(dissenting) —
Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law. *382(Italics mine.) Const. art. 4, § 16. Through instruction No. 12, the court, I think, declared the law as it applied to the alternative punishments, life imprisonment or death. In giving this instruction, the court did no more than inform the jury in particular of what they knew in general, that life imprisonment is not necessarily imprisonment for life but may, as fixed by the Board of Prison Terms and Paroles, become a far shorter term. It enabled the jury rationally to apply the law governing punishment to the facts of the case — all in accordance with their sworn duty.
True, an instruction explaining sentences would be inappropriate in cases of lesser felonies. In such cases, the jury is correctly charged that they have no concern with the punishment. But in cases of murder in the first degree, the situation is drastically different, for there a verdict of guilty places upon the jury the inexorable duty of deciding whether the death penalty shall be inflicted.
Choice is, therefore, implicit in rendering a special verdict on the death penalty. In imposing it or negating it, the jury has to choose between one or the other. Although from their experience as mature individuals jurors know what the death penalty means and although presumed to know the law, they are, I think, quite unlikely to know, and except from the trial judge have no means of learning, what the law means as to the alternative punishment — life imprisonment. Thus, in giving instruction No. 12, the court has done no more than the constitution requires in the premises — declare the law. That the instruction should not be deemed reversible error is demonstrated by the nice degree of discernment shown by the jury in this case. Of three men found guilty in the first degree of the same murder in the same trial, the same jury imposed the death penalty on defendant Todd only. Instruction No. 12 enabled the jury to exercise a rational choice in a trial where a choice had to be made.
Considerations of punishment ought not be allowed to affect the jury’s collective judgment as to guilt or innocence. Accordingly, in cases where the function of the jury is solely to ascertain guilt or innocence, it should not con*383sider whether or to what extent punishment will be imposed, for the question of punishment is immaterial to guilt or innocence and is a matter exclusively for the court on conviction. But if the major responsibility in imposing punishment rests by law on the jury and the judicial power to ordain death devolves exclusively upon them, then the jury, I think, is entitled to know the law which governs these vital matters. To say, as does the majority, that the jury does not choose between penalties but only whether to take or spare the accused’s life, postulates, I think, an inherent contradiction. The jury cannot, if it finds the defendant guilty, escape the awesome choice. It must return a special verdict stating whether or not the death penalty shall be inflicted. RCW 9.48.030. In choosing the death penalty, the jury thus ipso facto rejects life imprisonment and vice versa.
Although I do not believe instruction No. 12 amounts to reversible error, it is, I think, like many other time-tested instructions, susceptible of improvement. I would prefer the instruction in the form recommended by Justice Finley in his concurring opinion.
The point is not entirely novel. This court passed directly on the question of whether the jury, in a capital case, could consider the possibility of imprisonment and parole versus imposition of the death penalty in State v. Buttry, 199 Wash. 228, 90 P.2d 1026 (1939). There, discussing comments made by a prosecutor during a murder trial, we said, at page 251:
There are cases which hold that, where the prosecutor suggests that, if the death penalty be not inflicted, the accused may be soon released by some future governor or parole board, a conviction should be set aside and a new trial granted. But the great weight of authority is to the contrary, especially where the prosecutor does not attempt to state statistical facts, but, as the prosecutor did in the case at bar, merely suggest such a possibility.
“The declaration by the prosecutor that, if the prisoner were sentenced to life imprisonment, he would be liberated in a few years, and would return home to enter upon a new course of crime, was no statement of fact *384bearing on the guilt , of the accused, but a mere expression of opinion or guess, which the intelligence of the jury would rate only as such. And, indeed, was it a reprehensible opinion? The jury was the sole judge whether the prisoner should die or suffer lifelong imprisonment, as the law lodges that discretion with it. By what considerations is the jury to exercise this discretion? Certainly, it can look at the hue of the crime as revealed by the evidence; and can not the jury consider whether the circumstances of the crime show its perpetrator to be a desperate man, and an enemy of society, and dangerous, should he escape or be pardoned?” State v. Shawn, 40 W.Va. 1, 20 S.E. 873.
For additional examples of this class of cases, see: McNeill v. State, 102 Ala. 121, 15 So. 352, 48 Am. St. 17; Wechter v. People, 53 Colo. 89, 124 Pac. 183; State v. Junkins, 147 Iowa 588, 126 N.W. 689; Bolin v. Commonwealth, 206 Ky. 608, 268 S.W. 306.
