(concurring in result):
As Judge Bryan, I concur in the result, but I do so upon the very limited ground of the essential unfairness of excluding every juror who professed an unexamined scruple against capital punishment while seating every juror who professed a belief in capital punishment, including one who stated a belief that he was under a duty to vote for the death penalty in any case of murder. It is enough for me that the voir dire inquiry was far from even-handed and that many jurors, whom we would all agree were qualified, were excused for cause. I do not think this record presents any broader question or that it is appropriate for a declaration of new and sweeping constitutional principles.
On this point, the voir dire examination of each juror in this case opened with the question, “Do you believe in capital punishment?” If the answer was “No,” he was asked a second question, typically, “You have conscientious scruples against it do you?” If the answer to the second question was “Yes,” as it predictably was, without any further inquiry and no probing whatever, the court excused the juror for cause. The procedure was in strong contrast to the probing of the juror who reported that he had read of the case in the newspapers and had formed a fixed opinion. He was seated after agreeing that he could eliminate his fixed opinion from his mind and decide the case on the evidence.
It seems clear to me that among the thirty-four jurors excused for cause on this ground there were many who had no more than a philosophical or intellectual antipathy to capital punishment. A large segment of the population today has such an antipathy, in varying degrees, including those who think a death sentence appropriate only in such extraordinary cases as murder committed under aggravated circumstances by a prisoner already under a sentence of life imprisonment for whom the threat of a second sentence of imprisonment would be no great deterrent.1 There is certainly no showing here that such persons could not subordinate their personal beliefs and follow the court’s instructions in considering the guilt or innocence of the defendant and, under North Carolina’s practice, approach the question of punishment with a reasonable degree of open-mindedness.
Surely a state in a capital case is not entitled to a jury composed exclusively of the most bloodthirsty of her citizens, and differences in shades of opinion about the appropriateness of capital punishment in particular cases ought not to be allowed as the basis of distinctions affecting the qualification of jurors.
I strongly suspect, too, that among the thirty-four jurors, there were some, or perhaps many, who had not so much as an intellectual antipathy to capital punishment in some classes of capital eases. When it was repeatedly demonstrated to all members of the venire that one could be excused by giving two simple and pat answers to two simple questions, strong temptation was placed before those members who had important business to attend or golf games to play or who, for other reasons, were loath to serve.
*318There remains the possibility that there were some among the thirty-four jurors who were excused who had such deep-seated notions with religious, moral or philosophical foundations that they could not act impartially in considering the question of guilt or the question of punishment. It is only a possibility, however, for this record shows us nothing, and their number is surely relevant to the broad Fourteenth Amendment issues the court undertakes to decide.
Nor can I find any basis for speculation that some jurors holding unshakable convictions against capital punishment might nevertheless have a substantial capacity for impartial service on the question of guilt or innocence though not on the question of punishment. Usually, the two questions are inextricably intertwined. North Carolina’s particular practice may be unusual, but it is not essentially different from the prevalent practice which attributes a binding effect to a jury’s recommendation of mercy. Even in a jurisdiction in which the jury’s function ends with a finding of guilt or innocence, a juror inflexibly opposed to capital punishment, knowing that the judge, or another jury, is likely to, or even may;> impose the death penalty upon a verdict of guilty is very likely to equate a verdict of guilty with a sentence of death. Such a juror will hold out for a verdict of guilt of a lesser offense which does not permit a death sentence. Certainly the record furnishes no basis for a conclusion that there is any substantial number of people in North Carolina or anywhere else who would be capable of impartial service on the question of guilt in a capital case though admittedly incapable of such impartial service on the question of punishment.
Our speculation is a slender reed, indeed, to support the imposition upon the states, and United States District Courts too,2 of the extraordinary requirement of bifurcated trials in capital cases. Really what the majority requires is two full trials if the first results in a verdict of guilty, for the second jury can hardly decide the question of punishment without being fully informed of all of the circumstances of the crime, the defendant’s defenses and his mental and emotional condition, everything, in short, developed at the first trial.3
If the record disclosed the fact, one which seems to me most improbable, that a substantial number of the jurors excused held such firm convictions against the imposition of the death sentence as to be disqualified from service on the question of punishment and yet were capable of impartial service on the question of guilt or innocence, we would be met with the question the majority undertakes to resolve. When the record fails to reveal a single juror who could be so classified, I think we far exceed our judicial function in deciding a question which a different record conceivably might present. Deciding hypothetical issues is bad enough when the only consequences are felt in the immediate litigation; it is quite intolerable, to my mind, when it imposes far-reaching and extremely costly consequences in the general administration of criminal justice.4 If the unlikely question ever is presented to a court, it will be time enough to face it then.
Because the state judge did not follow the even-handed approach approved in *319such eases as Pope v. United States, 8 Cir., 372 F.2d 710,5 I concur in the result. I do not think any other question is presented on this record, and I think the court makes a grave mistake in undertaking to decide any other question.
I am authorized by Judge Bryan to say that he joins in this opinion.
. There is nothing new in such antipathy. It lias been responsible for the very substantial progress we have made in the last two centuries from a‘ system in which the death penalty was imposed for most felonies.
. Under 18 U.S.C.A. § 1111, the penalty for murder in the first degree within federal jurisdiction is death unless the jury qualifies its verdict with the words “without capital punishment,” in which event the penalty is life imprisonment. A federal jury thus determines the punishment as does a North Carolina jury.
. They should have a great deal more, particularly the kind of information of which a judge may avail himself through a pre-sentence report.
. Our judicial systems for the administration of criminal justice are suffering great stresses now as a result of assumptions of ever-increasing burdens. Ways must be found to shoulder those additional burdens which are necessary, but the needless imposition of very weighty and costly additional burdens cannot be afforded.
. It appears in that case that ten jurors were excused after acknowledging such deep-seated scruples against capital punishment as to prevent them from imposing it even though they conscientiously thought such punishment proper under the law and on the evidence. On the other hand, three other jurors were excused after indicating they thought the death penalty should be imposed upon one who committed a homicide in the course of a bank robbery regardless of the circumstances as disclosed by evidence.