concurring in result, but dissenting from the reason, of the decision.
I agree with reversal of the judgment on review, but I disagree with the majority’s decisional premise: the successful challenge by the State of veniremen who were opposed to capital punishment. In my view no clause in the Constitution forecloses this judicial practice by North Carolina.
Staunch precedent for this conclusion is found in the cases cited but discarded by the majority. E. g.: Pope v. United States, 372 F.2d 710 (8 Cir. 1967); Turberville v. United States, 303 F.2d 411 (D.C.Cir. 1962), cert. den. 370 U.S. 946, 82 S.Ct. 1596, 8 L.Ed.2d 813; United States v. Puff, 211 F.2d 171, 182 (2 Cir. 1954), cert. den. 347 U.S. 963, 74 S.Ct. 713, 98 L.Ed. 1106. A few quotations from them will, I think, demonstrate the soundness of their holdings.
Puff, supra, was decided in 1954 under the present Federal murder statute, 18 U.S.C. § 1111. To sustain its view that the exclusion of veniremen for convictions opposing capital punishment, the Court, in Puff, quoted from Logan v. United States, 144 U.S. 263, 298, 12 S.Ct. 617, 628, 36 L.Ed. 429 (1892) as follows:
“As the defendants were indicted and to be tried for a crime punishable with death, those jurors who stated on voir dire that they had ‘conscientious scruples in regard to the infliction of the death penalty for crime’ were rightly permitted to be challenged by the government for cause. A juror who has conscientious scruples on any subject, which prevent him from standing indifferent between the government and the accused, and from trying the case according to the law and the evidence, is not an impartial juror. * * * And the principle has been applied to the very question now before us by Mr. Justice Story in United States v. Cornell [Fed.Cas. No. 14,868], 2 Mason, 91, 105, and by Mr. Justice Baldwin in United States v. Wilson [Fed.Cas. No. 16,730], Baldw., 78, 83, as well as by the courts of every state in which the question has arisen, and by express statute in many states.”
Similarly, Turberville, supra, when passing upon the very question now be*320fore us reasoned in the tenor of Puff, and also said:
“What [appellant] is really asserting is the right to have on the jury some who may be prejudiced in his favor- — ■ i. e., some who are opposed to one possible penalty with which he is faced. We think he has no such constitutional right. His right is to absolute impartiality.” (Accent added.)
Pope, supra, fully approved the attitude of Turberville and Puff, with the following supplement:
“The defense position comes down to a demand, not for an impartial jury which is neutral, but for something quite different, namely, a jury which includes persons who are prejudiced against — and, also, possibly for — capital punishment.
“We are also not persuaded by the argument that the trial court’s exclusion of these persons served improperly to produce a panel which was something less than representative of the community. In a narrow sense this might be said but one could say the same thing in the same sense when a court very properly asks those persons to step aside who are personally acquainted with counsel for the prosecution, or who cannot read, or who cannot understand the English language. To that extent the panel is always a little less than representative of the community as a whole. But this exclusion does not produce an unfair jury or an illegally unrepresentative one or one which is not impartial in the Sixth Amendment sense. tf
As did these Courts, I feel that this principle governs whether or not the statutes exact capital punishment man-datorily or allow an optional verdict of life imprisonment.
Epitomized, my thinking is that in a trial under a statute like the one now considered, the question of the penalty is by present law injected into the question of guilt, and the act’s validity is not doubted by the Court. A juror cannot vote “guilty” without qualification. Andres v. United States, 333 U.S. 740, 68 S.Ct. 880, 92 L.Ed. 1055 (1948). Therefore, if his conscience will not permit him to cast a ballot for the extreme penalty, he would be prevented from un-qualifiedly declaring his equally conscientious conviction of the accused’s guilt. He must stand aside as unacceptable because, although convinced of guilt beyond a reasonable doubt, he could not so say unconditionally. The statute plainly requires that, if the jurymen determine the defendant to be guilty of a capital offense, they must announce either the death penalty or life imprisonment. A juryman who has scruples about taking the life of one he finds guilty of committing a capital offense has not a freedom of choice between capital punishment and life imprisonment.
No Constitutional invalidity is raised against the statute, and I perceive no fundamental bar to the State’s rejection as a juryman of a venireman conscience-bound against capital punishment. It is a perfectly understandable tenet and I imply no derision of the scruple. Nor do I intimate any view of the right or wrong of the death penalty. I say only that it is a question for determination by the State, not one for the Federal courts in passing upon State laws.
Reference is made by the majority to the percentage of persons in North Carolina averse to execution for crime. Granted the accuracy of these figures, I doubt the soundness of accepting the poll as representative of State or even community opinion. Rather I would look to the expressions of the North Carolina legislature in its enactments. The criminal statute here under study has remained the law of North Carolina for many years, and to me this is indicative of the public judgment on capital punishment. If the citizens of the State were unwilling to follow the statute, I have no doubt it would be promptly repealed or otherwise modified. Again, this action is not for the Federal courts.
*321However, I would reverse the conviction here for disallowance of the defense challenge to a venireman who held it his duty to inflict capital punishment should the defendant be found guilty of murder. Cf. Stroud v. United States, 251 U.S. 15, 20, 40 S.Ct. 50, 64 L.Ed. 103 (1919); United States v. Puff, supra, 211 F.2d 171, 182. Moreover, there was trial error in the admission of inflammatory evidence and advertence before the jury to the defendant’s prior criminal record. These incidents necessitate a new trial, and for that reason I concur in the determination of the court to reverse.