In re Mathis

In this habeas corpus application, petitioner Dovie Carl Mathis, presently under sentence of death after conviction of first degree murder (People v. Mathis (1965) 63 Cal.2d 416 [ 46 Cal.Rptr. 785 , 406 P.2d 65 ]), contends that *468 under the rule of Witherspoon v. Illinois (1968) 391 U.S. 510 [ 20 L.Ed.2d 776 , 88 S.Ct. 1770 ], the trial court erroneously excused for cause certain veniremen who were conscientiously opposed to the death penalty. The voir dire examination of prospective jurors discloses such error to have occurred. Accordingly, under compulsion of Witherspoon the judgment must be reversed insofar as it relates to penalty.

Of the 75 veniremen examined on voir dire, some two dozen were excused for cause on account of their attitude toward capital punishment. The trial court asked the veniremen initially seated in the jury box whether they “ entertain [ed] any conscientious objection to the imposition of the death penalty in a proper case?” Two prospective jurors who so indicated were dismissed for cause without further examination. The court asked the next two veniremen if there was any reason why they could not serve as fair jurors. One replied, “I object to the…