(concurring in part and dissenting in part):
I join in Judge Miller’s opinion which concurs in the affirmance of the convictions appealed from but dissents as to the disposition of the issue of sentence. In common with most, if not all, members of the court, I have grave reservations concerning capital punishment; but we are here to uphold the law, not to engage in sophisticated nitpicking in order to implement our disagreement with the decision Congress has made on capital punishment. Nor is it our function, as a majority of the court has blandly done — for varying reasons — to take over the President’s powers of executive clemency.
I
The principal opinion — for as Judge Miller has stated there is no majority opinion — quarrels with the District Court’s scrupulously fair and correct charge to the jury relating to the necessity for a unanimous verdict. Judge Fahy quotes but one part of the charge, and if that had been all the jury was told there would be a plausible basis for his conclusion. But it is not the whole story; elsewhere the District Judge had dealt explicitly with the punishment aspect, reading the first degree murder statute to the jurors including the direction to inform the court of lack of agreement on punishment. Then the Judge charged the jury as follows:
“Under this law, if you return a verdict of guilty * * * and do *112not add any recommendation to your verdict or do not say that you are unable to agree on the penalty, the defendants’ sentences must be death.
“Similarly if by a unanimous vote you recommend a sentence of life imprisonment, this will be the sentence the defendants would receive. If you are unable to unanimously agree on recommending life imprisonment, then you must so inform the Court. It would then become the duty of the Court to impose sentence, either death or life imprisonment.
“It is your duty to return a verdict in this case, and I charge you that you should deliberate fully and completely in regard to punishment. You must each reach an individual decision in this regard. This decision includes the alternatives, death by electrocution or life imprisonment.
“* * * [W]hen all your individual views add up to less than a unanimous decision, then only in such event, the duty of fixing sentence falls upon the Court.
“In summary, if you find the defendants guilty of first degree murder in either the first or second count, you may return a verdict of guilty as charged which will require the imposition of the death penalty or guilty as charged with recommendation of life imprisonment; and if you are unable to agree or reach a unanimous decision as to either of these, it will then be your duty to so inform the Court.’’
(Emphasis added.) The passage just quoted was prefaced by the following remark, which preceded the reading of the statute itself to the jury: “Now, as to punishment: In the event that you find the defendants guilty of first-degree murder either under Count 1 or Count 2, it then becomes your duty to deliberate on the punishment which will be imposed.” (Emphasis added.)
I suggest that this preface and the charge itself clearly separate the decision on guilt from the penalty determination. And the individual nature of the assessment of penalty is likewise made clear: lack of unanimity — resulting in sentencing by the court — is put upon an equal plane with agreement on death or life. This lack of pressure for unanimity on penalty equally characterizes the portions of the court’s charge which follow that portion discussed in Judge Fahy’s opinion. Immediately after the passage now challenged the court carefully went over the form of verdict for the second count as an example to the jury:
“There are four possible verdicts that you may reach. * * * You can, you see, reach a verdict of not guilty, of guilty as charged to first degree murder, of guilty as charged to first degree murder with recommendation of life imprisonment, or, four, guilty as charged of first degree murder with the jury unable to agree as to the punishment. ******
“If * * * the jury has found the defendant not guilty under the second count, they will then consider all the possible verdicts under the first count, being any one of numbers 1 through 6; and you will note * * * that the first four verdicts are the same as those relating to the second count. * * *”
(Emphasis added.) The court thus made clear in discussing the second count that the various verdicts were of equal weight and indicated that the same was true of the possible verdicts under the first count. In my view the court’s instructions, read together with the unambiguous forms of verdict given the jurors— to which I next turn — compel the conclusion that the jury well understood the nature of its functions in deciding the separate issues of guilt and punishment.
The second and final prop used to sustain the principal opinion is the polling point, containing a sub-prop concerning the adequacy of the forms of verdict. Following the order of discussion of the principal opinion, I take up the sub-prop *113first. The court finds no mention of punishment in the “body” of the form, observing with disapproval that that “vital matter” has been relegated to an “explanatory note.” Without quibbling over the characterization of the list of verdicts as the “body” of the form, I simply point out that the “note” occupies more space than the “body.” I am unwilling to assume that the jurors would neglect to give careful study to the extended explanatory note — and the form as a whole — when pondering on a man’s life.1 Moreover, the court twice called their attention to the note in explaining the form:
“Now, you will see certain notes underneath this verdict which tell you what the penalties are * * * and I won’t go over those with you because I think they are perfectly plain.
