I dissent.
First: I do not believe that the district attorney’s argument to the jury constituted prejudicial misconduct.
In my opinion, it is a matter of common knowledge that the death penalty is a deterrent, because:
(a) Christians and Jews from the beginning of recorded history have recognized that the death penalty is a deterrent to murder.
This is demonstrated by the fact that, according to the account contained in the Old Testament (see New American Catholic Edition, The Holy Bible (1950)), the Lord spoke to Moses and said: ‘ ‘ He that striketh and killeth a man: dying let him die.” (Leviticus 25, verse 17.) “If any man strike with iron, and he die that was struck: he shall be guilty of murder, and he himself shall die. If he throw a stone, and he that is struck die: he shall be punished in the same manner. If he that is struck with wood die: he shall be revenged by the blood of him that struck him. . . . These things shall be perpetual, and for an ordinance in all your dwellings. . . . You shall not take money of him that is guilty of blood: but he shall die forthwith.” (Numbers 35, verses 16-31.)
(b) In the early history of the western states of the United States of America, including California, the death penalty was imposed by the early settlers to stop the rustling of cattle. It is a matter of common knowledge that in the early days of this state the apprehension and hanging of cattle rustlers reduced, and almost stopped, the theft of cattle.
(e) In the early history of San Francisco, law enforcement broke down and chaotic conditions prevailed. A group of citizens, known as the Vigilantes, undertook to restore order. To do this, they apprehended criminals and after trial promptly executed the guilty parties. Order was restored, and the civil authorities assumed control again. Clearly fear of the death penalty was the basic reason for the restoration of order.
(d) Any prosecuting attorney or criminal defense attorney or any trial judge who has sat for a substantial period in a department of the superior court devoted to the trial of felony *735eases knows that many felons are careful to refrain from arming themselves with a deadly weapon because they do not want to take the chance of killing anyone and suffering death as a penalty.
A few recent examples of the accuracy of this view are to be found in the following cases involving persons arrested by officers of the Los Angeles Police Department :*
(i) Margaret Elizabeth Daly, of San Pedro, was arrested August 28, 1961, for assaulting Pete Gibbons with a knife. She stated to investigating officers: “Yeh, I cut him and I should have done a better job. I would have killed him but I didn’t want to go to the gas chamber.”
(ii) Robert D. Thomas, alias Robert Hall, an ex-convict from Kentucky; Melvin Eugene Young, alias Gene Wilson, a petty criminal from Iowa and Illinois; and Shirley R. Coffee, alias Elizabeth Salquist, of California, were arrested April 25,1961, for robbery. They had used toy pistols to force their victims into rear rooms, where the victims were bound. When questioned by the investigating officers as to the reason for using toy guns instead of genuine guns, all three agreed that real guns were too dangerous, as if someone were killed in the commission of the robberies, they could all receive the death penalty.
(iii) Louis Joseph Turek, alias Luigi Furchiano, alias Joseph Parino, alias Glenn Hooper, alias Joe Moreno, an ex-convict with a felony record dating from 1941, was arrested May 20, 1961, for robbery. He had used guns in prior robberies in other states but simulated a gun in the robbery here. He told investigating officers that he was aware of the California death penalty although he had been in this state for only one month, and said, when asked why he had only simulated a gun, “I knew that if I used a real gun and that if I shot someone in a robbery, I might get the death penalty and go to the gas chamber.”
(iv) Ramon Jesse Velarde was arrested September 26, 1960, while attempting to rob a supermarket. At that time, armed with a loaded .38 caliber revolver, he was holding several employees of the market as hostages. He subsequently escaped from jail and was apprehended at the Mexican border. While being returned to Los Angeles for prosecution, he made the following statement to the transporting officers: “I think I *736might have escaped at the market if I had shot one or more of them. I probably would have done it if it wasn’t for the gas chamber. I’ll only do 7 or 10 years for this. I don’t want to die no matter what happens, you want to live another day.”
(v) Orelius Mathew Stewart, an ex-convict, with a long felony record, was arrested March 3, 1960, for attempted bank robbery. He was subsequently convicted and sentenced to the state prison. While discussing the matter with his probation officer, he stated: “The officer who arrested me was by himself, and if I had wanted, I could have blasted him. I thought about it at the time, but I changed my mind when I thought of the gas chamber.”
(vi) Paul Anthony Brusseau, with a criminal record in six other states, was arrested February 6, 1960, for robbery. He readily admitted five holdups of candy stores in Los Angeles. In this series of robberies he had only simulated a gun. When questioned by investigators as to the reason for his simulating a gun rather than using a real one, he replied that he did not want to get the gas chamber.
(vii) Salvador A. Estrada, a 19-year-old youth with a four-year criminal record, was arrested February 2,1960, just after he had stolen an automobile from a parking lot by wiring around the ignition switch. As he was being booked at the station, he stated to the arresting officers: “I want to ask you one question, do you think they will repeal the capital punishment law. If they do, we can hill all you cops and judges without worrying about it.”
(viii) Jack Colevris, a habitual criminal with a record dating back to 1945, committed an armed robbery at a supermarket on April 25, 1960, about a week after escaping from San Quentin Prison. Shortly thereafter he was stopped by a motorcycle officer. Colevris, who had twice been sentenced to the state prison for armed robbery, knew that if brought to trial, he would again he sent to prison for a long term. The loaded revolver was on the seat of the automobile beside him, and he could easily have shot and killed the arresting officer. By his own statements to interrogating officers, however, he was deterred from this action because he preferred a possible life sentence to death in the gas chamber.
