SCHAUER, J. I dissent. I am substantially in accord with the views expressed by Justice Carter but I am impelled to comment on another proposition appearing in the majority opinion which seems to me to more clearly show prejudice and require reversal.
The substantial prejudice, in my view, arises on the trial of the issue of penalty rather than on the issue of guilt. I might agree with Justice Shenk that on the question of guilt the manifest errors may not be prejudicial but since under his opinion (concededly supported in a sense by the many precedents he cites) the substantive statutory law of this state is amended, as it is told to the jury to provide for mandatory imposition of the death penalty in cases of first degree murder [90]wherein there is no substantial showing of mitigating circumstances, whereas the statute as enacted by the Legislature (Pen. Code, § 190) and as construed by this court (People v. Bollinger (1925), 196 Cal. 191, 207 [237 P. 25]) does not make death mandatory in any case* but, rather, in all cases commits the choice of penalties, as between death and life imprisonment, solely to the discretion of the jury trying the case, it is obvious that the issues and the law as to penalty are brought into confusion and errors which may bear on penalty must be scrutinized in such light.
The statute (Pen. Code, § 190) reads, “Every person guilty of murder in the first degree shall suffer death, or confinement in the state prison for life, at the discretion of the jury trying the same ...” Construing that section this court in People v. Bollinger (1925), supra, 196 Cal. 191, 207, said: “We have already quoted the pertinent part of section 190 of the Penal Code. Before the amendment of that section in 1873-74 (Stats. 1873-74, p. 457) it read as follows: ‘Every person guilty of murder in the first degree shall suffer death . . .’ It is clear beyond question that by the language of the amended section —‘Every person guilty of murder in the first degree shall suffer death, or confinement in the state prison for life, at the discretion of the jury trying the same; . . . ’—two changes were made in the law as to the punishment for murder in the first degree—first, that the punishment may be either death or life imprisonment; and, second, that the discretion of determining which punishment shall be imposed was vested in the jury alone. For, as declared in the above† federal cases, the law places no restriction upon the jury’s exercise of such discretion, nor does it attempt to confine its exercise to cases presenting palliating or mitigating circumstances . . . The legislature has ‘ confided the power to affix the punishment within these two alternatives to the absolute discretion of the jury....’ (People v. Leary, 105 Cal. 486, 496 [39 P. 24].) ”
The above-quoted statute, so far as applicable and pertinent in the Bollinger case, has never been amended by the Legislature; likewise, the above-quoted holding of this court in the Bollinger case has never been overruled; on the contrary it has been reiterated. The majority opinion here does not declare that it is overruled. What then is the law ? What [91]instruction should trial courts give on the subject? Are we, the court of last resort in this state, to continue to tolerate the putting to death of defendants on the unauthorized direction to juries that death is mandatory unless mitigating circumstances be shown ? Or would it be error to instruct juries that the law does not fix the penalty in any first degree murder case but in all such cases leaves entirely to the absolute and uncontrolled discretion of the jury, regardless of a total absence of mitigating circumstances, the selection of either of two penalties, death or life imprisonment? Is this court to continue to denounce prosecutors and trial judges (see People v. Smith (1939), 13 Cal.2d 223, 229 [88 P.2d 682]) for asking and giving an instruction, “where a human life is at stake,” which “ interfere [s] with the discharge of that solemn duty by the jury” while at the same time rationalizing its own failure to reverse judgments based on such instruction by the flat assertion that “it is not error”? The whole subject, I think, should be reexamined, not only because we have simultaneously extant two irreconcilably conflicting lines of opinion pronouncements with attending confusion, but because also the one line of pronouncement derives from a case (People v. Welch (1874), 49 Cal. 174) which, whatever may have been its value once, is no longer sound law, the United States Supreme Court in the very recent case (April, 1948) of Andres v. United States, 333 U.S. 740 [68 S.Ct. 880, 92 L.Ed. -], having removed such modicum of respectability as authority which may have persisted in the Welch case after its earlier sapping in Winston v. United States (1898), 172 U.S. 303 [19 S.Ct. 212, 43 L.Ed. 456, 459].
