(concurring) :
I concur in granting the defendant a new trial. In doing so I note my agreement with the principle stated in our statutory and decisional law that there should be no reversal of a judgment merely because of technical error, but only if it is substantial and prejudicial.1 Were the rule otherwise, the reversal of a judgment and the granting of a new trial would be an exercise in futility by having another trial to obtain the same result. Because of that fact and other unsatisfactory aspects of undue delay, difficulty and expense, the whole process of enforcing the law and administering justice would suffer by adding to the already too evident loss of public respect. However, without losing sight of the propositions just stated, in assuring equal justice to all, there is another side of this picture which must be taken into account. Where the life of a human being is in hazard, it is incumbent as a part of human decency and good conscience to be extremely cautious in making sure that the rights of the accused have been safeguarded to the -end that he has a fair trial by an impartial court and jury.
Upon reading of the voir dire examination of the jury panel it seems to me that the jurors may have gained the impression that in order to be qualified as jurors they should be of such frame of mind that if they found the defendant guilty of murder in the first degree they ought to impose the death penalty. This is illustrated by the questioning of the juror Mrs. Hedwig Maass who was challenged by the district attorney and was excused over the obj ection of the defendant. In the interest of brevity only portions are quoted, but in my judgment, the following fairly shows both sides of the question:
Mr. Banks: I’ll ask you, are you opposed to capital punishment?
Mrs. Maass: Yes.
Mr. Banks: In any instance, can you see where a death penalty would be justified?
Mr. Van Sciver: That’s not proper, (discussion of the objection)
The Court: The question may stand. What’s your answer?
Mr. Banks: I asked you if you were opposed to capital punishment ?
Mrs. Maass: Maybe I should say that I’m opposed to it. If I don’t believe in it—
Mr. Banks: Now, I’ll ask you if you would always return a recommendation of leniency if you believed the defendant to be guilty of murder in the first degree beyond a reasonable doubt?
Mrs. Maass: I guess I couldn’t make the opinion until I've heard the facts.
*219Mr. Banks: I take it, then, in some instances you could see where the death penalty would be justified, is that correct?
Mrs. Maass: Yes.
* * * * * *
Mr. Banks: I’ll ask you, with your attitude on capital punishment, would it ever prevent you from returning a verdict of guilty of murder in the first degree, even though you believed the evidence supported such a charge?
Mrs. Maass: Could be. I would recommend leniency.
* * * * * *
Mr. Banks: Let me ask you this. Knowing that a judge may not follow the recommendation of leniency, based on your attitude towards death, would you be inclined to return a verdict of murder in the second degree rather than a verdict of guilty of murder in the first degree, even though you believed that the evidence showed a defendant to be guilty of murder in the first degree ?
Mrs. Maass: Well, I don’t think so.
* * * * * *
Mrs. Maass: I guess I’m a little bit confused .
Mr. Banks: I’ll try to make it a little simpler. If you believed that the evidence showed a defendant to be guilty of murder in the first degree beyond a reasonable doubt, and you knew that the judge might not follow a recommendation of leniency, rather than returning a verdict of guilty of murder in the first degree, would you return a verdict of murder in the second degree because you knew that that took it out of the judge’s hands ?
Mrs. Maass: Yes.
Mr. Banks: I’ll challenge the juror for cause, Your Honor.
The Court; Do you want to make any objections ?
Mr. Van Sciver: Yes, I’ll except.
The Court: You’re excused, Mrs. Maass. Thank you.
I am in accord with the idea that a juror cannot be a law unto himself; and that he must be able to answer without reservation that he will accept and follow the law as instructed by the court regardless of what he may personally believe it is or ought to be. But in a case involving first-degree murder, the juror has not only the responsibility of determining guilt or innocence, but in the event the verdict is guilty, he has the further responsibility of determining whether he will make the recommendation of leniency. His state of mind should be such that he is entirely free to make or not to make that recommendation on the basis of what he perceives in the trial, and not because of any predisposition to a result because of bias or prejudice one way or the other.
*220It does not strike me as being anything out of the ordinary for a juror to express some compunction and serious concern about the death penalty generally. I do not see the justification for the conjecture in the statement, “ . . . that the judge might not follow a recommendation of leniency . . The fact is that with extremely rare exceptions, trial judges do follow such a recommendation. My impression from the entire colloquy: that there could very well have emerged in the mind of a juror the idea that if the verdict should be murder in the first degree, the death penalty ought to be imposed, does not comport with the requirement of our law. If the questions and answers of Mrs. Maass are considered in the composite, as they should be, I fail to find therein any basis for concluding that she was so biased or prejudiced as to disqualify her as a juror. Persuasively pointing to the contrary are her statements that she “shouldn’t form the opinion until I have heard the facts .” and her affirmative answer that “ . . .in some instances . . . [she] . . . could see where the death penalty would be justified . . .”
Considering whether prejudicial error was committed in excusing this juror involves the total effect it may have had upon the trial. It seems hardly to be gainsaid that the questioning and the result reached with respect to Mrs. Maass in the presence of the entire panel may well also have had an improper influence upon the other jurors. For the reasons stated herein, I have serious doubt that the defendant has been given his entitlement of a trial by a fair and impartial jury.2 Accordingly, I concur in the reversal of the judgment and the remand for a new trial. (All emphasis mine.)
. Sec. 77-42-1, U.C.A. 1953; State v. Estes, 52 Utah 572, 176 P. 271; State v. Siddoway, 61 Utah 189, 211 P. 968.
. See Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).