■»***## “And then below are further instructions, as I have previously given, about the penalties, so they will be perfectly clear to you.”
The note could not have been more clearly drafted; to find fault with it defies common sense.
It has become fashionable of late to discount the intelligence of jurors, but I cannot bring myself to believe that these plain-spoken verdict forms could have misled the jury, guided as they were by the court’s painstaking oral instructions discussed above. I cannot imagine that any juror instructed that the words “guilty as charged" without more meant a sentence of death could possibly suppose, as Judge Fahy argues, that a verdict of “guilty as charged” would mean something other than the death sentence. The principal opinion has no basis without an assumption that these jurors were illiterate morons.
In enacting the present amendment to D.C.Code Ann. § 22-2404 Congress rejected a draft bill submitted by the Judicial Conference of this Circuit and approved by the Judicial Conference of the United States. The first sentence of the rejected bill reads as follows: “The punishment of murder in the first degree shall be life imprisonment unless the jury by separate unanimous vote recommends the death penalty.” Upon receipt of such a recommendation the court, under that draft bill, was to conduct a sentencing hearing after which it could overrule the jury determination of death. However, rather than accepting this bill, weighted, as it was, in favor of life imprisonment, Congress went out of its way to provide that “The punishment of murder in the first degree shall be death by electrocution unless the jury by unanimous vote recommends life imprisonment; or if the jury * * * is unable to agree as to punishment it shall inform the court,” which then must fix the sentence. Under this statute death is the residual punishment for first-degree murder; it must follow a verdict of guilty unless the jury affirmatively acts in the manner detailed in the statute. And a jury verdict for the death penalty may not be set aside by the trial court as was possible under the rejected Judicial Conference proposal. As a citizen I favor the bill which was rejected; as a judge I am sworn to apply the will of Congress — not my own.
II
Since some members of the court have expressed the opinion that Appellants were entitled to a split-verdict procedure below, that subject needs comment.
No one suggests that the Constitution, statutory language or legislative history requires implementation of D.C.Code Ann. § 22-2404 with a two-trial procedure like those adopted in four states and recommended by the American Law In*114stitute. The argument (brilliantly advanced by amicus counsel over the vigorous disclaimer of counsel for Appellants) is rather that the court may fashion such a scheme out of a “neutral” congressional will or out of a “silence” we envisage from failure by Congress expressly to specify that a split-verdict procedure is not to be judicially instituted. I cannot subscribe to this argument because the terms of the statute itself and the relevant history demonstrate that the traditional single trial was intended with the jury having a dual function — on guilt and on penalty.2
Whatever else it knew or intended, Congress certainly must have been aware that it was drafting a statute for a jurisdiction which, like the overwhelming majority of the states, had no experience with anything but a “one-trial” system in criminal jury cases. And yet we are asked to believe that Congress’ silence concerning this subject amounts to a license to judges to change this long-established way of life at our convenience. I can hardly believe that Congress must, by preamble or appendix to each statute, enumerate all the alternatives it has considered and rejected in order to preclude the courts from “implementing” a statute with an alternative which the records reveal Congress found unacceptable in fact.
It is my belief that the statute’s provision for three jury choices on penalty (lack of unanimity either way being one choice) was drawn to meet the problem of Andres v. United States, 333 U.S. 740, 68 S.Ct. 880, 92 L.Ed. 1055 (1948). See H.R.Rep.No.1874, 86th Cong., 2d Sess. 1 (1960). That case held that a jury may not return a guilty verdict under 18 U.S. C. § 1111 unless they are unanimous with respect to their discretionary determination of penalty. The “problem” of the Andres case is of course that it encourages jury nullification: one juror with scruples against capital punishment can “hang” a jury unanimously agreed on the defendant’s guilt. The most obvious way to avoid this problem was to provide separate trials on guilt and penalty such as is now urged. An alternative solution was to modify the existing single-trial procedure to provide a mechanism which would save a verdict of guilty where some jurors disagreed on penalty. The latter, I submit, is what Congress has done.
