dissenting:
We dissent.
The majority opinion holds the penalty provision of NRS 200.360(1) is violative of the Sixth Amendment (right to jury trial) of the United States Constitution, Art. 1, Sec. 3 of the Nevada Constitution, and a denial of due process under the Fourteenth Amendment.
Once again this court is trying to outleap the federal courts, and in doing so reaches far afield to thwart, confound and confuse orderly criminal procedure. The majority relies principally upon one federal district court case, United States v. Jackson, 262 F.Supp. 716 (D. Conn. 1967), and the tenuous circumstances that such case is under review by the United States Supreme Court as its authority to hold the punishment imposed by the jury unconstitutional. We say it is time enough to follow the United States Supreme Court when it makes such a ruling *33and makes it binding upon the states through the Fourteenth Amendment. Until then we ought to presume our statute to be constitutional and uphold it if we can. State v. McClear, 11 Nev. 39 (1876); State v. Jon, 46 Nev. 418, 211 P. 676 (1923); State v. Plunkett, 62 Nev. 265, 149 P.2d 101 (1944). There is a way.
In the first place there are a greater number of cases and equally respectable authority that statutes similar to our rape statute (NRS 200.360(1)) are constitutional. Another federal district court held that a New Jersey statute which provided that only a jury could assess the death penalty did not violate the Sixth Amendment. LaBoy v. New Jersey, 266 F.Supp. 581, 585 (D.N.J. 1967). In LaBoy, Judge Lane discussed the Jackson case and wrote:
“Concededly, the fact that only a jury may impose the death penalty is a factor which weighs against entering a plea of not guilty and undergoing trial by a jury. However, we disagree with the conclusion that the Jackson case draws from this. It does not necessarily follow that this ‘obstacle’ to a jury trial is tantamount to a denial of the right to a jury trial. To determine when such an ‘obstacle’ becomes so great as to be considered a denial of the right to a jury trial, it is necessary to compare the degree of the ‘obstacle’ against the value of the policy which it implements.
“The New Jersey procedure involved in the instant case enunciates a legislative policy which deems it unwise to allow a judge acting alone to impose the death penalty. In this state the death penalty may be imposed only when a jury of twelve of the defendant’s peers decides that it is appropriate. Presumably, the legislative branch has determined that the imposition of the death penalty is such a serious decision that it is unfair to the defendant (and possibly to the judge) to have it rest on the shoulders of one man; that such a decision can only be entrusted to twelve fair and open-minded citizens whose values approximate those of the community from which they are chosen.
“This is a valid legislative policy which operates primarily for the class of defendants of which petitioner is a member. The fact that the procedure which implements this policy may in some cases influence a defendant, who has evaluated the alternatives open to him, to forego a trial by jury does not, in our opinion, invalidate the statutory scheme. The benefit which results from the procedure is sufficiently great that we are not compelled to strike it down in the name of providing an unobstructed choice of a trial by jury.”
Furthermore, it has not yet been decided that the Sixth *34Amendment right of jury trial under the United States Constitution is binding upon the states through the Fourteenth Amendment. Turner v. Louisiana, 379 U.S. 466 (1965). Likewise there is no constitutional right to a trial without a jury. Singer v. United States, 380 U.S. 24 (1965); Rains v. State, 83 Nev. 58, 422 P.2d 541 (1967). Moreover, in Nevada a defendant may not as a matter of right demand a trial before the court alone. Both the district attorney and the court must consent because the state too has a right to have the issue decided by a jury. NRS 174.480.1
In Robinson v. United States, 264 F.Supp. 146 (W.D. Ky. 1967), the federal kidnapping statute (18 U.S.C.A., § 1201(a) was upheld on a Sixth Amendment attack against it, and specifically disagreed with the holding in Jackson.2
In another opinion by a federal district judge, the federal kidnapping statute was also constitutionally upheld. McDowell v. United States, 274 F.Supp. 426 (E.D. Tenn., October 25, 1967). It is ably reasoned in that opinion, “A defendant indicted for a violation of Section 1201(a) cannot be said to have it the worse because a jury, as well as a judge, must concur in a capital sentence, than if a capital sentence could lawfully be meted out by a judge alone. Whatever may be the merits or demerits of capital punishment, the Court is of the opinion that the legislative policy of interposing the jury between a judge and the imposition of capital punishment upon a defendant is a valid policy, and, moreover, one which should not be overturned for any but the weightiest of reasons.”
The majority opinion holds that Spillers “is compelled to pay a terrible price for exercising his constitutional right to a jury trial — the possibility of death.” But the record does not bear out that conclusion. Actually at the arraignment in district court Spillers, with counsel present, stood mute and the court, under NRS 174.400, was compelled to and did enter a plea of not guilty for him. The court then directed the case to be set down for trial before a jury, the customary order in all felony cases. Thus it is inaccurate to say Spillers intentionally chose one mode of trial over any other. By standing mute, he forced the court to exercise the only choice available under those circumstances; that is, a not guilty plea and a trial by jury. This circumstance carries the inescapable conclusion that Spillers *35never attempted to exercise his right, if he even had one, to be tried by the court alone.
