In re Kemp

Darryl Thomas Kemp, under sentence of death for murder, petitions for a writ of habeas corpus. The writ must be granted as to the penalty under the rules announced in Witherspoon v. Illinois (1968) 391 U.S. 510 [ 20 L.Ed.2d 776 , 88 S.Ct. 1770 ], but denied insofar as the petition seeks to attack the judgment of guilt.

Petitioner was convicted after a jury trial of one count of murder of the first degree, two counts of rape, and one count of kidnaping. He was found by the jury to have been sane at the time of the commission of each of the offenses charged, and the jury in January 1960 fixed the penalty for the murder at death. This court affirmed the judgments in People v. Kemp, 55 Cal.2d 458 [ 11 Cal.Rptr. 361 , 359 P.2d 913 ], in March 1961. 1

Petitioner alleges that the jury which sentenced him to death was selected in violation of the requirements of Witherspoon v. Illinois, supra, 391 U.S. 510 , and In re Anderson, 69 Cal.2d 613 [ 73 Cal.Rptr. 21 , 447 P.2d 117 ]. Witherspoon established that in a capital punishment case, only those jurors who make it “unmistakably clear .... that they would automatically vote against the imposition of capital punishment without…

I dissent. I would deny the writ.