*1 lеgislature a procedural amend rule. Missouri, Respondent, STATE of nothing find in our Constitution which provides, as the principal now re- opinion BATTLE, Henry Appellant. Thomas quires, that legislative action “must refer No. 63436. expressly to the a requirement rule.” Such only not limits or the power constricts Missouri, Court Supreme Assembly but, view, General an my En Banc. unwarranted extension of rule making 22, 1983. Nov. power of this Court as granted by the Con- stitution. Denied Dec. Rehearing case,
If governs Rule 127.05 the instant as principal opinion holds, then it would
seem to follow unlimited hearing
conducted and parties that the are entitled present all any and evidence bearing
the question before the Court. other
words, a de would, novo hearing, which
the principal opinion notes, be counter-pro-
ductive the commissioner scheme.
ON REHEARING
PER CURIAM. respondent’s rehearing motion for
suggests that hearing a court which con-
forms specifications of our opinion already so,
has been held. If the papers
before us do not respondent show it. The
in complying our mandate may make
use of any prior proceedings in the case so
long as there is a record permit sufficient to
ordinary appellate review, may enter
final appealable judgment when satis-
fied relator has been afforded the
opportunity to present her contentions as in our
described opinion.
The motion for rehearing is denied.
RENDLEN, C.J., WELLIVER, HIG-
GINS, GUNN, BLACKMAR and DON-
NELLY, JJ., concur.
BILLINGS, J., dissents. *2 Louis, Fredman, appel- for
Mark S. St. lant. Ashcroft, Gen., M. Mor-
John John Atty. ris, Gen., City, Atty. Asst. Jefferson rеspondent.
BILLINGS, Judge. Henry
Defendant Thomas Battle for the and sentenced to death convicted woman. capital 80-year-old violates He contends death sentence Constitution, state- inculpatory Missouri tainted and unconstitutionally ments were trial, trial court admitted improperly at and in- process erred in the selection court should jury, structions the trial during a “hung jury” have declared trial, and, lastly, penalty phase aside because death sentence should be set pas- influence of imposed it was under the disproportionate. sion and excessive affirm. We in her Johnson, Miss Birdie lived alone Defend- ground apartment. Louis floor St. murder, ant, 18-years-old the time apart- parents nearby lived with his in a defendant, called ment. From time time Johnson, per- “Sweetboy” by Miss jobs elderly lady. formed odd July About 2:30 3:00 a.m. of in de- Tracy Rowan wound; “drinking couple stab fendant’s bedroom shock caused extreme loss getting high.” sug- beers and pooling blood and of two-thirds of the gested they burglarize Miss Johnson’s body’s supply right total in the chest blood apartment. They walked over to the tar- cavity.
geted apartment entry and gained rejected defend previously We have *3 atop fence, a climbing ripping screen sentence ant’s contention the death window, from an kitchen and open climbing right provision violates the “natural to life” through the window. led Defendant I, 2, Art. Mo. expressed in Const. § he way and as went the kitchen through he Williams, State S.W.2d 102 picked up a twelve-inch butcher knife. Bolder, There was evidence substantial from banc), denied, - U.S. -, cert. which the find defendant 770, v. New L.Ed.2d companion Johnson, and raped his Miss lon, banc), brutally beaten, she was apartment and the 185, was for money ransacked and valuables. (1982). point denied. When light, Rowan turned on a defendant Defendant in- avers admissions and announced, in presence, Miss Johnson’s criminating statements he on a cas- made she would have to die she because had seen tape recording tape sette and video should them. Defendant stabbing commenced have court suppressed naked, elderly, beaten and ravished woman because they resulted from violations with the butcher knife. Because knife police guarantees constitutional kept bending, finally plunged defendant Arizona, 436, found Miranda 384 U.S. face, blade just into Miss Johnson’s under (1966), and alive, her left eye. She was still with the Arizona, Edwards v. knife protruding face, from “talking her Further, con- L.Ed.2d and saying short prayers”, when defendant circumstances, totality of sidering the and Rovran exited the apartment by way of guilt his admissions and confessions of the kitchen window. involuntary. coerced and rendered a.m., Sometime between and 3:00 4:00 The trial evi- lengthy court conducted Miss upstairs Johnson’s neighbor was awak- dentiary hearing on motion to defendant’s ened by knocking coming sounds from suppress his incriminating statements.1 downstairs. The neighbor went down to Defendant, response leading questions Miss apartment Johnson’s and when she by his testified that before the attorney, heard Johnson Miss calling, broke front tape cassette and video statements were door and bleeding, aged entered. The vic- made interrogating that he asked the offi- tim sitting floor, was naked on the with the cers if he answer and if he questions had to butcher knife her sticking eye out of socket. lawyer, ignored could see a but the officers Police an and ambulance were called. Miss his him inquiries question and continued to Johnson was awake and alert but suffering tapes. and make the from shock when she was taken to a hospi- tal. at She died 5:45 a.m. Death suppression was evidence at the State’s attributed to the following combination of follows: the course hearing During was as injuries: bruising severe trauma and of her of Miss investigation of the murder head, resulting in cranial hemorrhaging; police Johnson the received information multiple bruises аnd contusions to her person Elroy might face that a named Preston body; multiple and and picked up incisions lacerations have been Preston involved. was knife; he, to her 15, 1980, chest back from the eight July and told officers defend- fractures; ant, rib multiple lacerations of the Rowan out drink- Tracy had been lung; injury from the brain the facial of the To check the time murder. suppress day. motion Defendant’s was also di- and a statement made the next The trial prior tapings suppressed. rected to statements made court ordered these statements thereafter, de- alibi, Shortly to locate winter. attempted previous
