ANDRES v. UNITED STATES
No. 431
Supreme Court of the United States
April 26, 1948
333 U.S. 740
Argued February 5, 1948
ANDRES v. UNITED STATES.
No. 431. Argued February 5, 1948.—Decided April 26, 1948.
Vincent A. Kleinfeld argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Quinn, Robert S. Erdahl and Philip R. Monahan.
MR. JUSTICE REED delivered the opinion of the Court.
On December 17, 1943, the petitioner, Timoteo Mariano Andres, was indicted in the United States District Court for the Territory of Hawaii for murder in the first degree.
“We, the Jury, duly empaneled and sworn in the above entitled cause, do hereby find the defendant, Timoteo Mariano Andres, guilty of murder in the first degree.”
He was sentenced to death by hanging. He appealed his conviction to the Circuit Court of Appeals for the Ninth Circuit. That court affirmed the judgment of the lower court, unanimously. 163 F. 2d 468. A petition for a writ of certiorari was filed in this Court and that petition was granted. 332 U. S. 843.
Four questions were presented in the petition for certiorari. Three of these we do not consider of sufficient doubt or importance to justify an extended discussion. We shall dispose of them before we reach what is, for us, the decisive issue of this case.
Andres contends that
It is next contended that the trial was unfair because the instructions quoted below5 indicated to the jury that the indictment against the petitioner reflected a finding by the Grand Jury that he was probably guilty of the crime of murder in the first degree. Perhaps the italicized language in the charge, read out of context, is mis-
The petitioner also argues that the District Court for the Territory of Hawaii did not have the power to sentence him to death by hanging.
Section 567 of
The First Congress of the United States provided in an Act of April 30, 1790: “That if any person or persons shall, within any fort, arsenal, dock-yard, magazine, or in any other place or district of country, under the sole and exclusive jurisdiction of the United States, commit the crime of wilful murder, such person or persons on being thereof convicted shall suffer death.”8 This was the federal law, in the respects here relevant, until 1897. In that year Congress passed and the President signed the Act of January 15, 1897.9 That statute provided:
“That in all cases where the accused is found guilty of the crime of murder or of rape under sections fifty-three hundred and thirty-nine or fifty-three hundred and forty-five, Revised Statutes, the jury may qualify their verdict by adding thereto ‘without capital punishment;’ and whenever the jury shall return a verdict qualified as aforesaid the person convicted shall be sentenced to imprisonment at hard labor for life.”
It is this language, substantially unchanged, which we must construe in this case.10
The reports of the Congressional Committees and the debates on the floor of Congress do not discuss the particular problem with which we are now concerned.11
Unanimity in jury verdicts is required where the Sixth and Seventh Amendments apply.13 In criminal cases this requirement of unanimity extends to all issues—character or degree of the crime, guilt and punishment—which are left to the jury. A verdict embodies in a single finding the conclusions by the jury upon all the questions submitted to it. We do not think that the grant of authority to the jury by § 567 to qualify their verdict permits a procedure whereby a unanimous jury must first find guilt and then a unanimous jury alleviate its rigor. Therefore, although the interpretation of § 567 urged by the Government cannot be proven erroneous with certainty, since the statute contains no language specifically requiring una-
The only question remaining for decision is whether the instructions given by the trial judge clearly conveyed to the jury a correct understanding of the statute. There was a general charge that “the unanimous agreement of the jury is necessary to a verdict.” Later, and the instructions on the specific issue under consideration can best be understood by the colloquy, the following took place:
“(At 3:45 o‘clock, p. m., the jury returned to the courtroom, and the following occurred:)
“The Court: Note the presence of the jury and the defendant together with his attorney. I am advised by the bailiff that the jury wishes to ask the Court a question. Which gentlemen [sic] is the foreman—you, Mr. Ham? You are Mr. Ham?
