[82] OPINION
By the Court,
Zenoff, J.:
Thomas Bean, age 18, was convicted of the murder of Sonja McCaskie and sentenced to death. He had not known the victim. [83] During a customarily sleepless night he was prowling a neighborhood looking for women’s clothing on clothes lines which was his characteristic for sexual gratification. He had rape in mind if the opportunity presented itself. Finding a door to Sonja’s apartment unlocked he removed his shoes, entered, took several precautions against detection and did several other things preparatory to committing the act of rape upon Sonja whom he observed sleeping alone in her bedroom. Using a garrote which he had brought with him he twisted it around her neck and increased the pressure when she awakened and pleaded for her life. It is not clear whether she was still alive when he stabbed her several times with his knife and committed the act of rape, but he completed the act of rape and murder.
Thereafter, he dragged her body out of the bedroom, cut her heart out and threw it on the floor, cut off her head, tried to skin her like a carcass in a slaughter house, slit her from the crotch to her neck and then stuffed the body in a hope chest. Before that he had tossed the head into the chest “like a basketball.” A foot was hanging out of the chest so he cut that off and left it lying on the floor. During all of this he had stabbed her .many times with his knife and with knives taken from Sonja’s kitchen. Bean then lolled around listening to her musical records and tiring of that took her sports car for a joy ride, returned, and left. A statement of facts is found in Bean v. State, 81 Nev. 25, 398 P.2d 251 (1965), when this court affirmed his conviction. Bean now asserts through our post-conviction statute, NRS 177.375, constitutional rights that had not been otherwise reviewed.
Decisions of the U.S. Supreme Court rendered after the appeal directly relate to several of the asserted issues now before this court. Those issues are (1) that members of the jury venire were improperly excused (2) the publicity surrounding the trial was of such nature a fair trial was denied him, and (3) that he had been denied effective assistance of counsel. This court referred the petition to the district court for an evidentiary hearing.
To the contentions that (a) the jury was not representative of the community where the trial was held (b) that pretrial publicity precluded a fair trial, and (c) that Bean was denied effective assistance of counsel the trial court ruled for the state on the last two, but did not rule at all on the first but referred that question to this court because we had not asked the trial court to go into the subject in the order of reference.
A. THAT THE JURY SELECTION VIOLATES THE STANDARDS ESTABLISHED IN WITHERSPOON v. [84] ILLINOIS, 391 U.S. 510 (1968), DECIDED BY THE U.S. SUPREME COURT THREE YEARS AFTER WE REVIEWED BEAN’S TRIAL IN BEAN v. STATE, SUPRA.
At Bean’s trial a panel of 80 prospective jurors was drawn. Thirteen of that number were excused by the court after the typical following exchange in the voir dire examination:
Defense Counsel: “Do you have a conscientious qualm against the death penalty?”
Juror: “Yes, I do.”
Question: “Do you feel that you could not render a deci-
sion for the death penalty?”
Answer: “I am afraid not.”
Defense Counsel: “I will anticipate the state’s challenge and will stipulate, your honor.”
Prosecutor: “We will stipulate, your honor.”
The Court: “Based upon the stipulation, I am going to excuse you from serving and thank you very much for coming.”
1. The U.S. Supreme Court in Witherspoon declared that a jury which excludes all those persons with some bias against the death penalty cannot perform the task of determination of penalty demanded of it, and that a death penalty imposed by such a death-oriented jury cannot stand. A man who opposes the death penalty no less than one who favors it can make a discretionary judgment entrusted by the state and can thus obey the oath he takes as a juror. P. 519. Before he can be excluded a juror must make “unmistakably clear” (1) that he would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him, or (2) that his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant’s guilt. Pp. 522-523, footnote 21.
The standard or test pronounced and mandated by that decision is directed at the questioning of jurors who are summoned to serve in a capital case. If they simply state that they are against capital punishment and are thereby excused, reversible error is committed. Whatever penalty has been imposed by a jury in that case cannot stand.