Preston’s officers “Man, day. got defendant the same I’ve to tell the fendant said: a message not at home and the officers left agreed He thing.” truth about La- parents with his for him to call them. He was tape make a recorded statement. ter in the one of day, telephoned form which a written Miranda waiver given willing the officers and told him he was read, warning, signed initialed each talk to them the next cooperate and would beginning At the p.m. at 12:35 if him morning pick up. someone could advised of his again statement he was taped waived these rights again Miranda next Between 9:30 and 10:00 a.m. the Rowan had He admitted he and rights. morning, Scaggs Detective drove July apartment but picked up. home and him broken into Miss Johnson’s by defendant’s a.m., Riley, At 10:30 Detec- his Sergeant about the murder was committed stated began tive Scaggs and two other officers knowledge partic- companion without *4 interviewing defendant in the homicide of- account of Noting defendant’s ipation. fice.2 The officers testified that at this and at was inconsistent happened what time a in the suspect defendant was not incredible, challenged Sergeant Riley times and not under arrest. As the was tape When the aspects. in various story officers about Pre- talked defendant sides, Sergеant Riley stopped change was ston’s he became nervous- story, visibly up a man “You’ve been told defendant: and a small he had fidgeting twisting towel a real man don’t be point. Why you this with him. minutes after the About fifteen De- what went down.” exactly and tell commenced, interview defendant leaned he then con- agreed to do so and fendant legs back in his chair with his outstretched. the murder of Miss Johnson. fessed to Sergeant pat- noticed that the tread Riley tape statement had After the cassette like tern on defendant’s tennis shoes looked defend- completed, the officers asked been scene, a at the murder a shоeprint found video give if would his statement on ant he Sergeant Riley had photograph of which Enroute to the video tape. agreed. He and Riley before him. halted the interview studio, given was and ate taping defendant rights. Miranda advised defendant of his a drink. two sandwiches and drank soft a rights signed Defendant waived those and p.m. at 2:17 tape The video commenced and vol- fingerprinted written consent to be and waived his given defendant was Again, surrendered his tennis shoes. untarily his admission rights. repeated Miranda He finger- an hour after the Approximately he murdered Miss Johnson. that de- printing process completed, had been that аt no time was The officers testified fendant was returned to the homicide room threatened, or made any defendant coerced him, where that his Riley correctly, told theBy his statements. regarding promises shoes had been found to palm print and the de- completed was tape time the video and shoe discover- palm print print match waived his given and fendant had after the apartment ed in Miss Johnson’s times3 and rights Miranda four different par- any murder. Defendant at first denied attorney any at request made no ticipation in murder and claimed he had time.4 not been in the victim’s house since Departmental policy prohibits room and made further state- interview- the homicide
2. regarding person by single crime. The offi- details of the of a officer. ments testimony conflicting as to whether cers’ was Rowan, morning, July following 3. who again before this Miranda -ized defendant custody, requested investigating was in officers event, sup- any the trial court statement. Rowan, speaking come to his cell. After July pressed statements of defendant’s approached cell to see the officers defendant’s point clarify At in his 4.Defendant testified at trial. no if he would certain details. Before the testify anything, that he asked the “I examination did he officers said told them: questions long night if he had to answer their made a distance call to God last ... officers thing straight.” again to a get the officers if he could see or talk and I want to He asked tapes. lawyer making denied He He was taken back to before admitted the murder. In our part review the trial court’s determi- ant’s contention overlooks that nation of defendant’s to suppress motion Witherspoon declares veniremen must tape tape, cassette and the weight video be willing penalties to consider all of the of the credibility evidence and of the wit- provided irrevocably law not be questions nesses are trial сourt’s against penal- committed to vote the death resolution and we are not confined to de- ty regardless of the facts and circumstances fendant’s version of the facts. Further- might at presented trial. more, we are not to the rulings disturb 521-22 n. S.Ct. at 1776-77 n. 20.
