The opinion
Finley, J.
(concurring) — I believe that it should briefly be emphasized that Witherspoon v. Illinois, 391 U.S. 510 , 20 L. Ed. 2d 776 , 88 S. Ct. 1770 (1968), Boulden v. Holman, 394 U.S. 478 , 22 L. Ed. 2d 433 , 89 S. Ct. 1138 (1969), and the most recent case, Maxwell v. Bishop, 398 U.S. 262 , 26 L. Ed. 2d 221 , 90 S. Ct. 1578 (1970), made little if any *402 change in substantive Washington law concerning challenges for cause in capital cases. The pertinent Washington statutory provision, RCW 10.49.050, provides:
Challenge for cause — Capital case — Conscientious scruples. No person whose opinions are such as to preclude him from finding any defendant guilty of an offense punishable with death shall be compelled or allowed to serve as a juror on the trial of any indictment or information for such an offense.
We have interpreted the statute several times. Under our cases the statute seems to require more of an inquiry into the opinions of potential jurors than occurred with some of those jurors in the instant case. In each case where the voir dire has been set out and its substance is apparent a more thorough investigation of conscientious scruples occurred than in the instant case. See, e.g., State v. Riley, 126 Wash. 256 , 218 P. 238 (1923), which approved the following line of questioning:
“Q. If, in your judgment, the circumstances of a case should warrant it, could you vote to hang a man as a penalty for murder? A. No, sir. Q. Under no circumstances? A. No, sir. Q. No matter what the evidence might show? A. No, sir. Q. Nor how aggravated the case? A. I could not.”
See also State v. Leuch, 198 Wash. 331 , 88 P.2d 440 (1939), wherein the voir dire included the following:
“Q. Mr. Reader, have you any conscientious scruples against the infliction of the death penalty in cases of murder in the first degree? A. Well, yes. Q. You have? A. Yes.”
a
“Q. Mr. Reader, are your objections such that under no conditions as presented to you that you could not return the death penalty? A. Well, I just don’t feel that I have the right to do that. Q. You feel that you have not the right in any case? A. No, I don’t.”
Thus, under our statute as construed in the above cases, jurors are excludable on virtually the same basis as under Witherspoon, Boulden, and Maxwell . Those cases clearly seem to hold that jurors who have reservations but would *403 impose the death penalty under the evidence and the law in an appropriate case may not be excluded, and if they are the death penalty may not be imposed. Just as clearly, the decisions hold that jurors may be excluded without prejudice to the accused if they are absolutely opposed to the death penalty, and would automatically vote against its imposition no matter what the circumstances. Nothing in the cases turns on the number of jurors excluded.
For the reasons indicated, I concur in the views expressed by Hamilton, J., in the majority opinion.