It must be assumed that Congress by March 1962 was well aware of the two-trial solution; at that time the California and Pennsylvania statutes had been in effect — and the Model Penal Code provision in draft — for some time. Any doubt on this is removed when we observe that at the time Senator Keating introduced the first bill, S. 2083, on June 1,1959, immediately after our Judicial Conference, he informed his colleagues that an alternative to his proposal of a single-trial procedure was the American Law Institute two-trial procedure. 105 Cong.Rec. 9393. Senator Keating likewise caused the Report of the District of Columbia Circuit Judicial Conference to be read into the Congressional Record. That report, later approved by the Judicial Conference of the United States, indicated that a split-verdict procedure had been considered and rejected. See 106 CONG. Rec. 6218-6219.
Congress must, then, be supposed to have known what a two-trial statute was and how it functioned generally. With this knowledge it refused to create one. Nor can it be supposed that the present statute was meant to leave in judicial limbo the question of single- versus split-verdict procedure. Congress undertook to deal with a procedural problem; it cannot be thought to have left the job half done, to be finished by this court. I submit that the only fair reading of *115the present legislation is that it does no more — and was intended to do no more— than modify the single-verdict procedure to meet the Andres problem created by the decision to make death discretionary.3
If it be assumed arguendo that the legislative history is “neutral” and that we do indeed have power, ought we adopt a two-trial system in this case as a matter of sound judicial policy?
Various arguments against such a system appear in the proceedings of the Judicial Conference of this Circuit which considered this problem in drafting the bill it sent to Congress: e. g., that such a procedure would be troublesome, expensive and time-consuming; that the introduction of aggravating background evidence would work too harshly against the defendant, inflaming the jury rather than providing a basis for dispassionate exercise of discretion. A further substantial argument made against a two-trial system during the course of our 1959 Judicial Conference proceedings was that defendants are probably better off under the present system, since in many capital cases the “insanity” issue is raised and the accused reaps much of the benefit of developing background information in mitigation without the burden of being exposed, to evidence in aggravation. Some serious students of this problem see an additional point in that defense counsel may be slow to adapt their tactics to a two-trial procedure, thus prejudicing their clients.4
Other problems exist to which the advocates of a two-trial system have not addressed themselves: Who would prove what at the “second trial” and what would be the standard of proof? See Kuh, A Prosecutor Considers the Model Penal Code, 63 Colum.L.Rev. 608, 615 (1963) (finding the Code defective in failing to deal with standard of proof). Would the conventional rules of evidence, including the exclusionary rules, be abrogated for the second proceeding as has always been true on imposition of penalty by the “penalty-fixer” in order to permit the penalty to be determined in the light of pre-sentence reports and other sources not subject to cross-examination ? See Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1948); Note, The Two-trial System in Capital Cases, 39 N.Y.U. L.Rev. 50, 63-73 (1964). Given the terms of the present statute, which speaks of “the jury,” could the trial judge, for good cause shown, empanel a new jury for the penalty trial as is possible in New York?
Under the statute Congress has given us, the jury’s discretion, I take it, is to *116be absolute. If we were to adopt a two-trial system, would there be such a thing as reversible error in the second or “penalty” trial? If so, what would be the scope of review? If error were found only in that phase, would a new guilt trial be necessary on remand? May the trial judge direct a verdict of life (guilt being already established) if he feels the second-trial evidence leads to only one result? Could he direct a verdict of death if the evidence were “all one way” ?
If the jury’s discretion at the penalty proceeding were to be absolute, it would be free to impose death without the existence of any substantial aggravating factor such as those written into the Model Penal Code. Under that Code, the jury must find at least one of the aggravating circumstances and must find further that there are no substantial mitigating circumstances. Some such rein on discretion would seem advisable. But a statute or rule drawn without such a provision could be found to grant absolute discretion to the jury. This has happened in New York and California.5
A legislative body drawing a two-trial statute might well want to consider adopting two interesting provisions of New York’s legislation: that which requires that a defendant under 18 years of age who is found guilty must be sentenced to life imprisonment, and that which mandates that a defendant who pleads guilty with the consent of the court and the prosecutor shall automatically receive such a sentence. See N.Y. Penal Law, § 1045. See also Cal.Pen. Code § 190.1. I do not suppose that Judge McGowan would argue that precise provisions of this nature can be adopted by any but a legislative body. If I am wrong in this supposition and if indeed he would feel capable of formulating such rules of law, then I suggest there are virtually no limits on the kind of “statutes” we can draft to “implement” Acts of the Congress.
