OPINION
This is а habeas corpus proceeding brought under the provisions of Article 11.07, Vernon’s Ann.C.C.P., as amended (Acts 1967, 60th Leg., Ch. 659, p. 1734, eff. Aug. 28, 1967). The petitioner seeks to set aside as void his 1965 conviction fоr murder where the penalty imposed was death. Such conviction was affirmed by this Court in
On July 11, 1968, a habeas corpus petition was presented to the convicting court pursuant to the provisions of Article 11.07,
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supra, and in compliance with the Order of the United States District Court, Southern District of Texas, Houston Division, remanding applicant’s Federal Petition for Habeas Corpus to the state trial court for determination of the issue of- petitioner’s mental competency to stand trial in 1965 in light of the decisions of this Court in Townsend v. State,
The cоnvicting court refused to entertain the habeas corpus petition and denied the same without a hearing.
On July 12, 1968, the petitioner presented another habeas corpus petition to the convicting court contending, among other things, that the jury which imposed the death penalty upon him was selected in violation of the doctrine of Witherspoon v. State of Illinois,
The judge of the convicting court, who also was the trial judge at petitioner’s trial, entered findings of fact in accordance with the stipulation, but concluded that the jury was selected in compliance with Articles 35.15, 35.16, and 35.17, V.A.C.C.P. These articles did not become effective until January 1, 1966, which was after the date of petitioner’s trial. Obviously, the judge meant to refer to the statutory provisions for sеlecting jurors in capital cases under the former Code. The record of such habeas corpus proceedings was transmitted to this Court. See Ex parte Young, Tex.Cr.App.,
The petitioner has now filed a new habeas corpus petition in this Court seeking to invoke our original jurisdiction under the procedure authorized in Ex parte Young, supra, raising both the mental competency and jury selection issues. Such new petition was utilized to invoke our original jurisdiction as to the mental competency question since the conviсting court denied the petition presented to it on July 11 without a hearing, Ex parte Young at p. 830, but was unnecessary as to the jury selection question where the petitioner was aсcorded a hearing. Nevertheless, these matters have been consolidated, docketed, and submitted and will be considered together.
In Witherspoon v. State of Illinois, supra, the Supreme Court held that due process voided a death sentence imposed by a jury from which were • excluded all persons expressing general objections to or conscientious or religious scruples against capital punishment.
The holding is clarified to some extent by Mr. Justice Stewart, who delivered the majority opinion, when he wrote:
“Thе issue before us is a narrow one. It does not involve the right of the pros *125 ecution to challenge for cause those prospective jurors who state that their reservаtions about capital punishment would prevent them from making an impartial decision as to the defendant’s guilt. Nor does it involve the State’s assertion of a right to exclude from thе jury in a capital case those who say that they could never vote to impose the death penalty or that they would refuse even to consider its imposition in the case before them.” See also footnote 21 of said majority opinion.
Further, in footnote 9 of the Wither-spoon opinion the Court said in part:
“ * * * it cannot be assumed that a juror who describes himself as having ‘conscientious or religious scruples’ against the infliction of the death penalty or against its infliction ‘in a proper case’ (see People v. Bandhauer,66 Cal.2d 524 , 531,58 Cal.Rptr. 332 , 337,426 P.2d 900 , 905) thereby affirms that he could never vote in favor of it or that he would not consider doing so in the case before him. See also the voir dire in Rhea v. State,63 Neb. 461 , 466-168,88 N.W. 789 , 790. Cf. State v. Williams,50 Nev. 271 , 278,257 P. 619 , 621. Obviously many jurors ‘could, notwithstanding thеir conscientious scruples [against capital punishment], return * * * [a] verdict [of death] and * * * make their scruples subservient to their duty as jurors.’ Stratton v. People,5 Colo. 276 , 277. Cf. Commonwealth v. Henderson,242 Pa. 372 , 377,89 A. 567 , 569. Yet such jurors have frequently been deemed unfit to serve in a capital case. See e. g., Rhea v. State, supra,63 Neb., at 470 — 171,88 N.W., at 791-792 . See generally, W. Oberer, Does Disqualification of Jurors for Scruples Against Capital Punishment Constitute Denial of Fair Trial on Issue of Guilt?, 39 Tex.L.Rev. 545, 547-548 (1961); Comment, 1968 Duke L.J. 283, 295-299.
“The critical question, of course, is not how the phrases employed in this area have been construed by courts and commentators. What matters is how they might be understood — or misunderstood —by prospective jurors. Any ‘layman * * * [might] say he has scruples if he is somewhat unhappy about death sentences. * * * [Thus] a general question as to the presence of * * * reservations [or scruples] is far from the inquiry which separates those who would never vote for the ultimate penalty from those who would reserve it for the direst cases.’ Id., at 308-309. Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishmеnt no matter what the trial might reveal, it simply cannot be assumed that that is his position.”
It is clear from the stipulation and the findings of the trial court that the jury in petitioner’s case was selеcted in violation of Witherspoon, and that a substantial number of the jury panel was “excluded without any effort to find out whether their scruples would invariably compel them to vote against capital punishment.” With-erspoon at
In Witherspoon, despite the рetitioner’s contentions to the contrary, the Court found the data adduced “too tentative and fragmentary to establish jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt.” Thus the Court refused to adopt a per se constitutional rule requiring the reversal of every conviction returned by a jury sеlected as was the one in Witherspoon. Such holding raises the possibility of holding a separate hearing on punishment at this time in the case at bar in order that the requirements of Witherspoon be met.
However, it is observed that petitioner’s one stage 1965 trial was conducted prior to the effective date of the 1965 Code of Criminal Procedure аnd to the 1967 amendment to Article 37.07, V.A.C.C.P., authorizing for the first time bifurcated
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trials in capital cases where the State is seeking the death penalty. As to the trial of such capital cаses under the said 1965 Code prior to said 1967 amendment, see Rojas v. State, Tex.Cr.App.,
Even if the case at bar had been tried under the provisions of Article 37.07, supra, “this Court is without authority tо direct a new trial before a different jury on the issue of punishment only.” Ellison v. State, Tex.Cr.App.,
In the event of a new trial the district court’s attention with regard to petitioner’s competency to stand trial is directed to Pate v. Robinson,
The relief prayed for is granted, the petitioner is ordered remanded to the Sheriff of Fort Bend County to answer the indictment in Cause No. 8450 in the 24th District Court.
It is so ordered.