(ix) Edward Joseph Lapienski, who had a criminal record dating back to 1948, was arrested in December 1959 for a holdup committed with a toy automatic type pistol. When questioned by investigators as to why he had threatened his victim with death and had not provided himself with the *737means of carrying out the threat, he stated, “I know that if I had a real gun and killed someone, I would get the gas chamber.”
(x) George Hewlitt Dixon, an ex-convict with a long felony record in the East, was arrested for robbery and kidnaping committed on November 27, 1959. Using a screwdriver in Ms jacket pocket to simulate a gun, he had held up and kidnaped the attendant of a service station, later releasing him unharmed. When questioned about his using a screwdriver to simulate a gun, this man, a hardened criminal with many felony arrests and at least two known escapes from custody, indicated his fear and respect for the California death penalty and stated, “I did not want to get the gas.”
(xi) Eugene Freeland Fitzgerald, alias Edward Finley, an ex-convict with a felony record dating back to 1951, was arrested February 2,1960, for the robbery of a chain of candy stores. He used a toy gun in committing the robberies, and when questioned by the investigating officers as to his reasons for doing so, he stated: “I know I’m going to the joint and probably for life. If I had a real gun and killed someone, I would get the gas. I would rather have it this way.”
(xii) Quentin Lawson, an ex-convict on parole, was arrested January 24, 1959, for committing two robberies, in which he had simulated a gun in his coat pocket. When questioned on his reason for simulating a gun and not using a real one, he replied that he did not want to kill someone amd get the death penalty.
(xiii) Theodore Roosevelt Cornell, with many aliases, an ex-convict from Michigan with a criminal record of 26 years, was arrested December 31, 1958, while attempting to hold up’ the box office of a theater. He had simulated a gun in his coat pocket, and when asked by investigating officers why an ex-convict with everything to lose would not use a real gun, he replied, “If I used a real gun and shot someone, I could lose my life.”
(xiv) Robert Ellis Blood, Daniel B. Gridley, and Richard R. Hurst were arrested December 3, 1958, for attempted robbery. They were equipped with a roll of cord and a toy pistol. When questioned, all of them stated that they used the toy pistol because they did not want to kill anyone, as they were aware that the penalty for killing a person in a robbery was death in the gas chamber.
(e) The people of the State of California have, through their Legislature, on many occasions considered whether the *738death penalty should be abolished in this state—this as recently as the 1961 session of the Legislature—and in each instance have come to the conclusion that the death penalty is a deterrent and have retained it. Therefore, the judiciary of this state is bound to follow the legally expressed will of the sovereign people of the State of California.
Second: Defendant did not object to the prosecutor’s statements. Therefore, he cannot raise the issue of their propriety on appeal unless they were of such character that the error could not have been cured by prompt admonition and instructions of the trial court. (People v. Hampton, 47 Cal.2d 239, 240 [3] [302 P.2d 300].) In my opinion, any alleged prejudice could have been cured by a prompt request for, and the giving of, an admonition and instructions by the trial judge.
Third: In my opinion, the trial judge properly exercised his discretion in denying the motion for a new trial on the penalty phase.
Any judge or attorney who has had trial court experience knows that a trial judge is not always familiar with all the procedural law at the outset of the trial of a ease. This is particularly true at the present time and is in part due to the ever-changing rules of law. This view was recently expressed by Honorable Evelle J. Younger, of the Los Angeles Superior Court, in an address which he delivered before the Lawyers Club. The following report on Judge Younger’s remarks appeared in one of the Los Angeles legal newspapers: “. . . .
“As an example Judge Younger noted the recent changes in the rules on admissibility of evidence obtained by illegal search and seizure. ‘We have just recently run the gamut from the common law rule that such evidence was admissible in Federal or State courts regardless of how obtained, if of probative value, to absolute exclusion. ’ The latest rule of absolute exclusion was handed down this year in the ease of Dolly Mapp. [Dollree Mapp v. Ohio, 364 U.S. 868 (81 S.Ct.. 111, 6 L.Ed.2d 1081).]
‘ ‘ The result of these changes is that it becomes increasingly difficult for local peace officers to determine what are, and what are not, allowable procedures in ‘ coping with mounting criminal activity. ’ An arrest, he stated, cannot be justified if it shocks the conscience—but whose conscience is the determining factor ? ‘ Not the community’s. Not the Police Chief’s. ... We are talking about the conscience of the Ninth Member of the United States Supreme Court. And, we are not *739talking about his conscience yesterday; we are talking about his tomorrow’s conscience.’
“If judges and legal scholars have difficulty in defining due process, one can sympathize with the lonely policeman patrolling his beat who is expected to make legally correct split-second decisions, he commented. ( 6
“The speaker concluded by reiterating, ‘We must zealously guard the rights of individuals; but in protecting the individual charged with crime we should never lose sight of the rights of society. ’ ” (Metropolitan News, Yol. XXXIX, No. 152 (8/31/61); The Los Angeles Daily Journal, Yol. LXXIY, No. 175 (9/1/61).)
The result is that a trial judge must rely to a large measure upon the information furnished him by the attorneys appearing before him. In the present case this was done. After the trial judge expressed doubts as to his authority to reweigh the evidence following the jury’s fixing of the death penalty, counsel for defendant pointed out to him that he did have such authority. Whereupon the judge accepted the view that he had authority on the motion for a new trial to reweigh the evidence as to the application of the death penalty. He then stated that assuming he had such authority, he would deny the motion, as the penalty was properly imposed, and that this view was supported by the fact that three juries had imposed the death penalty for the crime of which defendant was convicted.
The problem presented is not a mere academic one. The people of this state are faced with an extremely important situation.
I would affirm the judgment and the order denying the motion for a new trial.
The cases cited are taken from the records on file in the Los Angeles Police Department.