.C. 630, 65 S.E. 2d, 212; S. v. Marsh, 234 N.C. 101, 66 S.E. 2d 684; S. v. Simmons, 234 N.C. 290, 66 S.E. 2d 897; s.c. 236 N.C. 340, 72 S.E. 2d 743; S. v. Dockery, 238 N.C. 222, 77 S.E. 2d 664; S. v. Conner, 241 N.C. 468, 85 S.E. 2d 584; S. v. Carter, 243 N.C. 106, 89 S.E. 2d 789; S. v. Adams, 243 N.C. 290, 90 S.E. 2d 383; S. v. Cook, 245 N.C. 610, 96 S.E. 2d 842; S. v. Denny, 249 N.C. 113, 105 S.E. 2d 446; S. v. Oakes, 249 N.C. 282, 106 S.E. 2d 206; S. v. Pugh, 250 N.C. 278, 108 S.E. 2d 649, and perhaps others.
As interpreted in the McMillan case, above cited, decided in May 1951, this Court, speaking of the proviso embraced in the 1949 amendment, had this to say: “The language of this amendment stands in bold relief. It is plain and free from ambiguity and expresses a single, definite and sensible meaning,— a meaning which under the settled law of this State is conclusively presumed to be the one intended by the Legislature.” (citing cases) And, continuing, the Court declared: “It is patent that the sole purpose of the act is to give to the jury in all cases where a verdict of guilty of murder in the first degree shall have been reached, the right to recommend that the punishment for the crime shall be imprisonment for life in the State’s prison * * * No conditions are attached to, and no qualifications or limitations are imposed upon, the right of the jury to so recommend. It is un*5bridled discretionary right. And it is incumbent upon the court to so instruct the jury. In this, the defendant has a substantive right. Therefore, any instruction, charge or .suggestion as to the causes for which the jury could or ought to recommend is error sufficient to set aside a verdict where no recommendation is made. And new trials have been granted from time to time in case after case as above enumerated— for violations of the terms of the proviso in G.S. 14-17.
Applying these principles to the subj ect matter of exceptions Numbers 1 to 6, both inclusive, hereinabove set forth, it is manifest that the terms of the proviso set out in G.S. 14-17 have been violated and the rights of defendant impinged. True the trial judge did what he could to counteract the harmful result of the remarks of the Solicitor. But as stated by this Court in S. v. Canipe, 240 N.C. 60, 81 S.E. 2d 173, in opinion by Ervin, J., when such occurs, “it is virtually impossible for the judge to remove the prejudicial impression from the minds of the trial jurors by anything which he may afterwards say to them by way of atonement or explanation,” citing cases.
Where, however, the harm is done the court may not eradicate the wrong. Such is the case in hand in respect to the first assignment of error. Moreover it is seen that in regard to the matters to which assignments of error Nos. 2 to 6, both inclusive, relate, the trial court overruled the objections of defendant and permitted the Solicitor to tell the prospective jurors the State was seeking a verdict of guilty of murder in the first degree without recommendation for life imprisonment, — ■ a manifest violation of the provisions of the proviso in G.S. 14-17.
“Every person charged with crime has an absolute right to a fair trial. By this is meant that he is entitled to a trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm * * The responsibility for enforcing this right necessarily rests upon the trial judge.” S. v. Carter, 233 N.C. 581, 65 S.E. 2d 9.
Furthermore defendant assigned as error the refusal of the trial court to instruct the jury concerning the law of manslaughter and 'the circumstances in the case under which the jury would be permitted to return a verdict of manslaughter. Assignment of error # 23. Exception No. 45. In respect to this contention this Court is of opinion that the fact that defendant and his wife were together in the woods 10 minutes (R. p. 32), as the State’s evidence tends to show, before any shots were heard is a circumstance that requires a charge on manslaughter.
*6The evidence discloses that there were no eye witnesses to the shooting, and no one of the State’s witnesses knows what actually took place on this occasion. It rests in speculation.
The matters to which other assignments of error relate may not recur on a new trial. Hence it is not deemed necessary that they be treated on this appeal.
There must be a
New trial.
Higgins, J., not sitting.