Many jurisdictions, including our own, have held it not reversible error if it be stated in argument that the average term of a man sentenced to life imprisonment in the penitentiary is not more than eight years, or that it is a matter of common knowledge that life sentences mean only ten or twelve years in prison, even though there is no evidence to that effect in the record. In Sullivan v. State, supra [Sullivan v. State, 47 Ariz. 224, 55 P.2d 312 (1936) ], the court said, in part:
“But were the remarks of the county attorney, as set forth in the motion for new trial, such as to require a reversal of the case? It is alleged (a) that he referred to the defendant, in his argument, as ‘nothing but a low down murderer,’ and (b) that he requested the jury to fix the penalty of death rather than life imprisonment, because the average prisoner sent up for life only serves on an average of eight years, and that, if the defendant received a life sentence, he would probably be paroled in eight years and thrown on society to kill and murder again.”
It was held that these remarks did not constitute reversible error. See, also, State v. Stratton, 170 Wash. 666, 17 P.2d 621, and the very recent (1938) opinion of this court in State v. Knapp, 194 Wash. 286, 77 P. (2d) 985.
In jurisdictions where a verdict of guilty in the first degree results automatically in sentence of death, unless the jury specifically recommends imprisonment for life, it *385is quite common for juries to come back into court and ask for an instruction as to whether, if the life sentence be recommended, the defendant can afterwards be pardoned or paroled. An instruction that he can be pardoned and paroled, given under such circumstances, is held not to be prejudicial. Liska v. State, 115 Ohio St. 283, 152 N.E. 667; State v. Carroll, 52 Wyo. 29, 69 P.(2d) 542; 51 Harvard L. R. 353.
It has been said by the supreme court of New Jersey that whether the defendant can be pardoned, if given a life sentence, is “naturally one of the elements to be considered by the jury” in determining whether sentence of death or life imprisonment shall be imposed, and that there is no reason why it should not be instructed in the first instance as to the existence of the parole and pardoning power. State v. Rombolo, 89 N.J.L. 565, 99 Atl. 434; State v. Carrigan, 93 N.J.L. 268, 108 Atl. 315.
Comments upon the alternative punishments prescribed by law for first-degree murder were not deemed error when we subsequently expressed approval of Buttry in State v. Baker, 30 Wn.2d 601, 192 P.2d 839 (1948). We referred without disapproval to an instruction relating to parole in State v. Smith, 74 Wn.2d 744, 771, 446 P.2d 571 (1968). See also, Prejudicial Effect of Statement of Prosecutor as to Possibility of Pardon or Parole, Annot., 16 A.L.R.3d 1137 (1967). The precise question arose in State v. Leland, 190 Ore. 598, 227 P.2d 785 (1951), when reference by the court during voir dire to the alternative punishment to death and the operation of the laws relating to parole in cases of life imprisonment was held not reversible. The Supreme Court affirmed this decision (Leland v. Oregon, 343 U.S. 790, 96 L. Ed. 1302, 72 S. Ct. 1002 (1952)), and denied rehearing, 344 U.S. 848, 97 L. Ed. 659, 73 S. Ct. 4 (1952). Accord: State v. Carrigan, 93 N.J.L. 268, 108 A. 315, aff’d, 94 N.J.L. 566, 111 A. 927 (1920); Commonwealth v. Sykes, 353 Pa. 392, 45 A.2d 43, cert. denied, 328 U.S. 847, 90 L. Ed. 1620, 66 S. Ct. 1021 (1946); and Bland v. State, 211 Ga. 178, 84 S.E.2d 369 (1954), in which latter jurisdiction a mandatory instruction is given that the jury will disregard statements of counsel concerning the possibility of pardon or parole.
*386In sparing the life of two of the defendants while at the same time imposing the death penalty on defendant Todd, the jury ineluctably made a choice. State v. Carpenter, 166 Wash. 478, 7 P.2d 573 (1932). Compelled by law in the event the verdicts were guilty to make three of a possible six choices concerning the death penalty, in my opinion it was, therefore, appropriate that the jury be properly informed as to the law governing those choices, and I would not deem the instruction reversible error.