It must be manifest that we have here not a mere procedural error or error in instructions to juries as such errors are commonly understood. The instruction involved here did not merely concern procedural rules governing the jury in their deliberations; it altered the substantive statutory law of the state prescribing the penalty in first degree murder cases. The jury were told: “If the jury in this case should find either defendant guilty of murder in the first degree, and they also shall find the further fact that there are some extenuating circumstances or facts in the ease as to that defendant, it is within their discretion to pronounce such a sentence as will relieve the defendant from the extreme penalty of the law. The Penal Code invests a jury in a criminal case of murder with the discretion, limited to determining [92]which of two punishments shall be inflicted, and that discretion is to be employed only when the jury is satisfied that the lighter penalty should be imposed. If the evidence shows beyond all reasonable doubt either of the defendants to be guilty of murder in the first degree, but does not show some extenuating facts or circumstances, it is the duty of the jury to find a simple verdict of murder in the first degree as to such defendant, and leave with the law the responsibility of fixing the punishment.” (Italics added.)
Counsel for appellant Bowie, in his commendably frank and helpful brief, says, “Though a man be guilty of a heinous offense, there is no exception to the doctrine that respect for the law cannot be inspired by withholding the protection of the law, and no higher duty, no more solemn responsibility, rests upon the courts than to maintain the constitutional and statutory shields planned and inscribed to preserve liberty under law and protect each individual from oppression and wrong, from whatever source it may emanate.” I am in full accord with counsel; the opinion of the majority, in my view, cannot be squared with the quoted statement. Let us look realistically at the majority holding and its basis.
The majority opinion refers to the quoted instruction and says, “The giving of the same or a similar instruction has been assigned as error and ground for reversal in many cases, but in none has it been held to be erroneous.” The opinion then discusses cases “beginning with People v. Jones (1883), 63 Cal. 168, and People v. Brick, 68 Cal. 190 [8 P. 858] ” and running down to People v. Kolez (1944), 23 Cal.2d 670 [145 P.2d 580], and People v. Lindley (1945), 26 Cal.2d 780 [161 P.2d 227], and says, “By this long line of cases it has been held without deviation that the discretion conferred upon the jury by section 190 of the Penal Code should not be arbitrarily exercised for or against a defendant, but should be influenced by the evidence in the case. This application of the term ‘ discretion’ as employed in the code section is akin to that conferred by law on a court, to be exercised not arbitrarily but to be controlled by reason and justice under the facts of the particular case.” But in that “long line . . . without deviation,” is the Bollinger case (and see also the cases it cites) wherein this court said that “It is clear beyond question . . . that the punishment may be either death or life imprisonment; and . . . that the discretion of determining which punishment shall be imposed was [by the 1874 amendment] [93]vested in the jury alone. . . . [T]he law places no restriction upon the jury’s exercise of such discretion, nor does it attempt to confine its exercise to eases presenting palliating or mitigating circumstances ...”
As early as 1898, the United States Supreme Court declared its views upon the effect of a liberalizing amendment to the federal law. In Winston v. United States (1898), 172 U.S. 303 [19 S.Ct. 212, 43 L.Ed. 456], the court said: “These were three cases of indictments . . . for murders committed since the passage of the act of . . . January 15, 1897, chap. 29, by the first section of which, ‘in all cases where the accused is found guilty of the crime of murder . . . the jury may qualify their verdict by adding thereto “without capital punishment ; ’ ’ and whenever the jury shall return a verdict qualified as aforesaid the person convicted shall be sentenced to imprisonment . . . for life.’ 29 Stat. at L. 487 . . .
“ [p. 457 of 43 L.Ed.] The judge instructed the jury . . . ‘That qualification cannot be added unless it be the unanimous conclusion of the twelve men constituting the jury. I think that it should not be added unless it be in cases that commend themselves to the good judgment of the jury, eases that have palliating circumstances which would seem to justify and require it.’ . . .
