(dissenting in part) — I cannot agree with the majority's interpretation of the statutes which regulate imposition of the death penalty, nor with the conclusion that those statutes are unconstitutional.
Under RCW 10.94.010, the prosecutor is authorized to seek the death penalty wherever first degree murder is charged if he has reason to believe there are aggravating circumstances. If he so elects, a special sentencing proceeding shall be held if the defendant is found guilty of first degree murder. RCW 10.94.020(1). The judge shall reconvene the same jury which tried the case to determine the presence of aggravating and mitigating circumstances, and among the matters to be considered is the strength of the evidence of guilt at the trial. RCW 10.94.020(2). It should be apparent that the legislature intended that all first degree murder cases be tried to a jury. But the majority of this court has found a way to expunge that intent from the statute.
The problem is here because of this court's interpretation of the aggravated murder statute in State v. Martin, 94 Wn.2d 1, 614 P.2d 164 (1980). If the error of that interpretation is recognized, the statutes are not invalid under United States v. Jackson, 390 U.S. 570, 20 L. Ed. 2d 138, 88 S. Ct. 1209 (1968). In fact, our statutes are precisely what the Supreme Court approved of in that case.
Jackson held that an act of Congress which permitted a defendant to escape the death penalty by pleading guilty chilled the right of an accused to demand a jury trial and was therefore unconstitutional.
*501However, the holding in Jackson was based on the fact that under federal law there was no provision requiring a jury trial in all capital cases, or authorizing the court to impanel a jury to decide the penalty.
The Government would have us give the statute this strangely bifurcated meaning without the slightest indication that Congress contemplated any such scheme. Not a word in the legislative history so much as hints that a conviction on a plea of guilty or a conviction by a court sitting without a jury might be followed by a separate sentencing proceeding before a penalty jury. If the power to impanel such a jury had been recognized elsewhere in the federal system when Congress enacted the Federal Kidnaping Act, perhaps Congress' total silence on the subject could be viewed as a tacit incorporation of this sentencing practice into the new law. But the background against which Congress legislated was barren of any precedent for the sort of sentencing procedure we are told Congress impliedly authorized.
Jackson, at 578.
Our statutes provide for a jury trial to fix the degree of murder and the penalty.
The Supreme Court in Jackson approved the State of Washington's statutory scheme for the death penalty.
The goal of limiting the death penalty to cases in which a jury recommends it is an entirely legitimate one. But that goal can be achieved without penalizing those defendants who plead not guilty and demand jury trial. In some States, for example, the choice between life imprisonment and capital punishment is left to a jury in every case — regardless of how the defendant's guilt has been determined.23
Jackson, at 582.
RCW 10.01.060 and 10.49.010 are still in effect. RCW 9.48.030 provided in pertinent part:
Murder in the first degree shall be punishable by imprisonment in the state penitentiary for life, unless the *502jury shall find that the punishment shall be death; and in every trial for murder in the first degree, the jury shall, if it find the defendant guilty, also find a special verdict as to whether or not the death penalty shall be inflicted; and if such special verdict is in the affirmative, the penalty shall be death, otherwise, it shall be as herein provided.
Laws of 1919, ch. 112, § 1, p. 274.
RCW 9.48.030 has been replaced by RCW 9A.32 and 10.94, which provide in detail for the process of jury determination.
The United States Supreme Court had no difficulty in construing RCW 10.01.060 and 10.49.010 to require a jury trial in all capital cases and to harmonize with the first degree murder statute. That harmony exists with respect to the present statutory scheme.
The majority today decides to adhere to State v. Martin, supra, where it held that there is no statutory provision for the imposition of the death penalty, or a life sentence without possibility of parole, upon one who pleads guilty to a charge of first degree murder. Taking this stand, it reaches the inescapable conclusion that RCW 9A.32 and 10.94 are unconstitutional. In the course of reaching this result, the court has ignored fundamental principles of statutory construction, and has undercut the legislature's prerogative in deciding what crimes there shall be and how they shall be punished.
The legislature, accepting the will of the people expressed in an initiative measure, has decreed that there shall be a crime of aggravated murder, and that the punishment shall be death. Mindful of the awesome finality of that punishment, the legislature has taken pains to provide a procedure designed to assure that only the most outrageous offenses, committed by the least redeemable persons, shall invoke the penalty. Nevertheless, the majority, while not finding that penalty itself unconstitutional, has construed the act to have an effect which I am certain was never intended, and so has rendered it invalid.
*503I disagree both for the reasons set forth in my dissent in Martin, which I will not repeat here, and for the additional reasons which follow.