the trial court where
supported
it
carefully
We have
examined
entire
substantial evidence.
v. Boggs,
Fannon—by
examination of venireman
prosecutor,
attorney,
the defense
and the
Baker,
court.
of religious
He stated
because
beliefs he
not sit in
judgment
could
an-
impose
other man
never
the record in
On
this case we find no
case,
regardless
error in the admission of the cassette tape
When
equivocated
circumstances.
he
tape.
video
The testimony of the offi
some extent
in voir
dire
defendant’s
cers, the execution of the
warning
waiver
attorney,
judge
the trial
asked:
form,
the transcripts of
tapes,
both
you
“...
saying
Court:
no
[A]re
clearly
defendant’s
show
testimony
you
case would
ever
consider
*5
was given multiple
warnings
Miranda
you
penalty, would
be able
consider
repeatedly waived them. On defendant’s
it? Are
that
you saying
you
or are
not
attack,
second
prong
the totality
that
that?
saying
the
coercion,
circumstances demonstrate
Fannon:
I don’t
I
Yeah.
think would.
there is substantial
to negate
evidence
this
mean—
charge. Defendant
completed
the
case,
Court:
no
no case in
There’s
there’s
eighth
school,
grade in
no stranger
was
impos-
which
would ever
you
consider
police
food,
questioning, was not denied
that
ing
penalty,
the death
is
what
not threatened or
made
before
promises
you’re saying?
making
taped
statements. We are of
Fannon: Yeah.
opinion
that
its
State carried
burden
venireman
Viewing
testimony of
of proving the
voluntariness
the defend
whole,
Fannon as a
we do not find
trial
ant’s incriminating
by prepon
statements
a
court abused its broad discretion
сonclud
Flowers,
derance of the evidence
v.
[State
juror
automati
prospective
this
would
(Mo.
592
167
1979)]
S.W.2d
banc
and the
re
cally
against capital punishment
vote
trial court did not abuse its discretion in
gardless
Stokes,
v.
of the evidence. State
ruling
See,
them voluntary.
State v. Fle
715,
(Mo.
1982),
722
638 S.W.2d
banc
cert.
noid,
(Mo.
1982).
642
631
S.W.2d
banc
-
denied,
1263,
-,
103
75
U.S.
S.Ct.
assigns
Defendant
error the
as
Garrett,
L.Ed.2d
627
State v.
striking
court’s
for cause venireman Fan-
(Mo.
635,
banc),
S.W.2d
cert.
non,
such
suggesting
action violates the rule
208,
S.Ct.
Illinois,
of Witherspoon
510,
v.
391 U.S.
(1982).
1770,
(1968).
L.Ed.2d 776
We rec
ognize
Witherspoon
that
that
also
“Wither-
poten
argues
holds
that
Defendant
jurors
tial
cannot
spooning”
jury panel
resulting
be excused for cause
and the
merely
objections
on the basis of general
categori
exeusal of seven veniremen who
or religious scruples regarding capital pun
cally
consider the
sentence
refused to
alternative,
ishment but are of the
opinion
punishment
defend-
a
violated his
he,
murdering Miss Johnson.
said
testified that Rowan told
killed
He
Rowan
him Preston
apartment
and Preston entered but that he
Miss
Preston told him that Rowan
Johnson and
left when Miss Johnson
He
killed
awakened.
also
her.
upon
right
by jury
stating they
agree
to trial
selected from a fair
unable to
two
Less than
hours later
community, citing Tay punishment.
cross-section of the
that a
requested
counsel for defendant
Louisiana,
522,
692,
lor v.