“The Foreman: . . . The members of the jury would like to know if a verdict of guilty in the first degree was brought in, whether it would be mandatory on the part of the Judge to sentence the man to death, or hanging, or use his own discretion.
“The Court: Just a minute. I want to be right in my answer. You may sit down. Will the counsel come to the bench, please? (Discussion off the record.)
“The Court: Gentlemen of the Jury, the statute, as I recall, answers that question, but I wanted to look at it once again before I gave you a positive answer. The answer to the question is that, in the absence of a qualified verdict, if the verdict is guilty of murder in the first degree, the Court has no discretion, for the statute provides in such event that the person so convicted of such an offense—murder in the first degree—shall suffer the punishment of death. As I told you in your instructions, there is another Federal statute which enables you gentlemen to qualify your verdict and to add, in the event you should find the person guilty of murder in the first degree, to add to that verdict, I repeat, the phrase ‘without capital punishment.’ In that event the man, of course, under the statute so convicted would not suffer the punishment of death but it would life imprisonment, as I recall it under the statute.
“Does that answer your question?
“The Foreman: Yes.
“The Court: Don‘t discuss your problems here, but if it is an answer to your question, you gentlemen can retire to your jury room if there are no other questions.
“The Foreman: No other.
“The Court: Counsel have asked me to reread the instructions to you on that particular point as an amplification of my answer to your question. Will you bear with me just a moment until I find that instruction? I will reread one or two instructions to you which bear on the question which you have asked:
“‘You may return a qualified verdict in this case by adding the words “without capital punishment” to your verdict. This power is conferred solely upon
you and in this connection the Court can not extend or prescribe to you any definite rule defining the exercise of this power, but commits the entire matter of its exercise to your judgment.’
“‘Even if you should unanimously agree from the evidence beyond all reasonable doubt that the defendant is guilty as charged, you may, as I have said, qualify your verdict by adding thereto “without capital punishment,” in which case the defendant shall not suffer the death penalty.’
“‘In this connection, I further instruct you that you are authorized to add to your verdict the words “without capital punishment,” and this you may do no matter what the evidence may be and without regard to the existence of mitigating circumstances.’
“‘And, finally, you will recall I said that you are instructed that before you may return a qualified verdict of murder in the first degree without capital punishment, that your decision to do so must, like your regular verdict, be unanimous.‘”
The Government concedes that, if the petitioner‘s interpretation of § 567 is accepted, these instructions were inadequate; and we find ourselves in agreement with this concession. The court below concluded that the instructions were proper and that they did not mislead the jury.15 It based its conclusion upon two factors: (1) the common understanding of jurors that “they are under no legal compulsion to join in a verdict with which they are in disagreement, either in whole or in part . . .“;16 and (2) the general admonition of the trial judge that “the unanimous agreement of the jury is necessary to a verdict.”17
As we are of the opinion that the instructions given on this issue did not fully protect the petitioner, the judgment of the lower court is reversed and the case is remanded for a new trial.
Reversed.
MR. JUSTICE FRANKFURTER, concurring.
Having had more difficulty than did my brethren in reaching their result, I deem it necessary to state more at length than does the Court‘s opinion the reasons that outweigh my doubts, which have not been wholly dissipated.
This case affords a striking illustration of the task cast upon courts when legislation is more ambiguous than the limits of reasonable foresight in draftsmanship justify. It also proves that when the legislative will is clouded,
For the first hundred years of the establishment of this Government one guilty of murder in the first degree, under federal law, was sentenced to death. Since 1897 a jury, after it found an accused “guilty of the crime of murder in the first degree . . . may qualify their verdict by adding thereto ‘without capital punishment;’ and whenever the jury shall return a verdict qualified as aforesaid, the person convicted shall be sentenced to imprisonment for life.” Act of January 15, 1897, 29 Stat. 487, as amended, 35 Stat. 1151, 1152, § 330 Criminal Code,
The statute reflects the movement, active during the nineteenth century, against the death sentence. The movement was impelled both by ethical and humanitarian arguments against capital punishment, as well as by the practical consideration that jurors were reluctant to bring in verdicts which inevitably called for its infliction. Almost every State passed mitigating legislation.1 Only five States met the doubts and disquietudes about capital punishment by its abolition. Most of the other States placed in the jury‘s hands some power to relieve from a death sentence. But the scope of a jury‘s power to save one found guilty of murder in the first degree from a death sentence is bound to give rise to a problem of statutory construction when the legislation does not define the power with explicitness.
