The opinion
*361 MAJOR, Circuit Judge
(dissenting).
I do not agree with the conclusion reached. The charge, the applicable statute, as well as the circumstances in connection with the crime, are aptly and fairly set forth.
While the question is not directly raised, it is my judgment that the trial court misconstrued the statute in question. This alone I do not regard as reversible error as such misconstruction did not operate to the injury of appellant, but in view of the fact that it may have some bearing upon what I think is reversible error, I do not deem it amiss to suggest my views in connection therewith. I refer to the form of verdict which was submitted to the jury. Three forms of verdict were submitted by which the jury was authorized to fix a penalty at any number of years, not less than ten, for the period of his natural life, or death. It is my construction of this statute that upon a plea of guilty, no question may properly be submitted to the jury except that of whether the defendant shall suffer the punishment of death. Upon the court is imposed the right and duty to impose a punishment by imprisonment for any term not less than ten years, but if the death penalty is sought that can only be imposed “if the verdict of the jury shall so direct.” In other words, the language just quoted is a restriction or limitation upon the right of the court to impose the death penalty, but such limitation or restriction has no application to the imposition of punishment by imprisonment. On a plea of not guilty, in addition to the question of guilt or innocence, there should be submitted to the jury only the further question as to whether or not the death penalty should be imposed. If the jury should answer this question in the negative, it would then become the duty of the court to fix the punishment by imprisonment for not less than ten years. I think this construction is borne out by the legislative history of the statute. The original bill conferred upon the court the duty of imposing punishment without reference to a jury. The bill, as enacted, however, was amended by adding the language “if the verdict of the jury shall so direct.” This, in my opinion, could have only had reference to punishment by death and otherwise the statute remained as originally introduced.
As stated in the opinion, appellant contends that the issue presented is “whether the cause submitted to the jury should have been tried under the same rules of evidence as if there had been a plea of not guilty” or under the “theory that the jury stood in the same position as a judge before pronouncing sentence.” In my judgment the former theory should have been adhered to. The opinion does not hold to the contrary, but concludes “the former method was pursued by the court in practically every instance. Those instances which seem to have exceeded the limits of such method will be discussed later,” and then proceeds to justify what I regard as the most grevious error in the record by the opinion of the court in People v. Popescue, 345 Ill. 142 , 177 N.E. 739 , 77 A.L.R. 1199 , which was a hearing before the court, on a plea of guilty, to determine punishment.
I agree that all pertinent facts and circumstances which bear upon and would be admissible upon a plea of not guilty, should properly be heard by the jury. Conversely, it is my opinion that no evidence should have been admitted in this case which would have been improper had there been a plea of not guilty. Any other conclusion might readily lead to consequences of an absurd nature. For instance, in the case where the person charged with a violation of this statute pleads not guilty, his punishment, if found guilty, is to be determined by one standard, while another person like charged, who pleads guilty, is to have his punishment fixed by another standard. In the former case only that evidence which was material and relevant under the well-established rules, of evidence would be heard by the jury, while in the latter case, the jury, in determining whether or not the death penalty should be imposed, is permitted to try and determine that question, not only upon pertinent facts and circumstances, but upon evidence of other crimes unrelated and unconnected with the offense charged. I am unable, by any process of reasoning, to conclude that a person charged with crime, who in court confesses his guilt, should have his punishment determined under circumstances more unfavorable to him than the one who, by denial of his guilt, forces the government to establish the same. Of course, it is said in some cases such a standard would operate to the benefit of the accused, but that is not the situation here, and it does not mitigate the harm done the accused in this case to say that in sbme other case the accused might be benefited.
I agree with the majority that all testimony concerning appellant’s flight, pursuit, including his escapade with the officers in *362 Baltimore, the arrest of appellant and his associates at Bangor, Me., the property in their possession at that time, the blood-soaked shirt of the deceased worn at the time he was shot, and the exhibit of firearms with which appellant had been connected, was properly admissible.
I cannot agree, however, to the relevancy of the testimony of the government agent that the appellant, after his arrest, confessed that prior to the crime charged he and his associates committed approximately 150 grocery store, filling station, and drug store robberies, three bank and four jewelry store robberies, and had been implicated in two other murders. True, the court sustained an objection with respect to the two murders, but not upon the ground that it was immaterial or improper, but for the reason it was not responsive to the question propounded. Without doubt, such evidence under a plea of not guilty would have constituted reversible error. As the court said in People v. Lane, 300 Ill. 422 , on page 424, 133 N.E. 267 , 268:
“The defendant had a right not only that his guilt or innocence should be determined without the introduction'of irrelevant evidence of other crimes which it could be shown he had committed, but also to have his punishment, if he were found guilty,- fixed with reference only to the circumstances of the crime of which he was convicted, and not upon the consideration, also, of other serious and inexcusable crimes which he had confessed.”