“ [p. 459 of 43 L.Ed., reversing the trial court] The right to qualify a verdict of guilty, by [p. 460 of L.Ed.] adding the words ‘without capital punishment,’ is thus conferred upon the jury in all cases of murder. The act does not itself prescribe, nor authorize the court to prescribe, any rule defining or circumscribing the exercise of this right; but commits the whole matter of its exercise to the judgment and the consciences of the jury. The authority of the jury to decide that the accused shall not be punished capitally is not limited to cases in which the court, or the jury, is of opinion that there are palliating or mitigating circumstances. But it extends to every case in which, upon a view of the whole evidence, the jury is of opinion that it would not be just or wise to impose capital punishment. How far considerations of age, sex, ignorance, illness, or intoxication, of human passion or weakness, of sympathy or clemency, or the irrevocableness of an executed sentence of death, or an apprehension that explanatory facts may exist which have not been brought to light, or any other consideration whatever, should be allowed weight in deciding the question whether the accused should or [94]should not be capitally punished, is committed by the act of Congress to the sound discretion of the jury, and of the jury alone. ’'
In the recent ease of Andres v. United States (1948), supra, 333 U.S. 740 [68 S.Ct. 880, 92 L.Ed. -], the United States Supreme Court considered again the same statute as was involved in the Winston case. A conviction bearing the death penalty was reversed because the trial court had not clearly instructed that the jury must be unanimous upon the issue of penalty as well as upon that of guilt. The court said: ‘1 [p. 883 of 68 S.Ct.] If a qualified verdict is not returned, the death penalty is mandatory. The Government argues that § 567 properly construed requires that the jury first unanimously decide the guilt of the accused and, then, with the same unanimity decide whether a qualified verdict shall be returned. As the statute requires the death penalty on a verdict of guilty, the contention is that the jury acts unanimously in finding guilt and the law exacts the penalty. It follows, that if all twelve of the jurors cannot agree to add the words ‘without capital punishment,’ the original verdict of guilt stands and the punishment of death must be imposed. The petitioner contends that § 567 must be construed to require unanimity in respect to both guilt and punishment before a verdict can be returned. It follows that one juror can prevent a verdict which requires the death penalty, although there is unanimity in finding the accused guilty of murder in the first degree. . . . [p. 884] Unanimity in jury verdicts is required where the Sixth and Seventh Amendments apply. In criminal cases this requirement of unanimity extends to all issues—character or degree of the crime, guilt and punishment—which are left to the jury. A verdict embodies in a single finding the conclusions by the jury upon all the questions submitted to it. We do not think that the grant of authority to the jury by § 567 to qualify their verdict permits a procedure whereby a unanimous jury must first find guilt and then a unanimous jury alleviate its rigor. . . . This construction is more consonant with the general humanitarian purpose of the statute and the history of the Anglo-American jury system than that presented by the Government. . . . [p. 885] It seems to us, . . . that where a jury is told first that their verdict must be unanimous, and later, in response to a question directed to the particular problem of qualified verdicts, that if their verdict is first-degree murder and they [95]desire to qualify it, they must be unanimous in so doing, the jury might reasonably conclude that, if they cannot all agree to grant mercy, the verdict of guilt must stand unqualified. That reasonable men might derive a meaning from the instructions given other than the proper meaning of § 567 is probable. In death eases doubts such as those presented here should be resolved in favor of the accused.”
The substantive law of California enacted by the Legislature, as above shown, provides that the penalty for murder of the first degree shall be “death, or confinement in the state prison for life, at the discretion of the jury” trying the case; the substantive law as “construed” by the majority opinion is that the penalty for murder of the first degree shall he death “unless some extenuating facts or circumstances” are shown, in which event, hut only in which event, the jury may reduce the penalty to life imprisonment. Manifestly, such judicial “construction” of a statute, the language of which the same court admits is “clear beyond question” to the contrary, all to the end of sustaining death sentences in cases not authorized either by the letter or the spirit of our statute, is also directly contrary to the policy declared by the United States Supreme Court in the Andres case, as above quoted.
The majority opinion here, like that in People v. Kolez (1944), supra, 23 Cal.2d 670, and other cases subsequent to Bollinger and cited by the majority, does not squarely overrule the Bollinger holding in any respect; it does not squarely declare that it would be error against the state to instruct the jury in accord with the language of the statute or to refuse to give the instruction which here was given. As said by Justice Traynor, in his dissent to Kolez (p. 674 of 23 Cal.2d), “For over fifty years precedents have accumulated condemning such instructions, even though the court has fallen short of reversing judgments because of them.” Likewise as pointed out by Justice Traynor in the same dissent, this court has repeatedly chided prosecuting attorneys for requesting and trial courts for giving the instruction in question. In People v. Smith (1939), 13 Cal.2d 223, 229 [88 P.2d 682], the court quoted from the Bollinger case the statement “And considering the numerous occasions this court has held that section 190 . . . confers on the jury alone the discretion of determining the punishment in eases of guilt of murder in the first degree, trial courts, especially where a human life is at stake, [96]should not interfere with the discharge of that solemn duty by the jury.” The Smith case opinion then proceeds: “Just why this and similar, warnings by this court have not been observed by prosecuting officers and trial courts, we are at a loss to understand.” It seems to me that the explanation of that which the court then was “at a loss to understand” has become all too clear: The denounced practice has been continued because this court has tolerated it and the evil instruction will continue in use until this court finally enforces what it has so often recognized to be the law.
