(dissenting) — I dissent. I am in accord with the majority opinion as to the second and third grounds of relief urged by the petitioner.
I am of the opinion that the petitioner has been denied due process so far as the sentence of death is concerned.
I concurred specially in the majority opinion in State v. White (1962), 60 Wn. (2d) 551, 374 P. (2d) 942. I agreed then, and I agree now, that the M’Naghten test was properly applied in determining the guilt or innocence of the defendant and that, on that issue, the defendant had a fair trial, and the verdict of guilty cannot be successfully assailed. Such a verdict carries with it a sentence of life imprisonment, unless the death penalty is imposed. My concurring opinion suggested that the M’Naghten test be applied in the determination of guilt or innocence, but that psychiatric testimony and evaluation be freely employed by the courts in determining the disposition and treatment of *27the offender. I repeat again a quotation from a concurring opinion of Chief Justice Weintraub in State v. Lucas (1959), 30 N. J. 37, 152 A. (2d) 50:
“ Tor all practical purposes the furor over M’Naghten is confined to the disposition of offenders convicted of murder. It is the death penalty which sparks the quarrel, Whatever may be their thesis of personal blameworthiness and of justice to the individual, I should think that all thoughtful persons would at least pause when judging a man at the portal of death. All doubts must congregate there. The ultimate responsibility with respect to capital punishment is, of course, legislative. But there is an area within the present statutory scheme in which the judiciary can and should move to accommodate the divergent views. I refer to the admission of full psychiatric testimony for the jury’s consideration in determining whether a man should live or die.
“ T have no doubt that such testimony belongs in the case for that purpose. I am convinced the Legislature so intended when in resolving a controversy over capital punishment it provided that the jury shall fix the punishment. State v. White, 27 N. J. 158 (1958). The mental condition of a man is so inseparable from the issue of a just disposition — just to him and to society — that it is inconceivable that the Legislature intended to exclude it.
“ ‘The functions of the mind are an integral part of the criminal event itself. The law requires a mens rea. The specific mental operations necessary for guilt, be they premeditation, deliberation, and willfulness, or a felonious intent in a felony murder, cannot be isolated from the total functions of the mind of the offender. To limit the proof to that part of the total mental activity which technically bears upon the issue of guilt is to conceal part of the event itself. The whole truth should be disclosed so that in deciding the question of life or death the jurors will know who it is who stands before them. That disclosure is necessary for the moral judgment the jurors must reach.’ ”
(See also his article “Psychiatry and Criminal Responsibility,” American Bar Ass’n Journal, November, 1963.)
It would be agreed that a trial judge in a noncapital case would not ordinarily exercise his discretion in the matter of a sentence either after a verdict of guilty or a plea of *28guilty without a complete presentence investigation and report.
Surely when the matter of imposing sentence is left to a jury in a capital case, they too should have the opportunity to know all that there is to be known about the defendant that has any bearing on whether he should be sentenced to death or life imprisonment — the only choice available to them.
Since we have no provision, as do California and Pennsylvania, for the taking of additional testimony in a capital case after the verdict,1 considerable latitude is allowed in the admissibility of evidence in such cases so that the jury may not only determine the issue of guilt, but have the information needful for consideration in pondering the issue of death or life imprisonment.
The petitioner does not here complain that any evidence offered by him bearing on that issue was excluded. His contention is that certain instructions to the jury excluding lack of volition and irresistible impulse, if proper on the issue of guilt or innocence,2 had the effect of excluding these psychiatric concepts from the consideration of the jury on the issue of what the sentence should be, i.e., death or life imprisonment.
With this very narrow but very vital contention, the majority never really comes to grips.
It is now presented to us for the first time; and all that we have said in Maish, Collins, Murphy, White, et al., is simply beside the point, because we are no longer considering the issue of guilt or innocence, but are considering the propriety of the consideration of evidence which, while *29properly branded as irrelevant on that issue, is definitely relevant on the issue of what should be done with this man whose guilt has now been determined.
The cases agree that inasmuch as it has been determined by the jury that the defendant is guilty, he is entitled to have his sentence determined on the basis of the entire case.
In the present case, the only statements to the jury concerning their responsibility in the imposition of the death penalty, were contained in instructions Nos. 37 and 40 and were as follows:
“You are instructed that in every trial for Murder in the First Degree, the jury shall, if it finds the defendant guilty, also find a special verdict as to whether or not the death penalty shall be inflicted, and if such special verdict is in the affirmative, the penalty shall be death.” Instruction No. 37.