419 U.S.
95 S.Ct.
“hung jury”
by
be declared
court and
(1975),
v.
and Duren Missou
life imprisonment.
defendant sentenced to
ri,
357,
664,
paragraphs gave and the court the same. court, trial view so. properly the and our We find no evidence in the record to sup the to be meted considering punishment port mitigating the three stricken circum jury murder case the capital out in this stances. consider all of they been instructed argument
After additional evidence and
in a
the evidence which had been offered
trial,
of
the
punishment stage
days
at the
the
five
and
trial which had consumed
pun-
the
of
jury
nights.
recognized
retired to consider
matter
have
three
We
timе
p.m. They
given
non-capital
length
ishment at 5:40
cases the
of
even in
death,
three forms of
a sentence of
to deliber
jury
permitted
verdict:
that a
should be
the
largely
matter
within
imprisonment,
very
sentence of life
and one
ate is a
capacity
the
of the defendant
5. 2. Whether
the murder of Birdie Johnson
6. Whether
appreciate
criminality
was committed while the defendant was under
his conduct or to
the
of
the influence of extreme mental or emotional
requirements of law
to the
conform
conduct
disturbance.
substantially impaired.
partici-
3. Whether Birdie Johnson was a
pant the defendant’s conduct or consented
the act.
discretion
trial
v.
because
merely
prejudice
of the
court.
Cov
it tends to
the
State
267,
ington, 432
(Mo.1968).
Wood,
271-72
S.W.2d
See
defendant.
We find no
of
case.
394,
banc),
denied,
abuse
discretion in this
221,
876,
jury’s judge’s ficiency support or evidence to finding of a statuto- ry jury’s finding statutory aggravating enu- circumstance circumstance as 565.012; merated in section that the murder of Miss was “out Johnson vile, horrible, or in rageously wantonly (3) Whether the sentence of death is ex- that it or deprav human in involved torture disproportionate cessive or pen- to the Neverthеless, ity pursuant of mind.” alty imposed cases, in similar con- 565.014.3(2), mandate of find there we § sidering both the crime and de- jury’s substantial evidence to support fendant. finding aggravating circumstance be charge Defendant’s the death sen- yond v. Vir a reasonable doubt. Jackson tence was passion the result of finds no ginia, 443 U.S. support in the record. He that a contends *7 (1979). forcibly 560 Defendant entered photograph of Miss Johnson with the knife for the an apartment Miss Johnson’s protruding from her head evoked “emo- purpose committing nounced of burglary. tional response” this, from the jurors and inside, Just defendant armed himself with a coupled with amount the of time delib- they though twelve-inch butcher knife even erated, “demonstrates that the sentence elderly occupant apartment knew the of the was ‘imposed under the of pas- influence 80-year-old lived alone. The victim was ” sion.’ beaten, and then raped, repeatedly stabbed all, First of the rele photograph was face plunged carry and the knife into her to vant evidence and as stated in out she defendant’s declaration that had to Shaw, (Mo. 636 banc), S.W.2d 667 de cert. and horren Despite be killed. the brutal nied, 103 74 she was still dous attack on Miss Johnson (1982): apartment. defendant the alive when fled foreign wоuld concept internally externally to our of from Bleeding [I]t criminal jurisprudence wounds, to suggest mortally the wounded multiple relevant evidence should be inadmissible her death woman remained conscious until
several hours later. The of testimony lay record indicates that was of defendant nor witnesses, together and medical with it intelligence; trial mal that was defendant who exhibits, savage to vividly plan demonstrate the formulated and initiated the bur glarize and heinous of the Miss Johnson’s it killing aged apartment; and defense woman. was defendant who decided that Miss John jury less The well find son must and the active wielder the she had to die cоntemplate substantial time her weapon. Blair, fate S.W.2d 739 [State 1982), denied, - U.S. -, banc cert. and received a requested psy- 1030 (1983)] and her chiatric withdrew his examination then slaying wantonly vile, or outrageously rendering notice of disease or mental defect horrible or in that inhuman it involved tor report unfit the proceed. Although him to ture or mind. depravity of us, was not included in the record filed report the trial he was not judge’s shows turnWe now to defendant’s conten- final suffering or defect from mental disease imposition tion that the of the death sen- excluding responsibility at the time the dispropor- tence in this case excessive or the report or trial. In the trial offense to penalty imposed