People v. Rollins

ANGELLOTTI, C. J.

The defendant was convicted of murder in the first degree for the unlawful killing on July 9, 1918, of one Charles G. Allen and sentenced to death. This is an appeal by him from the judgment and from an order denying a new trial.

No question of insufficiency of evidence is presented. Admittedly the evidence conclusively shows thal; defendant and a companion named Rogers went tó the house occupied by deceased, which was some two or three miles from Knight’s

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Ferry, in pursuance of a plan to there commit the crime of robbery, and that there, in the perpetration of the robbery, they brutally killed the deceased.

The only point made on the appeal is that the trial court erred in allowing challenges interposed by the district attorney to several jurors under subdivision 8 of section 1074 of the Penal Code, which provides as follows: “If the offense charged be punishable with death, the entertaining of such conscientious opinions as would preclude his finding the defendant guilty; in which case he must neither be permitted nor compelled to serve as a juror.” There were several jurors excused by the trial court on¡ challenge by the district attorney on this ground. As to all of them it was clear from their answers to questions on their examination that in no cáse would they agree tó a verdict of guilt carrying the death penalty. As to each of them it may be assumed that the examination showed that he or she would concur in a verdict of guilt which assessed the punishment at imprisonment for life. Our law providing that “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” (Pen. Code, sec. 190), it is claimed that these jurors were not the subjects of challenge under subdivision 8 of section 1074 of the Penal Code, the theory' being that inasmuch as his opinion would not preclude any of them from finding a verdict of guilty, provided the jury would concur in the exercise of the discretionary power to assess the penalty at imprisonment for life, such opinion would not “preclude his finding the defendant guilty.” We do not find that this precise point in regard to the construction of subdivision 8 of section 1074 has ever before been expressly made, but certainly it is opposed to the general understanding of the meaning of the provision and the universal practice thereunder. It has heretofore always been thought that the provision means that if the offense “be punishable by death,” as is true of the offense of murder in the first degree notwithstanding that it is also punishable in the discretion of the jury in the particular case by imprisonment for life, the entertaining by a juror of such conscientious opinions relative to capital punishment as would preclude his rendering in any case a verdict carrying the death penalty brings him within its scope and requires the allowance of a challenge interposed to his serving. (See par