It is extremely difficult to see how a person has been prejudiced when he is accorded the most valuable of all constitutional rights, the opportunity of having his guilt or innocence decided by a jury of fellow citizens and peers. When contrasted with the fact, as disclosed by the record, that at no time did he ever attempt in any way, directly or indirectly, to have his guilt or innocence determined by a trial before the court alone, or that he even toyed with the idea of a plea of guilty to the aggravated rape charge to avoid the possibility of the death sentence, one can only conclude he knowingly waived any other rights he may have had. In making those waivers he clearly did so with competent counsel present and advising him. After having enjoyed the full benefit and advantage of a jury trial, which resulted in a determination of his guilt beyond a reasonable doubt, as expressly noted by the majority of this court, he now seeks to avoid the punishment affixed by the jury, a penalty he knew to be within their power if they found he committed the rape and it was accompanied with violence.
The defendant and his counsel also knew under the very same statute that, if the evidence warranted it, the jury could have found Spillers either not guilty or guilty only of nonviolent rape. If the latter verdict had been rendered, the judge would be compelled by law to sentence Spillers to not less than 5 years nor more than life. But here the evidence of violence and aggravation was great.3 The jury, no doubt contrary to the hopes and expectations of Spillers and his counsel, not only convicted him, but fixed his punishment at death for his violent and aggravated conduct in raping his victim.
The majority of the court engages and indulges in flights of pure fantasy and speculation, nowhere borne out in the record, when they say Spillers was “coerced” or “compelled” in the manner of trial he had or could have had. There is nothing constitutionally wrong with the rape statute, which has been unchanged on the law books of Nevada since 1911. The only thing that could and did subject Spillers to the terrible price of *36death was his terrible violence and aggravation in raping an innocent woman and mother in her own home in the dead of night within the sight and sound of her own children.
He seeks by hindsight a procedure he waived by foresight. As fallible human beings, we would indeed be fortunate if we could always enjoy the wisdom of hindsight in our conduct of life’s affairs. We cannot, and because the law follows the rules of life, it should not. Those who would try to make it different by artificial reasoning are doing a disservice to orderly processes of the law. We are inclined to believe many courts in this land are permitting hindsight of those accused of crime to largely control appellate review. As a result, it is not uncommon for appellate review to continue from five to even ten years, at a cost that is enormous. We urge a rule that sharply limits interminable reconsiderations in both the state and federal court systems when the genesis of the point to be reviewed is attributable to hindsight.
But this decision may have a more far-reaching effect than the majority of this court realizes. It may open the door to every prisoner in Nevada convicted by a jury of the unlawful killing of a human being under NRS 200.010 to 200.030 to complain that their sentences are unconstitutional. We might well be plagued with writs of habeas corpus and we may have to grant them under the authority of this decision. As we view it, a person convicted of homicide pursuant to NRS 200.010 to 200.030 could urge the same argument that Spillers makes here. Under the homicide statutes, on the plea of not guilty requiring a trial, only the jury can fix the death penalty. The court alone could not.
Admittedly there is a distinction on a homicide charge if a defendant pleads guilty to an open charge of murder. A three-judge district court must be assembled. NRS 200.030(3). There is no such express provision under the aggravated rape statute. We think, however, that the rape statute could reasonably be construed to conform to the homicide statute requiring the calling of a three-judge district court on a plea of guilty.
In any event, neither of those questions is before us. Spillers made no effort to test the constitutionality of the rape statute upon the questions of either a plea of guilty or a trial before the court before he accepted the benefit of the jury trial ordered for him by the court. The constitutionality of a statute can always be tested by habeas corpus, Ex parte Philipie, 82 Nev. 215, 414 P.2d 949 (1966). Had he initiated such test he would have avoided “the terrible price for exercising his constitutional right to a jury trial,” which looms so large in the *37mind of the majority. Accordingly, we would affirm the conviction and sentence.
We venture to say that few, if any, trial judges in Nevada would, unless clearly compelled by law, consent to a capital case being tried before the court alone instead of a jury.
It should be noted, however, that under federal law the recommendation of the death sentence is not binding upon the court.
Spillers entered the victim’s home in the dark of night; the victim and Spillers fought over a gun; a shot was fired; Spillers threatened to choke her to death if she didn’t be quiet and submit to his demands; Spillers struck her several times; Spillers covered her head with a pillow —all within the sanctity of her own home and bedroom — and as a terrifying climax, which would no doubt kill the will to resist of any woman, held the gun to the head of and threatened to shoot her 4-year-old son.