A legislature which seeks to retain capital punishment as a policy but does not make its imposition after a find-
(1) Legislation may leave with the jury the duty of finding an accused guilty of murder in the first degree but give them the right of remission of the death sentence, provided there is unanimous agreement on such remission. Any juror, of course, has it in his power to deadlock a jury out of sheer wilfulness or unreasonable obstinacy. But under such a statute the duty laid upon his conscience is to find guilt if there is guilt. The jury can save an accused from death only if they can reach a unanimous agreement to relieve from the doom.
(2) The legislature may not require unanimous agreement on remission of the death sentence, but may make such remission effective by a majority vote of the jury, or, as in the case of the Mississippi statute, it may expressly provide that
“Every person who shall be convicted of murder shall suffer death, unless the jury rendering the verdict shall fix the punishment at imprisonment in the penitentiary for the life of the convict; or unless the jury shall certify its disagreement as to the punishment . . . in which case the court shall fix the punishment at imprisonment for life.” (
Miss. Code Ann. § 2217 (1942) .)
(3) The legislature may require the jury to specify the punishment in their verdict. Under such legislation it is necessary for the jury‘s verdict not only to pronounce guilt but also to prescribe the sentence.
(4) The jury may be authorized to qualify the traditional verdict of guilty so as to enable the court to impose a sentence other than death. This may be accomplished by giving such discretionary power to the court simpliciter, or upon recommendation of mercy by the jury.
“In all cases where the accused is found guilty of the crime of murder in the first degree, or rape, the jury may qualify their verdict by adding thereto ‘without capital punishment;’ and whenever the jury shall return a verdict qualified as aforesaid, the person convicted shall be sentenced to imprisonment for life.” (29 Stat. 487, as amended, 35 Stat. 1151, 1152, § 330 Criminal Code,
18 U. S. C. § 567 .)
The fair spontaneous reading of this provision, in connection with § 275 of the Criminal Code—“Every person guilty of murder in the first degree shall suffer death.” (35 Stat. 1143,
Moreover, we are dealing with a field much closer to the experience of the State courts, as the guardians of those deep interests of society which are reflected in legislation dealing with the punishment for murder and which are predominantly the concern of the States.2 If the
And so we turn to State law.
A. In only four States is death the inevitable penalty for murder in the first degree: Connecticut, Massachusetts, North Carolina, and Vermont. Such has been, until the other day, the law of England despite persistent and impressive efforts to modify it. See, e. g., Minutes of Evidence and Report of the Select Committee on Capital Punishment (1930). It is worthy of note that this effort has just prevailed by the passage, on a free vote, of a provision abolishing the death penalty for an experimental period of five years. See 449 H. C. Deb. (Hansard) cls. 981 et seq. (April 14, 1948), and statement of the Home Secretary that death sentences will be suspended on the basis of this vote, even before the measure
B. In five States the death sentence has been abolished for murder in the first degree: Maine, Michigan, Minnesota, Rhode Island, and Wisconsin.
C. Most of the States—39 of them—leave scope for withholding the death sentence. The State enactments greatly vary as to the extent of this power of alleviation and in the manner of its exercise, as between court and jury.
I. In three States a jury‘s recommendation of life imprisonment is not binding on the trial court: Delaware, New Mexico, and Utah.
II. In fifteen States the jury‘s verdict must specify whether the sentence is to be death or life imprisonment: Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, Kentucky, Missouri, North Dakota, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, and Virginia.