There are at least three statutes which attest to a legislative purpose to require a jury trial in all capital cases. By some judicial sleight of hand, this court has managed to emasculate all of them. Both the state and federal constitutions guarantee the right of trial by jury. One would expect the courts to be diligent to uphold statutes which implement that right. It is difficult to escape the surmise that it is more distaste for the penalty authorized than dissatisfaction with the laws, which leads the majority to follow a different course here. I would assume that most sensitive people sympathize with that distaste, even if all do not share it. Still, it is not an appropriate consideration to guide the court in its search for the meaning of a statute.
It is for the legislative branch of a state or the federal government to determine, within state or federal constitutional limits, the kind of conduct which shall constitute a crime and the nature and extent of punishment which may be imposed therefor. 1 C. Torcía, Wharton's Criminal Law § 10 (14th ed. 1978); 1 R. Anderson, Wharton's Criminal Law and Procedure § 16 (4th ed. 1957); McInturf v. Horton, 85 Wn.2d 704, 538 P.2d 499 (1975). While an ambiguous criminal statute should be strictly construed in favor of the accused (State v. Whatcom County District Court, 92 Wn.2d 35, 593 P.2d 546 (1979)), the objective of the court, as in studying all other legislation, is to ascertain the intent and, if it is within constitutional limits, to give it effect. 3 C. Sands, Statutes and Statutory Construction § 59.06 (4th ed. 1974); 1 C. Torcia, Wharton's Criminal Law § 12 (14th ed. 1978); 73 Am. Jur. 2d Statutes §§ 295-96 (1974). Where a statute is open to more than one interpretation, and one will render it invalid while the other would render it constitutional, the latter construction should prevail. Woodson v. State, 95 Wn.2d 257, 623 P.2d 683 (1980); State v. Dixon, 78 Wn.2d 796, 479 P.2d 931 (1971). Finally, statutes which are in pari materia should be read together. *504St. Peter v. Rhay, 56 Wn.2d 297, 352 P.2d 806 (1960). They should be harmonized wherever possible and effect should be given to both. Snohomish County PUD 1 v. Broadview Television Co., 91 Wn.2d 3, 586 P.2d 851 (1978); State v. Wright, 84 Wn.2d 645, 529 P.2d 453 (1974).
In Martin, and in the majority opinion here, we find scant attention paid to these controlling principles. The majority holding in Martin rested upon an arbitrary interpretation of CrR 4.2(a), a procedural rule.1 The relationship between CrR 4.2(a) and statutes which affect the trial proceedings in capital cases was never explored. The rule itself can scarcely be viewed as having created a right to plead guilty. It is essentially a restatement of the statutes which it superseded (RCW 10.40.150, .160) insofar as it deals with guilty pleas. Those statutes, like the rule, did not purport to create substantive rights but rather designated the kind of pleas acceptable and the form of their entry.2 *505These statutes had been enacted in the Code of 1891, ch. 28, §§ 57, 58.
The rule or rules which supplanted these statutes, like the statutes themselves, must be read in conjunction with other modifying statutes. These include RCW 10.01.060 as amended by Laws of 1951, ch. 52, § 1, RCW 9A.32, 10.94, and 10.49.010.
It is astonishing to find the majority here at the same time approving Martin (where a procedural rule had been held to modify the death penalty statutes) and declaring that the statutory scheme embodied in RCW 9A.32 and 10.94 is so complete and autonomous that statutes in pari materia can be of no force and effect. I submit that if RCW 9A.32 and 10.94 are indeed intended to express the whole law upon the subject which they cover, then this court's rules are no more operative than are the statutes which are in pari materia, and there must be a trial in every capital case, regardless of the plea that is entered. The statutes make no provision for a conviction without a trial. To give effect to all their requirements, there must be a jury trial in every case where the prosecutor requests a death penalty proceeding. If this is the statutory requirement, then the constitutional objection which invalidated the death penalty provision in United States v. Jackson, 390 U.S. 570, 20 L. Ed. 2d 138, 88 S. Ct. 1209 (1968), is not present here.
*506But if, as the court held in Martin, it must look beyond RCW 9A.32 and 10.94 to find the legislative intent, the logical place to turn is to other statutes dealing with the same subject.
How were these statutes treated in Martini First, the majority disposed of RCW 10.01.060. That section provides:
No person informed against or indicted for a crime shall be convicted thereof, unless by admitting the truth of the charge in his plea, by confession in open court, or by the verdict of a jury, accepted and recorded by the court: Provided however, That except in capital cases, where the person informed against or indicted for a crime is represented by counsel, such person may, with the assent of the court, waive trial by jury and submit to trial by the court.
