The opinion
BURKE, J.
I concur in the affirmance of the judgment in all respects other than as to penalty, but I dissent from the granting of the writ as to the penalty trial for the reasons stated in my dissent in In re Lessard, ante, pp. 497, 513 [ 42 Cal.Rptr. 583 , 399 P.2d 39 ].
Schauer, J., † concurred.
McCOMB, J.
I agree with Mr. Justice Burke’s concurring and dissenting opinion.
It is my view that this court should overrule its holding in People v. Morse, 60 Cal.2d 631 [ 36 Cal.Rptr. 201 , 388 P.2d 33 ].
Subsequent events have demonstrated the error in the holding in that ease. The defendant was returned for a new trial on the penalty issue and was sentenced to life imprisonment. While awaiting transportation to the state penitentiary he strangled to death another man and received the death penalty for the second murder. Obviously, if the verdict of the jury in the first Morse ease had been affirmed, one man would be alive who has been murdered by the defendant. (See Mr. Justice Schauer’s and my concurring and dissenting opinions in People v. Hines, 61 Cal.2d 164, 175, 182 [ 37 Cal.Rptr. 622 , 390 P.2d 398 ]; my dissenting opinion in People v. Dorado, ante, pp. 338, 361 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ] ; and dissenting opinion of Mr. Justice Burke, joined by Mr. Justice Schauer, at p. 364.)
The judiciary should consider the protection of innocent people in this state and endeavor to support law enforcement officers in their efforts to prevent the increase of crimes now taking place at an alarming rate in this and other states of the United States. The prevention of crime may be best enforced by the prompt conviction and punishment of criminals, and we should endeavor in every legitimate manner to *558 protect our innocent citizens and to avoid unnecessary reversals of convictions of manifestly guilty criminals, thereby better protecting the law-abiding public.
Petitioner’s application for a rehearing was denied April 6, 1965. Mosk, J., did not participate therein. McComb, J., and Burke, J., were of the opinion that the petition should be granted.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.