¶1 (dissenting)—I am in accord with the opinion of the majority, save as to the assignment of error which appellant bases upon the conduct of counsel for the state in the argument to the jury. In the case of State v. Stratton, 170 Wash 666, 17 P. (2d) 621, relied upon in this case by the majority as supporting the holding that counsel’s argument to the effect that, if appellant were sentenced to life imprisonment, he would probably soon be pardoned, does not constitute reversible error, several authorities (hereinafter referred to) were cited which support the decision. It is to be noted, however, that, in the quotations from the authorities cited set forth in the opinion of the court, such arguments were frowned upon.
¶2 In the case of State v. Junkins, 147 Iowa 588, 126 N. W. 689, the supreme court of Iowa referred to the argument as “one which would better have been omitted,” going on to state that such an argument might in certain cases constitute prejudicial error.
¶3 The supreme court of Colorado, in the case of Wech-ter v. People, 33 Colo. 89, 124 Pac. 183, remarks, in passing, that such an argument “had nothing whatever to do with any question involved,” the court affirming the death penalty imposed because in its opinion the “argument could not in any way have influenced the jury in returning the verdict they did. ’ ’
¶4 In the case of Jacobs v. State, 103 Miss. 622, 60 So. 723, the court stated that an argument advanced by the prosecution in favor of the imposition of the death penalty placed a too harsh and vindictive construction upon the law, the court being of the opinion, however, that it could not be held that the “lurid language of the advocate” contributed to the conviction of the defendant.
¶5 Concerning the conduct of the prosecuting attorney *499 complained of in the Stratton case, and after citing the authorities above referred to, this court said:
“The convincing effect of the evidence against the appellant, contributed to substantially by himself, independent of any argument on the part of the prosecuting attorney, clearly justified and manifestly brought about the verdict.”
¶6 Considering the authorities relied upon by this court in the Stratton case and the opinion of this court, it seems to me clear that the holding in that case amounts to no more than that the argument advanced by the prosecuting attorney in favor of the imposition of the death penalty did not constitute reversible error.
¶7 In the case at bar, as stated by the majority, it seems clear that the only question which the jury was required to seriously consider was whether or not appellant should be sentenced to life imprisonment or to death. The portion of the argument of counsel for the state of which appellant complains was directed to the vital issue upon which the jury was to pass. Such an argument was absolutely improper. In passing upon the question of the guilt or innocence of one charged with crime, the jury has nothing to do with the punishment which, according to law, must follow a verdict and judgment of guilty. Neither in cases in which the jury is called upon to fix the punishment, as here, should the jury consider possible action of lawfully constituted authority which may at some future date in some manner affect the serving of the sentence which will follow a verdict of guilty. Such an argument as is here complained of is highly inflammatory in its nature. It is a telling argument, carrying a strong appeal and likely to greatly influence at least some of the jurors.
¶8 In my opinion, appellant’s assignment of error based upon this argument is clearly well taken, and it *500 should he held that appellant did not have that fair trial which is guaranteed by law to every person charged with crime.
¶9 Under the doctrine laid down in the case of McDonald v. Davey, 22 Wash. 366, 60 Pac. 1116, the case of State v. Stratton, supra, has not yet become stare decisis. It seems to me that, in this case, the error, under all the circumstances, is more serious than it was in the former case. The authorities cited in the Stratton case criticize such an argument as that now under discussion, and in its opinión this court did not hold that snch an argument is proper, but merely held that the record under consideration failed to disclose reversible error. Under the majority opinion in this case, the argument complained of is held to be without prejudice, and prosecutors will be free to indulge in such appeals at will.
¶10 Believing as I do that such an argument is basically wrong, and presents to the jury matters which they have no right to consider and which carry a strong appeal to passion and prejudice, I am constrained to dissent from the conclusion reached by the majority.
¶11 Blake, J., concurs with Beals, C. J.
¶12 (concurring with the majority)—I concur in the majority opinion. I feel, however, that some answer should be made to what is said in the dissenting opinion.
