In re Shipp

A jury convicted petitioner of the robbery of Bernard Wilkinson and the robbery and first degree murder of Albert Hawley. For the murder of Hawley the jury fixed the penalty at death. We affirmed the judgment on automatic appeal (People v. Shipp (1963) 59 Cal.2d 845 [ 31 Cal.Rptr. 457 , 382 P.2d 577 ] ; cert.den. 377 U.S. 999 [ 84 S.Ct. 1927 , 12 L.Ed.2d 1049 ]) and denied a petition for rehearing.

In this proceeding in habeas corpus petitioner contends that the trial court deprived him of rights guaranteed by the Constitution in permitting the introduction of his admissions procured by the police without informing him of his right to counsel and his right to remain silent; that the trial court erroneously allowed the introduction of evidence obtained during an illegal search; and that in the penalty phase the trial court committed error condemned in People v. Morse (1964) 60 Cal.2d 631 [ 36 Cal.Rptr. 201 , 388 P.2d 33 ]. In a supplemental petition, in forma pauperis, petitioner urges further that the trial court should have excluded certain of his admissions elicited during police interrogation since they were coerced.

For the reasons stated below we hold that petitioner fails…

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.

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…