This enumeration of a few of the problems confronting the designers of any two-trial system should make clear the utter folly of institution of such a system except after careful study of all its ramifications. We have not made such a study and we are not equipped to do so in the resolution of an appeal. With all deference to Judge McGowan’s position, I suggest that his opinion amounts to an advocate’s brief which would be appropriate as a petition to Congress. His proposal is not simply a matter of “devising procedural methods” to implement a statute ; he proposes a totally new statutory scheme which, as I have noted, both the Judicial Conference and the Congress considered and rejected. If a majority of the court was now prepared to adopt a two-trial or split-verdict procedure, we would swiftly discover that the “implementation” now lightly glossed over is in fact a major job of statute drafting.6
I am authorized to state that Judges Miller, Danaher and Bastían join in the views here expressed.
. One might speculate as to the reactions of the 12 jurors in this case to what this court does today. Having been put through the agonizing ordeal of imposing the death penalty — -knowing that any one of them could have blocked that result— they are now informed by four members of the court that they really did not know what they were doing.
. Particularly persuasive of Congress’ supposition that the old “one-trial” system was to continue is the argument of Senator I-Iartke against a proposed amendment which would have enabled the jury to foreclose, the possibility of parole. The senator reasoned that it would be inadvisable to vest such power in the jury, since that body is foreclosed from the relevant background evidence by the traditional rules of evidence. 108 Cong. Reo. 4131.
. Amicus argues that, since the statute contemplates that when the judge alone fixes the penalty he must hear evidence in mitigation and aggravation, Congress must have intended that juries also hear such evidence independent of the trial on the indictment. First, I submit that the normal rules of statutory construction point to the opposite conclusion. Second, is there not a rational basis for Congress to provide that a trained, professional judge can hear inflammatory evidence against the defendant which is not for the ears of impressionable laymen? Third, Congress may well have believed that when a single human being makes the fateful choice betwen life and death he should be safeguarded from precipitate action by the requirement that he give consideration to background evidence, whereas this is not essential when each of twelve persons has a veto against death.
. “ * * * The California experience, dating back to 1957, has * * • been that defense counsel have often neglected to prepare adequately for the penalty phase and have exhibited a lack of sophistication concerning what facts should be advanced as mitigating. * * * On the other hand, the prosecution has taken complete advantage of the penalty phase and has attempted to marshal and to present to the jury all of the aggravating circumstances that exist.” Note, Executive Clemency in Capital Cases, 39 N.Y.U.L.Rev. 136, 167 (1964). The California court has found it necessary to reverse frequently for “substantial error” in the penalty phase, as it may do under the terms of the California statute. Note, The Two-trial System in Capital Cases, 39 N.Y.U.L.Rev. 50, 60 (1964).
. See id. at 73. In New York, however, it is possible for the trial judge to opt for life merely on the basis of the guilt trial. The judge may foreclose the penalty issue from jury consideration by decreeing life imprisonment if he finds that a “sentence of death is not warranted because of substantial mitigating circumstances,” N.Y.Penal Law, § 1045(3), a procedure not permitted under the California legislation. Quaere whether this court or the District Court could “implement” D.C.Code Ann. § 22-2404 to conform to the New York practice, given that that section provides for death “unless the jury * * * recommends life * * * or * * * is unable to agree as to punishment * * (Emphasis added.)
. State v. Mount, 30 N.J. 195, 152 A.2d 343 (1959) is instructive in this regard. There the New Jersey Supreme Court found that legislative action would be necessary to institute a two-trial procedure. A concurring opinion wisely observed that “The orderly and practical administration of criminal justice requires that the problems herein be settled by comprehensive legislative and not piecemeal judicial action.” Id. at 358. See also People v. Friend, 47 Cal.2d 749, 306 P.2d 463, 471, n. 7 (Cal.1959) (calling for legislative action — which resulted in the California statute).