III. In eight other States the same result is reached, although the legislation is phrased that one found guilty of murder in the first degree suffers death or life imprisonment “at the discretion of the jury“: Alabama, Arizona, California, Georgia, Idaho, Montana, Nebraska, and Nevada.
IV. In two States the punishment is life imprisonment unless the jury specifies the death penalty: New Hampshire and Washington.
V. Nine States have statutes more or less like the federal provision here under consideration: Louisiana, Maryland, New Jersey, New York, Ohio, Oregon, South Carolina, West Virginia, and Wyoming.
VI. Two States frankly recognize that differences of opinion are likely to occur when the jury has power to mitigate the death sentence and provide for life imprisonment even when the jury is not unanimous: Florida and Mississippi.
Of the nine States that have enacted legislation more or less like the federal provision under consideration, the statutes of four—Louisiana, Maryland, West Virginia, and Wyoming—are virtually in the identical form. While the highest courts of these States have not passed upon the precise question before us, they have all construed their respective statutes as giving the jury a free choice as to which of the two alternative punishments are to be imposed, although it can fairly be said that such construction runs counter to the obvious reading that the sentence is death unless all of the jurors are agreed as to adding “without capital punishment.”3 Three of the nine
“There cannot be any recommendation unless the twelve of you agree. But if you have all agreed that the defendant is guilty, it is nevertheless your duty to report that verdict to the Court. Is that clear? Even though you cannot agree on the recommendation. In other words, you cannot use the
recommendation as bait, in determining the guilt or innocence of the defendant. . . . if you are all unanimous that there should be a recommendation, it is your duty to bring in the recommendation; but if you are not unanimous on that proposition it is nevertheless your duty to bring in the verdict of guilty of murder in the first degree, even though you cannot agree on the other. Is that plain?” (287 N. Y. at 167-68.)
The Court of Appeals held that the statute expressly empowered the jury to make a life-imprisonment recommendation a part of their verdict; that it did not expressly, or by implication, require the jury to render a verdict of guilty without the recommendation where they were not all agreed upon so doing; that, until the jury reached agreement on every part of their verdict, they had not agreed upon the verdict; that in such cases the legislature required the jury to determine
“First, whether the accused is guilty of the crime charged; second, whether the sentence shall be death or whether the trial judge may pronounce a sentence of life imprisonment. Both questions must be determined by the jury, and the jury‘s answer to both questions must be embodied in its verdict. A juror considering the question of whether an accused is guilty of the crime charged can no longer be influenced consciously or unconsciously by knowledge that the finding of guilt of the crime charged will entail a mandatory penalty which in his opinion is not justified by the degree of moral guilt of the accused. Each juror should now know that the finding of guilt does not carry that mandatory penalty unless the jury fails to make a recommendation of life imprisonment a part of the verdict and each juror should know that he is one of the twelve judges who shall decide what the verdict shall be in all its parts.
Until the twelve judges have agreed on every part of the verdict they have not agreed on any verdict.” (Id. at 171.)
And so we reach the real question of this case. Should a federal jury report as their verdict that part of their deliberations which resulted in the finding of guilt of first degree murder if they cannot agree on the alleviating qualification, or should they be advised that their disagreement on the question of appropriate punishment may conscientiously be adhered to so that, if there be no likelihood of an agreement after making such an effort as is due from a conscientious jury, there would be no escape from reporting disagreement. After considerable doubt, as I have indicated, I find that the weight of considerations lies with giving the jury the wider power which the Court‘s construction affords.
“The decisions in the highest courts of the several States under similar statutes are not entirely harmonious, but the general current of opinion appears to be in accord with our conclusion.” Winston v. United States, supra, at p. 313. The fair significance to be drawn from State legislation and the practical construction given to it is that it places into the jury‘s hands the determination whether the sentence is to be death or life imprisonment,6 and, since that is the jury‘s responsibility, it is for them to decide whether death should or should not be the consequence of their finding that the accused is guilty of murder in the first degree. Since the determination of the sentence is thus, in effect, a part of their verdict, there must be accord by the entire jury in reaching the full content of the verdict.