U
“In the event you find the defendant guilty of Murder in the First Degree as to Count I, it will then be necessary for you to return a special finding as follows:
“ ‘Shall the death penalty be inflicted?’
“ ‘This special finding must be answered ‘yes’ or ‘no,’ according to the determination you reach.’ ” Instruction No. 40.
Instructions Nos. 333 and 354 correctly excluded any consideration of irresistible impulse or lack of volition, insofar *30as the issue of guilt or innocence was concerned; but these instructions also, for all practical purposes, removed these concepts from the consideration of the jury on the issue of what the sentence should be.
Certainly a defendant, under a statute such as ours, is entitled to an instruction that a jury may consider all the evidence, including all the psychiatric testimony, unfettered by any legal or medical concept of insanity on the question whether the penalty shall be death or life imprisonment.5
Less than that, in the case of the imposition of the death penalty, seems to me to be a denial of due process because it is a violation of the fundamental principles of justice which lie at the base of our civil and political institutions. See Palko v. Connecticut (1937), 302 U. S. 319, 82 L. Ed. 288, 58 S. Ct. 149. There is here no seismic innovation. The symmetry of the edifice of justice would be greater than it was before.
Since this is a dissent, any modus operandi is academic, and so I merely suggest what seems to me a logical solution to the problem.
Since it is now impossible to remand the issue of the sentence to the jury, which alone could inflict the death penalty,6 the death penalty cannot be inflicted and the *31matter should be remanded to the superior court to impose the only sentence which can now be entered upon the verdict of guilty, i.e., a life sentence. The following are a few of the cases in which a death penalty has been reduced to life imprisonment by a reviewing court. State v. Ramirez (1921), 34 Idaho 623, 203 Pac. 279, 29 A.L.R. 297; Commonwealth v. Green (1959), 396 Pa. 137, 151 A. (2d) 241; Commonwealth v. Garramone (1932), 307 Pa. 507, 161 Atl. 733, 89 A.L.R. 291.
I would, as indicated, vacate the death penalty for want of due process in its imposition and remand the case for the imposition of a life sentence.
Split-verdict procedure was first adopted in California and then, in 1959, in Pennsylvania to make possible the presentation to the jury, fixing the penalty, such factors as might be relevant thereto. The state could then show the prior criminal record, the character and atrocity of other offenses and other relevant details. The defense could show mitigation, environment, motive, mental defect, provocation, the age of the defendant and other relevant details.
State v. White, supra; State v. Collins (1950), 50 Wn. (2d) 740, 314 P. (2d) 660; State v. Maish (1947), 29 Wn. (2d) 52, 185 P. (2d) 486, 173 A.L.R. 382.
“You are instructed that the term ‘mental irresponsibility,’ as used alternatively with the term ‘insanity’ in the further plea of the defendant and elsewhere in these instructions, means what is defined in law as criminal insanity. Therefore, if you find that the defendant was mentally irresponsible under the definition as contained herein, you must find the defendant not guilty by reason of mental irresponsibility.
“If the defendant is to be acquitted upon his plea of mental irresponsibility or insanity, he must convince you by a preponderance of the evidence that, at the time the crime is alleged to have been committed, his mind was diseased to such an extent that he was unable to perceive the moral qualities of the act with which he is charged, and was unable to tell right from wrong with reference to the particular act charged. A person may be sick or diseased in body or mind and yet be able to distinguish right from wrong with respect to a particular act.” Instruction No. 33
“Irresistible impulse is not mental irresponsibility within the meaning of the law and is no defense. An irresistible impulse, as used herein, *30is an impulse induced by, and growing out of, some mental disease affecting the volitive, as distinguished from the perceptive, powers, so that the person afflicted, while able to understand the nature and consequence of the act charged against him and to perceive that it is wrong, is unable, because of such mental disease, to resist the impulse to do it.
“It is to be distinguished from such a disease of the mind as renders a person unable to appreciate the nature and character of the act charged, and to understand whether it is right or wrong.” Instruction No. 35.
The failure to give such an instruction is not a reflection on the trial judge. It was not requested. It probably has never been given. It is suggested, for the first time in this state in this dissent, as a requirement of due process. The judge handled this trial with exceptional skill and with complete fairness to the defendant under our prevailing standards. I here merely express the view that these standards should be higher.
A considerable number of the states provide, in capital cases, for a given penalty unless the jury by its verdict imposes another. In a *31majority of these states the statute imposes the death penalty, unless the jury changes it to life imprisonment; in two states (Washington (RCW 9.48.030) and New Hampshire (Revised Laws, Chapter 455, §§ 4 and 5) the penalty is life imprisonment, unless the jury inflicts the death penalty.