dissenting in part and concurring in part:
I join with Chief Justice Collins in his dissent, emphasizing the following points: It was forthrightly stated in Witherspoon v. Illinois, 391 U.S. 510 (1968), that the issue in that case was narrow, and I see the issue in this case in the same light. In Withespoon, the High Court placed its stamp of approval on a state’s right to exclude from the jury, in a capital case, those who say that they could never vote to impose the death penalty or that they would refuse even to consider its imposition in the case before them.
For a prospective juror to come within these categories of exclusion it is not necessary that he flatly state, “I will never vote to impose the death penalty,” or “I refuse even to consider its imposition.” It is sufficient if those attitudes can be inferred from his voir dire responses.
In this case, while the examination was not as extensive as might be desirable, the message was evident. In the answers from all but three of the eleven jurors excused under NRS 175.105(9), the message was clear that they would not vote to impose the death penalty. Witherspoon does not require from the prospective juror a law-defying, rebellious attitude, indicating that he would never vote for the death penalty, but it can come from his conscience, even though that case indicates that merely having “conscientious scruples against inflicting it” is not sufficient for exclusion. Apparently eligibility for exclusion is a matter of degree. If a prospective juror has a hard core objection to the death penalty, he is excusable, but if his attitude is just a queasy, conscientious scruple, he must serve.
As I read the responses from all but three of the eleven *99excused veniremen it is indicated to me that they could not or would not impose the death penalty and their discharge was proper.
Now, based on the cold record and without having the opportunity to observe their physical demeanor and reaction, I will proceed to examine the responses of veniremen Edwards, Bilbrew and Minedew:
1. Dee A. Edwards not only stated that she didn’t believe in the death penalty and believed that every person should have a chance to reform, but she also stated that she could not be a fair and impartial juror. The State challenged her under both NRS 175.105(9) and [151.100(2) sic] 175.100(2).1 Even if she might not have been disqualified under NRS 275.105(9) and Witherspoon she was properly challenged and excused under NRS 175.100(2) for actual bias.
2. Rosie L. Bilbrew stated that she worked for a policeman, and that she had discussed the case at some length with his wife and that she was, “not for capital punishment.” Whereupon, counsel for the defense stipulated that she be excused.
While defense counsel indicated that his offer to stipulate was prompted by NRS 175.105(9), it is just as easy to believe that trial strategy prompted him to have her excused because of her employer-employee relationship. With this strategy he saved a peremptory challenge.
3. Mickie Minedew’s responses were somewhat less than clear. At first she indicated that she was “not sure” about her position with reference to the death penalty, then in substance she stated that because of her conscientious thoughts on the general subject of capital punishment she would be precluded from returning the death penalty. Later she specifically denied that she would not return the death penalty and she stated that she could return a guilty verdict if it was supported by the evidence.
It appears, that under the Witherspoon mandate, Mickie Minedew may have been improperly excused, however, I agree with the Chief Justice that one juror improperly excused out of the eighty that were examined is not “crossing the line of neutrality” and the Bean jury was not “a tribunal organized to return a verdict of death.”
Based solely on the responses of the nine prospective jurors who were excused, excluding Mickie Minedew and Rosie L. *100Bilbrew, I believe that the decision of any court which would have required them to sit as jurors in this case would have forced this case to be tried by a biased, partial and prejudiced jury. The concept of an impartial jury as described by Justice Story in United States v. Cornell, 25 Fed. Cas. 650 (1820), would never have been achieved: “To insist on a juror’s sitting in a cause when he acknowledges himself to be under influences, no matter whether they arise from interest, from prejudices, or from religious opinions, which will prevent him from giving a true verdict according to law and evidence, would be to subvert the objections of a trial by jury, and to bring into disgrace and contempt, the proceedings of courts of justice. We do not sit here to procure the verdicts of partial and prejudiced men; but of men, honest and indifferent in causes. This is the administration of justice [which is required], .. .”
I turn now to a point which I believe further compels us to affirm the penalty in this case.
With the exception of veniremen Minedew and Edwards, everyone of the eleven prospective jurors who stated that they would not assess the death penalty or had voiced general objection to conscientious or religious scruples against inflicting the death penalty were excused upon the stipulation of defense counsel and the district attorney. In almost every instance defense counsel offered the stipulation before the district attorney could ask any questions of the prospective juror. These stipulations were made in open court, during trial, in the presence of the appellant and without any objection being voiced by him.
Stipulations are of an inestimable value in the administration of justice (Hayes v. State, 252 A.2d 431 (N.H. 1969)), and valid stipulations are controlling and conclusive and both trial and appellate courts are bound to enforce them. Burstein v. United States, 232 F.2d 19 (1956); Foote v. Maryland Casualty Company, 186 A.2d 255 (Pa. 1962); Pierson v. Allen, 409 S.W.2d 127 (Mo. 1966); Bearman v. Camatsos, 385 S.W.2d 91 (Tenn. 1964).
Stipulations made by an accused or by his counsel in his presence during trial are as binding and enforceable thereafter as are stipulations made by parties in civil actions. Brookhart v. Haskins, 205 N.E.2d 911 (Ohio 1965). In Scott v. Justice’s Court, 84 Nev. 9, 435 P.2d 747 (1968), the statute there required that an amended complaint be filed within one day, however, the attorney for the accused stipulated that the district attorney could be permitted to file the amended complaint within 30 days. We approved the stipulation and relied on *101Garaventa v. Gardella, 63 Nev. 304, 169 P.2d 540 (1946), where it was held to be error when the trial judge did not honor the stipulation of the parties waiving a rule of evidence.
Constitutionally protected rights may be waived by an accused and likewise such a waiver can be accomplished upon the stipulation of counsel when it is made in the presence of the accused who makes no objection to it. People v. Cohen, 210 P.2d 911 (Cal.App. 1949).
Pointer v. Texas, 380 U.S. 400 (1965), held that the right granted to an accused by the Sixth Amendment to confront the witness against him, which includes the right of cross-examination, is a fundamental right essential to a fair trial and is made obligatory on the states by the Fourteenth Amendment. In People v. Andrews, 44 Cal.Rptr. 94 (1965), decided shortly after Pointer v. Texas, supra, that court held that the stipulation of the accused’s attorney, made in open court, in the presence of the accused and without his objection, that the case could be tried on the transcript of testimony taken at the preliminary hearing, was a waiver by the accused of his constitutionally guaranteed right to be confronted by witnesses at trial.
Here the attorney for the appellant offered the stipulations without any solicitation from the district attorney. In some, but not every instance, he premised his offer by the statement: “We will anticipate the challenge of counsel.”
Every person who stands accused of a felony has the right to counsel (Gideon v. Wainwright, 372 U.S. 335), but unless counsel’s power to control the strategy and tactics of the trial are maintained and protected his efforts will become ineffective.
A stipulation excusing a prospective juror is not the same category as an accused’s failure to object in the trial court to the exclusion of a venireman. Boulden v. Holman, 394 U.S. 478 (1969). I believe that we must honor the stipulations of defense counsel as being a part of his trial strategy and tactics and affirm the penalty in this case.
In all other respects, I concur with the majority opinion and would therefore affirm the judgment in its entirety.
NRS 175.100(2) reads: “For the existence of a state of mind on the part of the juror which leads to a just inference, in reference to the case, that he will not act with entire impartiality, which is known in this Title as actual bias.”