To avoid reversal on appeal, trial judges err, as they should, on the side of caution. But caution often seeks shelter in meaningless abstractions devoid of guiding concreteness. Clarity certainly does not require a broad hint to a juror that he can hang the jury if he cannot have his way in regard to the power given to him by Congress in determining the sentence of one guilty of first-degree murder. On the other hand, conscientious jurors are not likely to derive clear guidance if told that “on both guilt and punishment [they] must be unanimous before any verdict can be found.” They should be told in simple, colloquial English that they are under duty to come to an agreement if at all possible within conscience, for a verdict must be unanimous; that a verdict involves a determination not only of guilt but also of the punishment that is to follow upon a finding of guilt; that the verdict as to both guilt and punishment is single and indivisible; that if they cannot reach agreement regarding the sentence that should follow a finding of guilt, they cannot render a ver-dict; and this means that they must be unanimous in determining whether the sentence should be death, which would follow as a matter of course if they bring in a verdict that “the accused is found guilty of the crime of murder in the first degree,” and they must be equally unanimous if they do not wish a finding of guilt to be followed by a death sentence, which they must express by a finding of guilt “without capital punishment.”
MR. JUSTICE BURTON concurs in this opinion.
State legislation concerning the punishment for first degree murder.*
A. Death penalty mandatory:
Conn. Gen. Stat. § 6044 (1930) .Mass. Gen. Laws c. 265, § 2 (1932) .N. C. Code Ann. § 4200 (1939) .Vt. Pub. Laws § 8376 (1933) .
B. Death penalty abolished:
Me. Rev. Stat. c. 117, § 1 (1944) .Mich. Stat. Ann. § 28.548 (1938) .Minn. Stat. § 619.07 (1945) .R. I. Gen. Laws c. 606, § 2 (1938) (penalty for murder in first degree is life imprisonment unless person is under life imprisonment sentence at time of conviction).Wis. Stat. § 340.02 (1945) .
C. Death penalty not mandatory:
- States where jury recommendation of life imprisonment is not binding on trial court:
Del. Rev. Code § 5330 (1935) .N. M. Stat. Ann. § 105-2226 (1929) .Utah Rev. Stat. Ann. § 103-28-4 (1933) .
*It is appropriate to give warning that the meaning attributed to some of the statutes by this classification does not have the benefit of guiding State adjudication. The ascertainment of the proper construction of a State statute when there is not a clear ruling by the highest court of that State is treacherous business. Nor can one be wholly confident that he has found the latest form of State legislation.
- States where jury‘s verdict must specify whether the sentence is to be death or life imprisonment:
Ark. Dig. Stat. § 4042 (1937) (as interpreted by the courts).Colo. Stat. Ann. c. 48, § 32 (1935) .Ill. Ann. Stat. c. 38, § 360 (1935) .Ind. Ann. Stat. §§ 10-3401 and 9-1819 (Burns 1942) .Iowa Code § 12911 (1939) .Kan. Gen. Stat. Ann. § 21-403 (1935) .Ky. Rev. Stat. Ann. §§ 435.010 and 431.130 .Mo. Rev. Stat. Ann. § 4378 (1939) (as interpreted by the courts).N. D. Comp. Laws Ann. § 9477 (1913) .Okla. Stat. Ann. tit. 21, § 707 (1937) .Pa. Stat. Ann. tit. 18, § 4701 (1945) .S. D. Sess. Laws 1939, c. 30, amending S. D. Code § 13.2012 (1939) (but even if jury specifies death sentence, court “may nevertheless pronounce judgment of life imprisonment“).Tenn. Code Ann. § 10772 (Williams 1934) .Tex. Pen. Code Ann. art. 1257 (1936) . (“The punishment for murder shall be death or confinement in the penitentiary for life or for any term of years not less than two.“—Courts have interpreted statute as requiring jury to specify penalty.)Va. Code Ann. § 4394 (1936) (as interpreted by the courts).