¶13 After referring to the fact that the whole issue in the case was as to whether the jury should, by its verdict, inflict the death penalty, the dissent uses this language:
“The deputy prosecutor, well knowing that fact and having, without doubt, fortified himself hy reading the Straitton case and feeling justified in going just as far as the ruling of that case would permit, proceeded by that sanction of this court to pour out upon the jury a mingled product of fact (not in the evidence), deduction and inference which was virtually certain to produce the hanging verdict which he desired. ’ ’
¶14 This language is, in my opinion, unjustified and altogether too severe.
¶15 The deputy prosecutor could not have “fortified himself by reading the Stratton case,” for the simple reason that, when the present case was tried, the Stratton case had not yet been decided. A reference to the record discloses that the verdict in the case at bar was returned on July 28, 1932, whereas the opinion in the Stratton case was not filed until December 23, 1932, practically five months later. Hence, un *496 less the prosecutor could foretell in July what this court would decide in December, manifestly, he could not have “fortified himself” thereby.
¶16 Nor, in my opinion, is there any justification for saying that the deputy prosecutor proceeded to “pour out a mingled product of fact (not in the evidence), deduction and inference.” The misconduct complained of was in the state’s closing argument. Counsel for appellant, in his address to the jury, quoted the deputy prosecutor as having said: “Do you think a man of this kind is going to stay in jail very long if you send him up for-life?” Counsel for appellant then proceeded to tell the jury that appellant could not get out of the penitentiary, because he would not be able to break out, and that the only other way would be through influence, which he did not have.
¶17 There was in evidence a letter written by appellant while in jail to a friend outside, asking the latter to smuggle four hacksaw blades in to him. In answer to the argument of appellant’s counsel, the deputy prosecutor said to the jury that, in eight or ten years, the appellant would be pardoned by “some weak-kneed governor,” and that the records showed that a life sentence in this state amounted to eight years’ service, and elsewhere throughout the United States, seven years; and that appellant, if committed to a life sentence, would either be pardoned in eight years or less, or would be “worming” his way out.
¶18 Under the situation as then presented, I do not entertain the view that the deputy prosecutor proceeded to “pour out a mingled product of fact (not in the evidence), deduction and inference.” I think that his argument was a legitimate answer to the argument of appellant’s counsel.
¶19 But, beyond all this, there is the fact that no exception whatever was taken to the remarks of the deputy *497 prosecutor. Upon a similar situation, we said in State v. Stratton, 170 Wash. 666, 17 P. (2d) 621:
“No exception was taken to the argument, nor request made that the court instruct the jury to disregard it, which is necessary to have it reviewed unless it amounted to conduct so flagrant that an instruction would not cure it. State v. Heaton, 149 Wash. 452, 271 Pac. 89, quoting the rule laid down in State v. Meyerkamp, 82 Wash. 607, 144 Pac. 942. We are satisfied the language of the prosecuting attorney did not constitute misconduct of such flagranee.
“Furthermore, the contentions of the appellant, as we understand, are: (1) That the argument was an undue appeal to passion and prejudice. But an attorney is not confined in his argument to a simple recitation of, or reference to, the testimony, but may draw deductions therefrom, and persuade after the manner of advocacy suggested by the facts and circumstances testified to on the trial.
“(2) That the argument constituted statements of fact not in evidence, that the remarks constituted testimony on the part of the prosecuting attorney, who was not under oath and not subject to cross-examination ; and in this connection, it is further claimed that the facts thus testified to by the prosecuting attorney were not true, because, under the statute, there could be no parole of a life prisoner. The suggestion that the law prohibits the parole of a life prisoner may be dismissed in our consideration of the case, because if the jury knew that, they would, of course, pay no attention to it. But suppose they listened, without knowing such to be the law, still there was nothing prejudicial or that constituted reversible error about the argument.”
¶20 Under the record of the Stratton case, I see no unwisdom in the opinion therein, and do not feel that “the interest of justice and fair dealing” requires that that case be overruled. I therefore concur in the majority opinion.