Obviously, the inconsistencies above disclosed leave the law in confusion. Why are they not cleared away? What is the answer of the majority to the questions suggested ? To make the bald assertion that “it is not error” to instruct a jury that the death penalty is mandatory under some circumstances which well may be found, when the statute makes it “clear beyond question” that such penalty is only discretionary in every ease, is pure legalism to which no amount of repetition can add moral verity.
The majority opinion fails to give the full history of the genesis of the error which it propagates; it goes back only as far as the Jones case (1883), 63 Cal. 168, and the Brick case (1885), 68 Cal. 190 [8 P. 858], Actually, the “error” has earlier origin; in People v. Welch (1874), 49 Cal. 174, its basis was laid. That case arose shortly after enactment of the previously noted 1874 amendment to section 190 of the Penal Code. Prior to that amendment the sole punishment for murder of the first degree was death; the amendment created the changes discussed in the Bollinger case; i. e., it provided that the punishment may be either death or life imprisonment and that the responsibility of determining which punishment shall be imposed was vested in the jury’s “absolute discretion.” But in the Welch case the jury returned a verdict reading, “We, the jurors, do find the defendant Welch guilty of murder in the first degree, as charged in the indictment.” The verdict was absolutely silent as to the penalty to be imposed and the jury had not been instructed that a verdict in the form quoted would mean the death penalty. (The 1874 amendment, although it had been enacted, may not have been in effect at the time of trial; it was certainly in effect when the case was determined on appeal.) The question which the court actually considered and determined was whether the jury had to determine the penalty at all.
[97]Upon the facts above epitomized the court held (p. 178 of 49 Cal.): “Section 190 of the Penal Code, as amended by the Act of March 28,1874, reads: ‘Every person guilty of murder in the first degree shall suffer death, or confinement in the State Prison for life, at the discretion of the jury trying the same . . [p. 179] The nature of that discretion is to be ascertained by reference to the language of the statute. In Virginia it was held, that in an action qui tam the verdict should fix the amount of damages. (Scott’s case, 5 Grat. 6,797.) Also, that where the duty was imposed on the jury of fixing the term of imprisonment, and the verdict did not ascertain such term, it should be set aside. (Mills’ case, 7 Leigh, 751.)
“But the Act amending Section 190 of the Penal Code does not give the general discretion which juries exercised under the Virginia statute. Here their discretion is limited, at most, to determining which of two punishments shall be inflicted; and we think that it is still more restricted, and is to be employed only where the jury is satisfied that the lighter penalty should be imposed. It would seem that, in view of the apparently growing disinclination to find verdicts of murder in the first degree, when the necessary result is capital punishment, and the existence of a feeling that there were nicer distinctions in the degree of malignancy exhibited in murders than were made by the letter of the statute definitions, the Legislature intended to give to the jury, when the verdict was murder of the first degree, the power of relieving the defendant of the extreme penalty, and of substituting another punishment in its stead. A verdict fixing the punishment at imprisonment for life is somewhat analogous to the French verdict, ‘Guilty with extenuating circumstances,’ and is the equivalent of the Louisiana verdict, ‘ Guilty without capital punishment, ’ held good in State v. Rohfrischt (12 La.An. 382); and authorized by the statute which provides, ‘In all cases where the punishment denounced by law is death, it shall be lawful for the jury to qualify their verdict by adding thereto, “without capital punishment.” And whenever the jury shall return a verdict qualified as aforesaid, the person convicted shall be sentenced to hard labor for life in the State Penitentiary. ’ (Rev.Stat. of La. p. 163.)