- States where sentence of death or life imprisonment is at the discretion of the jury:
Ala. Code Ann. tit. 14, § 318 (1940) .Ariz. Code Ann. § 43-2903 (1939) .Cal. Pen. Code § 190 (1941) .Ga. Code Ann. § 26-1005 (1936) .Idaho Code Ann. § 17-1104 (1932) .Mont. Rev. Code Ann. § 10957 (1935) .Neb. Rev. Stat. § 28-401 (1943) .Nev. Comp. Laws Ann. § 10068 (1929) .
- States where the punishment is life imprisonment unless the jury specifies the death penalty:
N. H. Rev. Laws c. 455, § 4 (1942) .Wash. Rev. Stat. Ann. § 2392 (1932) .
- States that have statutes more or less like the federal provision under consideration:
La. Code Crim. Law & Proc. Ann. art. 409 (1943) .Md. Ann. Code Gen. Laws art. 27, § 481 (1939) .N. J. Stat. Ann. § 2:138-4 (1939) .N. Y. Crim. Code and Pen. Law § 1045-a .Ohio Gen. Code Ann. § 12400 (1939) .Ore. Comp. Laws Ann. § 23-411 (1940) .S. C. Code Ann. § 1102 (1942) .W. Va. Code Ann. § 6204 (1943) .Wyo. Comp. Stat. Ann. § 9-201 (1945) .
- States that give effect to jury recommendation for life imprisonment even when jury is not unanimous in making that recommendation:
Fla. Stat. Ann. § 919.23 (1944) . (“Whoever is convicted of a capital offense and recommended to the mercy of the court by a majority of the jury in their verdict, shall be sentenced to imprisonment for life.“)Miss. Code Ann. § 2217 (1942) . (“Every person who shall be convicted of murder shall suffer death, unless the jury rendering the verdict shall fix the punishment at imprisonment in the penitentiary for the life of the convict; or unless the jury shall certify its disagreement as to the punishment . . . in which case the court shall fix the punishment at imprisonment for life.“)
Notes
I am indebted for these statistics to the Administrative Office of the United States Courts.
“The right to qualify a verdict of guilty, by adding the words ‘without capital punishment,’ is thus conferred upon the jury in all cases of murder. The act does not itself prescribe, nor authorize the court to prescribe, any rule defining or circumscribing the exercise of this right; but commits the whole matter of its exercise to the judgment and the consciences of the jury. The authority of the jury to decide that the accused shall not be punished capitally is not limited to cases in which the court, or the jury, is of opinion that there are palliating or mitigating circumstances. But it extends to every case in which, upon a view of the whole evidence, the jury is of opinion that it would not be just or wise to impose capital punishment. How far considerations of age, sex, ignorance, illness or intoxication, of human passion or weakness, of sympathy or clemency, or the irrevocableness of an executed sentence of death, or an apprehension that explanatory facts may exist which have not been brought to light, or any other consideration whatever, should be allowed weight in deciding the question whether the accused should or should not be capitally punished, is committed by the act of Congress to the sound discretion of the jury, and of the jury alone.” The Supreme Court of Louisiana noted that “in capital cases, it is entirely left to the jury to determine the extent of the punishment in the event of conviction. The jurors, in such cases, are entirely free to choose between a qualified and an unqualified verdict, because the law gives them the unquestioned discretion to return either one or the other.” State v. Henry, 196 La. 217, 233. The Court of Appeals of Maryland held that “In our opinion, it was the
“I instruct you, gentlemen of the jury that even if you should unanimously agree from the evidence beyond all reasonable doubt that the defendant is guilty as charged, you may qualify your verdict by adding thereto ‘without capital punishment’ in which case the defendant shall not suffer the death penalty.