The opinion declares that the proviso has been interpreted as denying to an accused in a capital case the option of waiving a jury trial and submitting to a trial by the court. I submit that the interpretation has been much broader than that. The court cited State v. Baker, 78 Wn.2d 327, 474 P.2d 254 (1970). The issue there was whether the accused had a constitutional right to submit to a trial by the court. In rejecting that contention, we said:
There is no question but that RCW 9.48.030, RCW 10.01.060, and RCW 10.49.010 require trial by jury when a person is charged with murder in the first degree.
Baker, at 334.
Brandon v. Webb, 23 Wn.2d 155, 160 P.2d 529 (1945), the remaining case cited by the majority in Martin, contains no mention of RCW 10.01.060 and its interpretation was not at issue there.
The majority in Martin refused to find in the act any intimation of a legislative intent that all capital cases should be tried to a jury. This is exactly opposite to the view which this court took in State v. Boggs, 80 Wn.2d 427, 428 n.1, 495 P.2d 321 (1972). There it said the language revealed an unquestionable intent to require a jury trial. The court was construing the section in pari materia with another act — the death penalty provision. RCW 9.48.030; *507Laws of 1919, ch. 112, § 1. That provision occupied only one section of the penal law — in striking contrast to the statutes which have replaced it. But there is nevertheless a vital similarity in language. Neither expressly denies a right to plead guilty; but both refer to the "trial" and require "the jury" to participate in the penalty determination. Thus, under both the old and the new statutes, the necessity of a jury trial is implied rather than expressed. And yet this court in Boggs and Martin construed essentially the same language in exactly opposite ways.
If there is any ambiguity in RCW 10.01.060, all doubt should be removed by a reading of RCW 10.49.010. That section provides:
If, on the arraignment of any person, he shall plead guilty, if the offense charged be not murder, the court shall, in their discretion, hear testimony, and determine the amount and kind of punishment to be inflicted; but if the defendant plead guilty to a charge of murder, a jury shall be impaneled to hear testimony, and determine the degree of murder and the punishment therefor.
This section so clearly requires a jury trial in all first degree murder cases, to determine the degree of crime as well as the punishment, that the court's former holdings upon the subject would appear unassailable. Faced with this seemingly impregnable obstacle to the pursuit of its course of reasoning, the majority in Martin disposed of it by speaking of the statute in the past tense, as though everyone knew it had long since expired. The majority here assumes that the legislature has repealed it sub silentio.
Contrary to that supposition, RCW 10.49.010 is not a defunct statute. The legislature has not expressly repealed it, and if RCW 10.94 has worked an implied repeal, it is only a partial one. The court rules can be easily harmonized with it; and were there a necessary conflict, I submit that there is enough of substantive law embodied in the statute to make it predominate over any conflicting rule. It embodies an expression of public policy with respect to the imposition of the death penalty, and that is a matter within the *508legislative domain exclusively. See State v. Smith, 84 Wn.2d 498, 527 P.2d 674 (1974).
The statute has withstood constitutional attacks. State v. Baker, supra; State v. Music, 79 Wn.2d 699, 489 P.2d 159 (1971) (vacated in part on other grounds and remanded, 408 U.S. 940, 33 L. Ed. 2d 764, 92 S. Ct. 2877 (1972)).
In In re Horner, 19 Wn.2d 51, 141 P.2d 151 (1943), this court held that, under this statute, an accused cannot waive a jury, and a superior court is without power to enter judgment and sentence unless and until a jury determines the degree of crime.
If these two statutes are read in conjunction with RCW 10.94, with which they are in pari materia, it will be readily seen that in every first degree murder prosecution there is indeed a jury which "tried the case", and this is the jury which the legislature declared should be reconvened to try the question of punishment, under RCW 10.94.020.
The majority recites episodes from the legislative history of RCW 10.94, from which it infers that the legislature did not intend to authorize a special sentencing procedure where there is a plea of guilty. If the theory of the majority is correct, the legislature consciously and deliberately enacted a statute designed to be unconstitutional. As I pointed out in my dissent to Martin, the fact that the act as passed contained no reference to a guilty plea is consistent with a legislative intent that there should be no avoidance of trial by the entry of a plea of guilty. The history is equivocal, at best. The court is well advised to look to the language of the statutes and the principles of construction to find the legislative intent, rather than to try to extract it from the spotty and ambiguous course of proposed enactments.