Again the same court in People v. Heffernan, 312 Ill. 66 , on page 72, 143 N.E. 411, 414 , makes this very pertinent statement:
“The defendants in this case were practically tried, not only for the crime of murder as charged in the indictment, but also for the other five robberies admitted in evidence, proof of which was not competent under any legal theory of the case. It is therefore not possible for this court to say that they were not greatly prejudiced by the admission of the evidence aforesaid. Wé have positively held that a verdict finding a defendant guilty of murder and fixing his punishment at death cannot be sustained, even though the,re is competent evidence in the record to support it, where incompetent evidence .has been admitted which shows the commission of other crimes by the defendant and that have a tendency to influence the jury in fixing the degree of punishment. People v. Lane, 300 Ill. 422 , 133 N.E. 267 .”
Many authorities could be cited to the same effect. In fact, it is a well-nigh universal rule. One more, however, is sufficient. In Boyd v. United States, 142 U.S. 450 , on page 458, 12 S.Ct. 292, 295 , 35 L.Ed. 1077 , wherein the defendant was charged with murder and where the trial court allowed proof of other offenses unrelated to the inquiry as to the murder charge, the court said:
“Proof of them only tended to prejudice the defendants with the jurors, to draw their minds away from the real issue, and to produce the impression that they were wretches whose lives were of no value to the community, and who were not entitled to the full'benefit of the rules prescribed by law for the trial of human beings charged'with crime involving the punishment of death. Upon a careful scrutiny of the record we are constrained to hold that, in at least the particulars to which we have adverted, those rules were not observed at the trial below. However depraved in character, and however full of crime their past lives may have been, the defendants were entitled to be tried upon competent evidence, and only for the offense charged.”
The majority opinion, in sustaining the admission of this testimony with reference to offenses other than that charged, relies entirely, so far as authorities are concerned, upon the case of People v. Popescue, supra. A reading of that opinion, however, in my judgment, affords scant, if any authority for such conclusion. It is true, in that case, on a plea of guilty, the court, in determining the punishment, -heard the written confession of the defendant as to the commission of another murder about three hours before the one charged. In the hearing the defendant claimed the killing was accidental and, of course, proof of the other murder, committed under similar circumstances, was heard as bearing upon the question of intent. It was an exception to the general rule and perhaps would have been admissible even in a trial before a jury. Also, in that case the court was conducting a hearing after a plea of guilty, as is provided by section 4 of division 13 of the Criminal Code of Illinois, Ill.Rev.Stat.1937, c. 38, § 732, making it the duty of the court to examine witnesses as to the aggravation and mitigation of the offense. The court holds that this provision is mandatory under such circumstances and the court is required to make such examination upon the request of either the people or the defendant. Such proceeding is held *363 not to' be a trial, citing many authorities in support thereof. The court emphasizes the fact that the proceeding was a hearing before the court without a jury and compares the same to that in chancery cases where the court is presumed to disregard all evidence except that which is competent and relevant to the issue. How can it be said that the situation there discussed has any relevancy to that here presented? This is not-a hearing before a court as in chancery, but is a trial by a jury upon an issue as to whether or not the death penalty shall be imposed. The mere fact that only one issue is submitted to the jury under a plea of guilty rather than two issues upon a plea of not guilty, does not detract from or mitigate against such position. Even if it be conceded that the trial judge has the right to hear evidence of other crimes where the discretion of fixing the punishment is vested in the court, it does not follow by any means that such evidence may properly be heard by a jury. Especially must this be true where it is apparent that Congress, in enacting the statute, deliberately took from the court the right to impose the death penalty until that question had been affirmatively determined by a jury. Undoubtedly, the jury which the statute refers to must be selected and impaneled in the same manner as the jury in any other case and be amenable to all restrictions with which the law surrounds a jury, both for its protection and that of the parties to the issues submitted. The mere fact that only one question is required to be submitted, under the circumstances here existing, does not make it any less a trial by jury, and the same procedure should be followed, including the admission of testimony as would be applicable and pertinent to any other issue submitted for jury trial. This position is sustained by the Supreme Court of Colorado in Reppin v. People, 95 Colo. 192 , 34 P.2d 71 , wherein the defendant entered a plea of guilty to a charge of murder and under a statute which provided for the submission to a jury of the question of the penalty to be imposed.
I agree with the majority that the statements made by the deceased prior to his death should not have been admitted. I think, however, it was a prejudicial statement, perhaps not sufficient in itself to require a reversal, but when considered in connection with other incompetent testimony, to which I have referred, requires a reversal of this judgment.
That this record discloses a crime brutal in the extreme is obvious, which it is not difficult to believe justifies the extreme penalty. Notwithstanding this situation, however, appellant was entitled to have the only issue submitted to the jury determined upon competent evidence and to have the penalty determined for the offense charged.