“In this connection, I further instruct you that you are authorized to add to your verdict the words ‘without capital punishment,’ and this you may do no matter what the evidence may be and without regard to the existence of mitigating circumstances.”
While the judges of the Supreme Court of Ohio differed in their views as to whether the jury in making the recommendation were restricted to considerations based upon the evidence, they were in agreement that the statute gave the jury full and exclusive discretion as to whether or not to make the recommendation. Howell v. State, 102 Ohio St. 411. In Oregon and South Carolina it is sufficient to charge the jury that they may bring in either verdict. State v. Hecker, 109 Ore. 520, 559-60; State v. McLaughlin, 208 S. C. 462, 468.
“When the indictment was returned by the grand jury against this defendant, the defendant had had no opportunity to present his side of the case. The indictment was found by the grand jury upon evidence presented to it by the Government alone, and created in the minds of the grand jury a belief that it was probable that a crime had been committed and that this defendant probably committed that crime.
”Upon the evidence [which] it heard, the grand jury indicted this defendant, thereby indicating that it was probable that a crime had been committed, which should be disposed of in this court where both sides could be heard, and this is the stage which we have now reached.
“I advise you, gentlemen, that it is the indictment in this case which frames the issues of the case.”
Petitioner complains of the italicized language.
Prior to 1916 the death penalty was mandatory in New Jersey. In that year the State legislature amended the law by the enactment of the jury recommendation form of statute. In 1919 the New Jersey Court of Errors and Appeals construed the statute to give the jury absolute discretion to bring in either verdict, and, by a close decision, held that the jury was not confined to the evidence in determining whether or not to make the recommendation. State v. Martin, 92 N. J. L. 436. That same year the legislature enacted into law the views of the dissenting judges requiring that the jury must make the recommendation “by its verdict, and as a part thereof, upon and after the consideration of all the evidence.”
Indeed, we said in the Winston case that Congress by the Act of 1897 established the “simple and flexible rule of conferring upon the jury, in every case of murder, the right of deciding whether it shall be punished by death or by imprisonment.” 172 U. S. at 312.
H. R. 3190, 80th Cong., 1st Sess., § 1111 (b), as passed by the House on May 12, 1947, 93 Cong. Rec. 5049.
See id. at 5048; Hearings before Subcommittee No. 1 of the House Committee on the Judiciary on H. R. 1600 and H. R. 2055, 80th Cong., 1st Sess., pp. 33-35. It is interesting to note that the proposed revision itself contains most of the different forms by which legislatures have retained capital punishment as a penalty for the commission of certain crimes but have not made its imposition mandatory upon a finding of guilty. E. g.,
The various Governmental agencies are apt to see decisions adverse to them from the point of view of their limited preoccupation and too often are eager to seek review from adverse decisions which should stop with the lower courts. The Solicitor General,
however, must take a comprehensive view in determining when certiorari should be sought. He is therefore under special responsibility, as occupants of the Solicitor General‘s office have recognized, to resist importunities for review by the agencies, when for divers reasons unrelated to the merits of a decision, review ought not to be sought. The circumstances of the Smith case present a special situation, and the intention to carry the implication of “acquiescence” beyond such special circumstances is emphatically disavowed.
The jury was instructed that “before you may return a qualified verdict of murder in the first degree without capital punishment that your decision to do so must be unanimous.” By and of itself this instruction was consonant with either construction of the statute. If the jury had also been instructed either that “before you may return a verdict of murder in the first degree your decision not to add the qualification ‘without capital punishment’ must be unanimous” or that “if you are all agreed that the defendant is guilty but you are not all agreed to add ‘without capital punishment’ you must return a verdict of murder in the first degree without the qualification,” they would have known which construction of the statute the trial judge adopted, and so would we.