The court, however, in reversing because of instruction No. 12, nevertheless affirms the judgment of conviction and reverses the sentence only. I dissent to this bizarre procedure, for I find no basis whatever for it in the code of criminal procedure. Except where a plea of guilty has been entered to a charge of murder in the first degree, the statutes make no provision for a jury other than the one which tried the case to try the issue of punishment. If an accused pleads guilty to murder in the first degree thereby totally acknowledging his guilt and irrevocably resolving that issue, then and only then, in my opinion, can a jury be limited to the issue of punishment. On this basis alone, a judgment and sentence of life imprisonment which showed on its face that it had been entered on a plea of guilty to the crime of murder in the first degree was held void and the cause remanded for trial by jury on the issue of punishment because only the jury has the power to decide between death and life imprisonment. In re Horner, 19 Wn.2d 51, 141 P.2d 151 (1943). After retrial of Horner, this court on appeal again held only the judgment and sentence void and not the information, arraignment and entry of plea because the issue of guilt or innocence had been fully resolved by plea of guilty. Holding that the matter of punishment rested exclusively with the jury, we affirmed the principle that, on a plea of guilty to murder in the first degree, a jury had to be impaneled to try the issue of punishment. State v. Horner, 21 Wn.2d 278, 150 P.2d 690 (1944). Not so, however, where the charge is murder in the second degree, for there on plea of guilty the jury has no judicial function and the court cannot impanel or permit a *387jury to hear testimony and determine the degree of the homicide. That issue has already been resolved by plea to the information. Brandon v. Webb, 23 Wn.2d 155, 160 P.2d 529 (1945).
It is impossible, I think, to read the statutes of criminal procedure as the court has done so as to segregate the issues and thus enable one jury to decide guilt and another punishment.
Murder in the first degree shall be punishable by imprisonment in the state penitentiary for life, unless the jury shall find that the punishment shall be death; and in every trial for murder in the first degree, the jury shall, if it find the defendant guilty, also find a special verdict as to whether or not the death penalty shall be inflicted;
RCW 9.48.030. If, for example, no one enters a plea of not guilty by reason of insanity on the accused’s behalf and it is proved that the claimed insanity was not known to anyone authorized to interpose the plea, it may be interposed “at any time . . . before the submission of the cause to the jury.” (Italics mine.) RCW 10.76.020. It is highly unlikely that this section means any jury other than the jury which will try the case and fix the punishment in event of a verdict of guilty of a capital crime. If a plea of insanity is entered, the court must instruct the jury and supply it with forms for the return of special verdicts. RCW 10.76.030. If the jury finds the accused sane but that he committed the crime charged while insane, that same jury must decide whether he is still insane. If it finds him insane at the commission of the crime but sane at trial, it must decide whether the accused is likely to suffer a relapse or recurrence of the insanity and must return its findings accordingly by special verdict. RCW 10.76.040.
Other sections of the criminal code imply that the jury which decides the issue of guilt must also decide the issue of capital punishment. A list of petit jurors must be furnished the accused. RCW 10.46.030. Issues of fact shall be tried by a jury of 12. RCW 10.49.020. In capital cases, the defendant and the state are each allowed 12 peremptory *388challenges. RCW 10.49.060. The court may provide for alternate jurors. RCW 10.49.070. And the jury — presumably the jury which will try the case — takes a prescribed statutory oath to make a true deliverance or a true verdict. RCW 10.49.100. Juries in criminal cases — apparently the whole case — shall be kept together except by consent of the prosecuting attorney and the accused. RCW 10.49.110.
Defendant Todd’s guilt of murder in the first degree has been ascertained by the jury which imposed the death penalty. If, as the majority holds, the court committed reversible error in giving instruction No. 12, that error under our statutes necessarily inheres in the special verdict as well as in the general verdict which declared him guilty, and he should have a new trial on all issues. The statutes, I think, admit of no other sensible construction and, accordingly, I would adhere to my dissenting opinion on this point in Hawkins v. Rhay, 78 Wn.2d 389, 474 P.2d 557 (1970).
I see nothing in the whole statutory scheme governing the trial of capital cases which allows the court to order separate juries to try the issue of guilt and the issue of capital punishment and, therefore, I dissent to a retrial of that sole issue. If the case must be retried, it should, in my opinion, be retried in full as to all issues joined by the information and the plea.
February 23, 1971. Petition for rehearing denied.