“This view of the question is not unsustained by authority in California. By the Act of April 22, 1851, it was enacted: [98]‘Every person who shall feloniously steal, etc., shall be deemed guilty of grand larceny, and upon conviction thereof, shall be punished by imprisonment in the State prison for any term, not less than one year nor more than ten years, or by death, in the discretion of the jury.’ 'And in The People v. Littlefield (5 Cal. 355), this Court said: ‘It would seem, from the language of the Act, that it was the intention of the Legislature that the jury should only assess the punishment when, in the exercise of their discretion, they thought that the defendant deserved the punishment of death. If they did not agree to such punishment, upon finding the defendant guilty, then they should find a general verdict.’ In that case, it was evidently considered that the object of the Legislature (actuated by the circumstance that certain kinds of property—as live stock—were peculiarly exposed, in portions of this State, or by some other motive equally just) was to confer upon the juries the power of affixing, at their discretion, a more severe penalty than had previously been imposed on those guilty of grand larceny. By parity of reasoning we may say, in view of the former punishment for the crime of murder of the first degree, and the history of legislation on the subject in this State and elsewhere, that it was the purpose of the Legislature (by the amendment of section 190) to permit the jury, in a case where the facts proved brought the crime of the defendant within the statutory definition of the higher offense, but they believed the punishment of death too severe, to declare that he should be imprisoned for life. We think, therefore, the statute should be construed as if it read: ‘Shall suffer death, or (in the discretion of the jury) imprisonment in the State prison for life.’ . . . [p. 185, on denial of petition for rehearing] It results from the construction we have given to Section 190 of the Penal Code (as amended) that a jury may—in the exercise of its discretion—declare that a defendant guilty of murder of the first degree shall be punished by confinement in the State prison for life. If a jury shall agree that a defendant is guilty of murder of the first degree, but cannot agree that the punishment shall be imprisonment for life, or shall not declare that the punishment shall be such imprisonment, it will be the duty of the Court to pronounce judgment of death. The jury need not declare that death shall be inflicted—in cases where they cannot agree on imprisonment—since, if the verdict is silent in respect to the penalty, the Court must sentence the defendant to death.”
[99]In my view no part of the Welch opinion above quoted is sound law; to me neither age nor repetition has hallowed the speciousness of the reasoning above quoted. There is nothing in the statute which authorizes holding that the jurors are not required to agree on the penalty just as they must agree on the guilt; neither is there aught in the statute which makes death mandatory unless evidence of mitigating circumstances is produced and the jury so recommend. The responsibility for making the selection of punishments is placed squarely on the jury by the Legislature and the courts should leave it there. But in People v. Brick (1885), 68 Cal. 190 [8 P. 858], an instruction was given which is almost verbatim (and in substance identical with) that which was given here and quoted above. Belying upon the Welch case the court said (p. 192): “There is in this instruction no error. The discretion given the jury by the statute is not an arbitrary one, but is to be employed, as said by this court in People v. Welch, 49 Cal. 179, ‘only where the jury is satisfied that the lighter penalty should be imposed.’ Of course, the jury could only be satisfied by the facts and circumstances of the case.” From the union of the errors of Welch and Brick* has come, and still persists, that grievous error which still plagues us. Our continued tolerance of it, particularly in view of the holding of the United States Supreme Court in the Andres case, supra (333 U.S. 740), is even more indefensible than was its genesis.
To Abraham Lincoln is ascribed the declaration, “I shall try to correct errors where shown to be errors; and I shall adopt new views as fast as they shall appear to be true views. ” That principle seems to me to be a good one, not alone for the chief executive of a great nation but also for a justice of a court of last resort. I think it has been shown that we have erred; at the very least that we shall err if we persist, after Andres, in adhering to the holdings of Welch and Brick; I think the true view is that which in Bollinger we said was “clear beyond question” and that it is our duty to enforce the true view.
As is pointed out in the majority opinion this court cannot reduce the penalty without disturbing the judgment of eon[100]viction; under the holding of the majority the jury in fixing the penalty are bound to exercise legal discretion; i. e., they must exercise their discretion only upon evidence. Certainly it should follow that they must receive and consider all evidence pertinent to that issue. It is apparent, therefore, that errors which prejudicially affect the defendant insofar as the trial as to penalty is concerned must result in a reversal of the judgment. Here the cumulative effect of the many errors which strike directly at the issue of penalty is so substantial that I cannot but conclude that the defendants have been prejudiced.
Hence, even though the majority persist in perpetuating the 1874 rule for mandatory death penalty in the absence of mitigating evidence, such ruling here does not justify affirmance. Eather, does that ruling, and the instruction given, aggravate to prejudicial moment the other errors noted.
The judgment should be reversed and a new trial had.
Carter, J., and Traynor, J., concurred.
Appellants’ petition for a rehearing was denied July 8, 1948. Carter, J., Traynor, J., and Schauer, J., voted for a rehearing, and the following opinions were then filed:
We are not discussing section 4500 of the Penal Code.'
Winston v. United States, Strather v. United States, and Smith v. United States (1898), 172 U.S. 303 [19 S.Ct. 212, 43 L.Ed. 456].
People v. Jones (1883), 63 Cal. 168, is also a contributor, an apparently somewhat similar instruction having been there approved, but since the exact language of the instruction is not set forth it is not charged with full culpability.