In another exercise in ingenious reasoning, the majority, while making the proper assumption that the legislature was aware of the existence of other statutes affecting the trial of capital cases, concludes that it would have expressly adopted those statutes if it had intended them to apply. I *509am aware of no rule of statutory construction which supposes that the legislature intends to repeal by implication all harmonious statutes in effect at the time of an enactment. The rule is to the contrary, and the presumption should be that the legislature would have repealed these statutes, or expressly made them inapplicable to the present legislation, if that had been its intent.
Now it may be suggested that RCW 10.49.010 is not entirely compatible with RCW 10.94.020, because, under the former, the jury determines the punishment, while under the latter it only finds the facts upon which the sentence is entered pursuant to law. This is a difference more of form than of substance, but assuming the two cannot be harmonized, the earlier statute has been superseded only to the extent that there is an inconsistency. Airway Heights v. Schroeder, 53 Wn.2d 625, 335 P.2d 578 (1959); 1 J. Sutherland, Statutes and Statutory Construction § 2022 (3d ed. 1943). The remaining portion of the statute, requiring a jury trial to determine the degree of murder, taken together with the other statutes, constitute a complete and workable statutory scheme, in accord with the intent which is manifest in RCW 10.94 when read as a whole — namely, the intent that there should be a jury in all capital cases, and that the jury should find the facts which control the punishment.
Do this court's rules disrupt that scheme? I submit that they do not.
RCW 9.48.030, RCW 10.01.060, and RCW 10.49.010 were all in effect on April 18, 1973, when CrR 4.2 (designating the permissible pleas in criminal cases) and CrR 6.1(a) (providing that waivers of jury trials must be in writing) were adopted. Neither the Washington State Judicial Council Criminal Rules Task Force which proposed these rules nor this court itself ever suggested that they superseded any of these statutes, all regulating the imposition of the death penalty. In fact, CrR 6.1(b)(1), authorizing defendants in noncapital cases to accept a jury of less than *51012, was adopted with obvious reference to these statutes, all requiring a jury trial in capital cases.
We have generally adhered to the principle that proceedings which are created by statute are to be governed by that statute. State v. Womack, 82 Wn.2d 382, 510 P.2d 1133 (1973); In re Adoption of Parsons, 76 Wn.2d 437, 457 P.2d 544 (1969); Passmore v. Passmore, 57 Wn.2d 762, 359 P.2d 811 (1961). This does not mean, of course, that the court's rules play no part in such a proceeding. It does mean that if they conflict with the statutory scheme, they must give way, else the statutory purpose may be frustrated, as is the case here. But it is not necessary to reach the question of conflict.
I submit that this court's rules are in no wise inconsistent with a statutory requirement that there be a jury in all capital cases.
CrR 4.2 lays down a general rule that a criminal defendant may plead not guilty, not guilty by reason of insanity, or guilty. This is a delineation of the range of permissible pleas. It does not purport to limit the legislature's power to mandate a jury trial for certain crimes, where it deems such trial to be in the interest of the public and the defendant.
CrR 6.1(a), if read literally, would appear to authorize jury waiver in all cases, regardless of legislative expressions upon the subject. If so, it cannot be reconciled with CrR 6.1(b)(1). But if the background of that rule is examined, it will be seen that it was intended to protect the constitutional right to a jury trial in all criminal cases (save those involving petty offenses), and not to confer an affirmative right to avoid such trials, regardless of legislative provision.
The Task Force which recommended adoption of this rule made this comment:
This section has no direct source in present Washington law. It establishes the general right to a jury trial. Such right exists and continues to exist unless the defendant waives it in writing. The rule is written so as to guard against the silent waiver of a jury trial by failing to demand a jury as [in] civil cases. This section reflects *511the Task Force's feeling that Criminal cases should be tried by a jury as a general rule, and that in order to avoid that procedure, the defendant must make an overt action to waive the jury, or lessen its size.
Criminal Rules Task Force, Washington Proposed Rules of Criminal Procedure, Comment to rule § 6.1(a), at 116 (1971).
This comment again reveals the Task Force's understanding of that which should be obvious to all — that the rule is meant to be one of general application and not to control where specific laws provide otherwise.
Since this court's procedural rules have the effect of law, being expressly authorized by the legislature, they should be construed as other laws are construed. The object should be to harmonize them with relevant statutes, so that legislative purposes may be achieved, rather than to use them as implements for nullifying otherwise valid substantive laws.
The general rule is that where general and special laws are concurrent, the special law applies to the subject matter contemplated by it to the exclusion of the general law. Furthermore, the subsequent enactment of a statute which treats a phase of the same general subject in a more minute way consequently repeals pro tanto the provisions of the general statute with which it conflicts. Airway Heights v. Schroeder, supra. Accord, State v. Walls, 81 Wn.2d 618, 503 P.2d 1068 (1972).
