I am in accord with the opinion of the majority save as to the assignment of error which appellant bases upon the conduct of counsel for the state in the argument to the jury. In the case ofState v. Stratton, 170 Wn. 666, 17 P.2d 621, relied upon in this case by the majority as supporting the holding that counsel's argument to the effect that, if appellant were sentenced to life imprisonment, he would probably soon be pardoned, does not constitute reversible error, several authorities (hereinafter referred to) were cited which support the decision. It is to be noted, however, that, in the quotations from the authorities cited set forth in the opinion of the court, such arguments were frowned upon.
In the case of State v. Junkins, 147 Iowa 588, 126 N.W. 689, the supreme court of Iowa referred to the argument as "one which would better have been omitted," going on to state that such an argument might in certain cases constitute prejudicial error.
The supreme court of Colorado, in the case of Wechter v.People, 33 Colo. 89, 124 P. 183, remarks, in passing, that such an argument "had nothing whatever to do with any question involved," the court affirming the death penalty imposed because in its opinion the "argument could not in any way have influenced the jury in returning the verdict they did."
In the case of Jacobs v. State, 103 Miss. 622, 60 So. 723, the court stated that an argument advanced by the prosecution in favor of the imposition of the death penalty placed a too harsh and vindictive construction upon the law, the court being of the opinion, however, that it could not be held that the "lurid language of the advocate" contributed to the conviction of the defendant.
Concerning the conduct of the prosecuting attorney *Page 499 complained of in the Stratton case, and after citing the authorities above referred to, this court said:
"The convincing effect of the evidence against the appellant, contributed to substantially by himself, independent of any argument on the part of the prosecuting attorney, clearly justified and manifestly brought about the verdict."
Considering the authorities relied upon by this court in theStratton case and the opinion of this court, it seems to me clear that the holding in that case amounts to no more than that the argument advanced by the prosecuting attorney in favor of the imposition of the death penalty did not constitute reversible error.
In the case at bar, as stated by the majority, it seems clear that the only question which the jury was required to seriously consider was whether or not appellant should be sentenced to life imprisonment or to death. The portion of the argument of counsel for the state of which appellant complains was directed to the vital issue upon which the jury was to pass. Such an argument was absolutely improper. In passing upon the question of the guilt or innocence of one charged with crime, the jury has nothing to do with the punishment which, according to law, must follow a verdict and judgment of guilty. Neither in cases in which the jury is called upon to fix the punishment, as here, should the jury consider possible action of lawfully constituted authority which may at some future date in some manner affect the serving of the sentence which will follow a verdict of guilty. Such an argument as is here complained of is highly inflammatory in its nature. It is a telling argument, carrying a strong appeal and likely to greatly influence at least some of the jurors.
In my opinion, appellant's assignment of error based upon this argument is clearly well taken, and it *Page 500 should be held that appellant did not have that fair trial which is guaranteed by law to every person charged with crime.
Under the doctrine laid down in the case of McDonald v.Davey, 22 Wn. 366, 60 P. 1116, the case of State v.Stratton, supra, has not yet become stare decisis. It seems to me that, in this case, the error, under all the circumstances, is more serious than it was in the former case. The authorities cited in the Stratton case criticize such an argument as that now under discussion, and in its opinion this court did not hold that such an argument is proper, but merely held that the record under consideration failed to disclose reversible error. Under the majority opinion in this case, the argument complained of is held to be without prejudice, and prosecutors will be free to indulge in such appeals at will.
Believing as I do that such an argument is basically wrong, and presents to the jury matters which they have no right to consider and which carry a strong appeal to passion and prejudice, I am constrained to dissent from the conclusion reached by the majority.
BLAKE, J., concurs with BEALS, C.J. *Page 501