tionate in similar following regard- judge made the comment cases, considering both the and the crime the death sen- appropriateness of defendant. in tence this case: Defendant refers capital us to mur in do not ever believe personally in der cases which the death penalty was Court of penalty. Supreme waived Death-waived cases State. has ruled it constitu- United States not are relevant in our re proportionality According understanding tional. my Bolder, view. State v. law, of the would not be unreason- 1982), denied, - U.S. -, assessing able in suсh under punishment 5.Ct. L.Ed.2d State v. according to the facts of this case Mercer, (Mo. banc), cert. de present state of law. nied, 933, 102 L.Ed.2d years 4 months Defendant was old Neither are cited the cases According at the the murder. time of defendant in which the defendant was a report had judge’s defendant accomplice mere in secondary participant Training committed the Boonville School killing. Contrary a.defendant’s ar Boys in 1978 “Juvenile-Assault”. McIlvoy, we deem gument, do not minor offenses in 1979 Apparent appli to be S.W.2d 333 fines, report. according resulted in cable to this According case. to defendant’s testimony cоmpleted eighth he had In his on this defendant argument point in grade report school. The trial judge’s age lays heavy stress defendant’s completed shows the tenth defendant seeking penalty.6 avoid the death Much he was grade. There is no evidence that argument question calls into wis- had a his person intelligence, penalty. subnormal dom of the death General abuse, or tory weakling Assembly of alcohol was a Missouri has resolved that Throughout McBvoy question and a follower as defendant.7 against determined reducing argument ignores case. The sub- the sentence *8 Missouri, statute, age juvenile (same). are 6. the limit court Absent suсh states free defendant, young jurisdiction apply penalty at is 16. The 18 their death statutes offenders, trial, juvenile who time of the and 19 of and even offenders at the time adults, 211.021, long so as such statutes stand trial as was an “adult”. Section RSMo 1978. comport general eighth amendment stan Note, generally, legislatures Penalty 7. The in some have The Death states enacted dards. See Alternative, prohibiting penalty 7 statutes the death sanction for Juveniles —A Constitutional e.g., involving youthful imposition See of in cases offenders. J.Juv.Law 54 The (West (de punish Supp.1982) penalty Cal.Penal Code 190.5 death is not cruel and unusual § per offense); simply se fendаnt under 18 at time of Conn. ment because the is Eddings 53(a)-46(a) (West Supp.1981) v. Gen.Stat.Ann. minor at the time of the offense. §
495 believe, however, showing stantial evidence indif- tion. his callous ference to the his 80-year-old life of victim. sentence should be set aside. 565.- Section 1978, 014.3(3), enjoins RSMo us to consider We capital have reviewed cases determining “the defendant” in whether imprisonment in which death life have dispro- of sentence death is excessive or the jury submitted to under the law portionate. present The defendant was 18 26, 1977, May effective in the jury which years the time com- old at the offense was agreed on punishment and which have been principal opinion mitted. The observes appeal.8 ruled on sentence Defendant’s of death for the murder of Miss Johnson is not on the legislature imposed no restriction excessive or disproportionate to penalty age of a executed. person who cases, imposed considering similar still reviewing responsi- This Court has its crime the defendant. to substitute its deci- bility obliged if of sion for that of the its assessment jury, judgment is affirmed. the statutory sentencing factors governing RENDLEN, C.J., WELLIVER, HIG- appropriate. indicates that this action is GINS, DONNELLY, JJ., GUNN and con- history capital punishment in Mis- cur. persons souri shows that who were under BLACKMAR, J., conсurs part and dis- age at the of 20 time commission of in part separate sents opinion filed. the offense have seldom been sentenced to 6, death, Execution date for January set or executed. BLACKMAR, Judge, concurring in part capi Of the cases decided under the new
and dissenting
part.
punishment
tal
law which are appropriate
I concur in all
parts
comparison,
age
four involve offenders
principal opin-
relating
ion
to the affirmance
These are: State v. Basker
19
convic-
younger.
Oklahoma,
104,
869,
Shaw,
(Mo. banc),
455 U.S.
102 S.Ct.
71
State v.
636
667
S.W.2d
cert.
(1982) (defendant
denied, - U.S. -,
239,
L.Ed.2d 1
16 at the time of
103 S.Ct.
murder) (sentence
Bolder,
(1982);
rеversed and remanded
188
State v.