Under both of these phases of the rule, RCW 9A.32, RCW 10.01.060, RCW 10.49.010, and RCW 10.94, being special statutes, control the question of the necessity of a jury trial, prevailing over the court's rules, which are general in nature.
Thus, the rules of this court, when reasonably construed, offer no obstacle to the achievement of the legislative intent. That intent — to require a jury trial in all capital cases — implements the defendant's constitutional right to a jury trial and is in harmony with and facilitated by other statutes which are in pari materia. If effect is given to their manifest intent, the statutes are constitutional. If that *512intent is ignored and a different intent is substituted, they cannot stand. The relevant principles of statutory construction direct the court to a construction of the statutes which render them constitutional. I would overrule State v. Martin, 94 Wn.2d 1, 614 P.2d 164 (1980), and hold that a person charged with a capital offense may not, by pleading guilty, avoid a jury trial.
I agree with the majority in its conclusion that the submitting of questions to the jury in the sentencing procedure, pursuant to RCW 10.94.020, does not unconstitutionally infringe upon the jury's power to " 'deliberate free from legal fetters'". The statute was designed to and does in fact conform to the standards set by the United States Supreme Court in Gregg v. Georgia, 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976).
I also agree with the majority's disposition of the contention regarding the predictability of future conduct. The sufficiency of the evidence to support the jury's findings can be examined by the court wherever the question arises in individual cases. It would be inappropriate to make a conclusive and abstract judgment upon the matter at this time.
Upon the question whether hanging is a constitutional means of execution, I do not find before the court sufficient undisputed evidence to warrant a conclusion that this procedure is excessively cruel. Any means of inflicting death embodies cruelty. But there is medical evidence in the record that hanging almost invariably produces immediate death or at least loss of consciousness. There are exceptions, but this appears to be the case, whatever the means chosen. It is for the legislature, as the prescriber of the punishment for crime, to determine what method shall be used, in the absence of a definitive showing that unnecessary cruelty is involved. There is no such showing here.
Dore, J., concurs with Rosellini, J.
See, e. g., Wash. Rev. Code §§ 9.48.030, 10.01.060, 10.49.010 (1956). Cf. Cal. Penal Code § 190.1 (Supp. 1966).
Having announced that the court has created a right to plead guilty in all criminal cases, through the office of its procedural rules, the majority in State v. Martin, 94 Wn.2d 1, 614 P.2d 164 (1980), went on to hold that "a criminal defendant has the right to plead guilty unhampered by a prosecuting attorney's opinions or desires.” Martin, at 5. It based its holding on the fact that no statute or rule requires prosecutorial approval before a defendant may plead guilty. While this is true, it does not follow that, by pleading guilty, a defendant in a capital case may avoid a jury trial. This court has held to the contrary.
In State v. Davis, 6 Wn.2d 696, 704, 108 P.2d 641 (1940), the defendant, charged with first degree murder, had pleaded guilty and stood upon that plea, although his counsel interposed on his behalf a plea of not guilty by reason of insanity. This court cited Rem. Rev. Stat. § 2116 [Pierce's Code § 9169] (now RCW 10.49.010) and said:
In the case at bar, it was necessary that a trial be had, notwithstanding appellant's plea of guilty, in order that the degree of murder might be determined by a jury. Appellant had made a confession, and had pleaded guilty, but the state was bound by neither, nor limited in the method of proving its case.
(Citations omitted.)
That interpretation of the statute has never been rejected by the legislature nor disturbed by this court. Thus, it matters not whether the prosecutor can hamper a plea of guilty with his "opinions or desires." What is significant is that he has a statutory right to present to a jury his evidence concerning the degree of the crime and the punishment to be imposed.
"There are but three pleas to the indictment or information. A plea of—
"(1) Guilty;
*505"(2) Not guilty;
"(3) A former judgment of conviction or acquittal of the offense charged, which may be pleaded with or without the plea of not guilty.” RCW 10.40.150.
“The plea may be entered on the record substantially in the following form:
" (1) A plea of guilty: The defendant pleads that he is guilty of the offense charged in the indictment (or information as the case may be);
”(2) A plea of not guilty: The defendant pleads that he is not guilty of the offense charged in the indictment (or information as the case may be);
"(3) A plea of former conviction or acquittal: The defendant pleads that he has formerly been convicted (or acquitted as the case may be) of the offense charged in the indictment (or information as the case may be), by the judgment of the court of (naming it), rendered on the_day of_A.D. 19_ (naming the time).” RCW 10.40.160.
See also RCW 10.40.170, providing:
"The plea of guilty can only be put in by the defendant himself in open court.”