In Re Wallace

CARTER, J.

I concur in the conclusion reached in the majority opinion but since there is much in said opinion with which I do not agree, I prefer to express my views separately.

I do not -agree with the statement in the majority opinion that “Petitioner has not sustained the burden of proving by convincing evidence the falsity of Julia Vickerson’s testimony as a prospective juror” because “He has failed to submit proof that the district attorney was aware of the alleged relationship between Wehr and the juror.” It is true that the opinion also states that: “Proof of Wehr’s knowledge would have been adequate had petitioner established that there were relations between Mrs. Vickerson and Wehr concealed by Mrs. Vickerson when she testified as to her qualifications to serve as a juror.” In my opinion, petitioner would be entitled to the relief which he is seeking in this case upon proof to the satisfaction of a majority of this court that any of the prosecuting officials knew that an intimate relationship existed between Wehr and the prospective juror and that her testimony denying such relationship was false. Such knowledge should be imputed to the district attorney as chief prosecuting officer of the county as he was responsible for the selection of the prosecuting officials and was bound by their conduct. It is obvious that petitioner would be prejudiced to the same *941extent from such misconduct on the part of the prosecuting officials whether or not the information of such misconduct was communicated to the district attorney. •

There are other statements in the majority opinion relative to the weight to be given Mrs. Vickerson’s testimony with which I do not agree but I will not take the time to mention them specifically.

The view I take of this case is that while we are not bound by the findings of the referee and may weigh the evidence and pass upon the credibility of the witnesses without regard to the findings of the referee, I find myself unable to disagree with the findings of the referee from an examination of the cold record. He having heard the witnesses testify, and observed their demeanor while testifying, is in a much better position than a member of this court to pass upon their credibility, and in view of the apparent discrepancies in the testimony of Mrs. Vickerson, although some of her testimony is very convincing, I am not disposed to disagree with the conclusion reached by Judge Shaw, the referee, that she was not telling the whole truth. In view of this state of mind, the only conclusion which I can reach is that the writ should be denied.