Greathouse, the time of the offense. Sеe 627 S.W.2d Scott, (Mo.App. Mo. 185 S.W.2d v. 651 S.W.2d Blair, Anderson, 638 S.W.2d 386 S.W.2d and State opin- this 1982). 1963). lengthening In first three Without penalty. say to assess the death it is sufficient to declined ion details incident killings involved willful both cases in triple involved a Baskerville the defendants abused robbery, to in which The defendant robbery. the course of a and also se- killing to prior their victims the time the offense age was 19 of years might who persons wounded other verely in The facts as set out was committed. have died. well Opinion were Judge Concurring Seiler’s killing wanton of shocking and included the murders in aggravated the most One of gun, a of a second person one to obtain Franks Bobby that of histоry is our witness, and of a seven because she was a Leopold. Loeb and Nathan Richard reason. boy apparent old without year brutally murdered victim was abducted and chisel, ransom note was a while a by use of years. aged involved a defendant Scott kidnappers continued in circulation and to similarity remarkable The facts bear a knowing ransom their efforts to collect the case, multiple stab present involving retained The defendants that he was dead. wounds, fact with the additional pleas Darrow and entered Clarence die, was re- second who did not person, John R. Judge fell to Sentencing guilty. stabbed. peatedly Court, Justice of the Criminal Caverly, Chief an axe involved the use of Greathouse Judge paid Illinois. The County, of Cook gunshots inflicted by multiple followed psychological Darrow’s attention to little his uncle. 17-year boy against old not to decided but nevertheless arguments compari- precise There is no formula penalty, explaining impose the death horrors, see that son of but I am unable to reasoning as follows:1 cases were the offenses involved those of least path been the It would have than what is any shocking repulsive less penalty the extreme impose resistance to us. involved in the case now before imprisonment choosing of the law. was the death sentence Only in Blair death, is moved the Court instead of offender. The 18- imposed teenaged on a age by the consideration chiefly already in that case had old defendant year defendants, years. of 18 and boys in the penitentiary, served a term he will say to It is not for Court jail. He undertook another stretch capital punish- not in case enforce charged against a rape kill a witness to a alternative, the Court but ment as of sev- payment for a cash prisoner, fellow province within his it is believes dollars, victim and stalked his eral thousand death the sentence of impose decline ele- presented The record days. for several age. not of full who are persons willfulness, deliberation, and kill- ments of be in appears determination This which are not found pure gain criminal progress with the accordance present cases. dic- and with the over the world law all More humanity. enlightened exe- tates of persons History shows that that, in accordance it to be than seems following gas in the Missouri chamber cuted hitherto observed precedents with the convictions, invalidation prior state of Illinois show records state. The pur- statutеs previous put who were minors two cases of only Georgia, 408 U.S. suant to Furman number which by legal process (1972). Only —to 11, 1924, gy, Tribune, p. Chicago Sept. 2. See Law and Criminolo- also 15 Journal of Criminal *10 does feel alleged Court not inclined make was not participant guilty an punished addition. offense and cannot be all. should with case be remanded di- when Perhaps view from time rections to resentence defendant to life was much often im- more imprisonment probation parole without posed it will perspec- than is now furnish years. for 50 History tive. tells was us Loeb killed 1930’s, in a prison incident while
Leopold years. served he many After parole,
released led a useful life. on the I comparisons
Based above do not
believe requires that the law the life of this
young stating man. In so I do not minimize
the enormity guilt of his or the horrible offense, youth details of but do urge Missouri, Respondent, STATE a proper factor for consideration. I do have reservations as whether McDONALD, Appellant. Samuel Lee compliance
there is
with the standards of
No. 64057.
Godfrey Georgia,
flicted The defend-
ant rather set out to kill but found his
weapon was inadequate, a vi- except when
tal spot was Godfrey located. But has al-
ways confusing seemed to me and the Su-
preme appears Court to have retreated
from it in recent years. rather rest my comparisons
conclusionon the age and on
the offender. argued incongrui- has
ty of allowing sentence stand
while accomplice goes through free
acquittal. If this defendant fact is in exe-
cuted, generations future irony will sense situation, but inconsistent verdicts are
to be expected so as we long have individual
determination of guilt by jury severance, free which are established
parts of our criminal law procedure.
The incongruity bemay corrected
Governor, if so minded. The statute does
not authorize the mitiga- courts to afford
tion on account of these circumstances.
There comparison is no basis for punish-
ment when the jury determines that one