¶1 delivered a specially concurring opinion.
¶2 As to some crimes deliberately done, as, for instance, murder when it amounts to assassination, I think' we must of necessity retain the death penalty.
¶3 The trouble with the death penalty has been in the practical administration by the juries. Here comes one case where the offense scarcely amounts to more than manslaughter, but the death sentence is carried by the verdict, and along with it comes another as black as night and the verdict is for a penitentiary sentence. In this respect the statute on robbery with a deadly weapon has furnished a fertile field for this difference in treatment which, if it may not be called favoritism, is no better. The average citizen with just and honest instincts does not look with approval, to say the least, upon this sort of action.
¶4 Time and again when the robbery is committed by two or more, and by the exhibition of a deadly weapon, unci this is more often the case than when by one alone, the ring leader will get off with a penitentiary sentence, sometimes as low as ten years, while his aiders, although followers only, will be sentenced to death. In this particular case there were three participants; two of them Nave been sentenced to death, but the ring leader apparently has not yet been tried. When he is tried, predicting upon the experiences in the past in such cases, the chances are that he will receive something less than the death sentence. The opportunity for this sort of abuse ought not to be kept in existence save in those crimes which *564 make it imperatively necessary, and such is not the case in robberies where nobody is hurt. I concur, therefore, with the Chief Justice in what he has said with regard to this particular statute in so far as concerns the death sentence feature of it.