At the time of Bean’s trial on June 24, 1963 our statute specifying grounds for challenge of jurors for cause NRS 175.105(9) provided: “If the offense charged is punishable with death [a ground for challenge is], the entertaining of such conscientious opinions as would preclude his [the juror] finding [85] the defendant guilty; in which case he must neither be permitted nor compelled to serve as a juror.”1
The U.S. Supreme Court directs that in order for a challenge to be properly asserted under that statute there must be a thorough examination of each juror who asserts a bias for or against the death penalty to determine whether or not his bias can be set aside and whether the juror could nevertheless determine the issue of innocence or guilt and penalty upon the evidence presented before him. If he can then he is a qualified juror and must be allowed to sit unless excused by peremptory challenge. The fact of his bias alone is not ground for discharge from the jury. The extent of Witherspoon does not destroy the trial, only the penalty, but its ruling is retroactive.2
In the case of In re Anderson, 447 P.2d 117 (Cal. 1968), the California court ruled that where one or more of the prospective jurors were excused on the ground that it was not unmistakably clear that he would automatically vote against the imposition of capital punishment without regard to any evidence, or that his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant’s guilt, error was committed. Statements such as: “I am opposed to the death penalty,” “I don’t believe in capital punishment,” are insufficient to disqualify such a juror because it is not clear that he or they could not set aside those conscientious convictions and determine the case from the evidence. See also, In re Eli, 454 P.2d 337 (Cal. 1969); State v. Atkinson, 167 S.E.2d 241 (N.C. 1969); State v. Ruth, 170 S.E.2d 897 (N.C. 1969).
2. Defense counsel’s failure to object to the exclusion of the prospective jurors does not bar him from now claiming error. There is a duty upon the court to make it clear to the prospective juror that opposition to the death penalty or conscientious scruples against that penalty would be insufficient to disqualify him from service. Failure to do so is understandable since the trial was long before the U.S. Supreme Court rendered its decision in Witherspoon which sets forth new rules that the states are required to follow and to apply retroactively. In re [86] Arguello, 452 P.2d 921, 922 (Cal. 1969). Thus, there is no merit to the defendant’s failure to object in the trial court to the exclusion of the member as a bar to the present claim of error. Boulden v. Holman, 394 U.S. 478 (1969); People v. Risenhoover, 447 P.2d 925, 936 (Cal. 1968); In re Anderson, supra; People v. Sears, 450 P.2d 248 (Cal. 1969). A stipulation that a prospective juror may be excused for cause, made upon the erroneous assumption that the juror is disqualified, must be similarly treated.
3. Bean had three peremptory challenges unused, the state one, but even though peremptory challenges still remained the court of California holds that to be of no effect. People v. Sears, supra, at 257; People v. Beivelman, 447 P.2d 913 (Cal. 1968). Although Bean had three unexercised peremptory challenges and one remained for the state, the factor of unused peremptories could not overcome the total number of jurors who were invalidly excused even were we permitted to accept the leftover peremptories argument. People v. Speck, 242 N.E.2d 208, 227 (Ill. 1968). The record here shows a systematic exclusion of jurors who were not examined sufficiently once they answered regarding their feelings about the death penalty.
4. The question by the court, “Is it your frame of mind that you could not and you would not, under any circumstances, regardless of what the evidence might be, return a verdict carrying with it the death penalty?” was satisfactory in People v. Nye, 455 P.2d 395, 399 (Cal. 1969). But the words “in a proper case” ordinarily lacking in precise unmistakable clearness may be acceptable if in the general interrogation by the court it is previously made clear that what constitutes a proper case for the death penalty was for the determination of the individual jurors. See also People v. Mabry, 455 P.2d 759 (Cal. 1969); People v. Williams, 456 P.2d 633 (Cal. 1969); People v. Vaughn, 455 P.2d 122 (Cal. 1969); In re Hillery, 457 P.2d 565 (Cal. 1969).
“I don’t agree with the death penalty” alone is insufficient (In re Seiterle, 456 P.2d 129 (Cal. 1969)) and the defect is not cured by referring to the entire examination of the other jurors because the correct examination must be centered on each juror. In order to ascertain what the juror means by his answers the court must consider not only the words of the [87] answers but also the words of the questions and, additionally, all of the circumstances in which the colloquy takes place. The answer “not the death penalty, no” is not enough to disqualify unless somewhere it is made clear to the prospective juror that it is entirely in his discretion what is a proper case to impose it. People v. Varnum, 450 P.2d 553, 561-62 (Cal. 1969). In re Tahl, 460 P.2d 449 (Cal. 1969); Sims v. Eyman, 405 F.2d 439 (9th Cir. 1969); Bell v. Patterson, 402 F.2d 394 (10th Cir. 1968). The supreme court has already remanded cases because of prejudicial jury selection violative of Witherspoon. Boulden v. Holman, supra; Spence v. North Carolina, 392 U.S. 649, on remand, 164 S.E.2d 593 (N.C. 1968).
5. The thesis of Witherspoon is whether the totality of the trial court’s treatment of the subject operated to deprive the defendant of being tried by a jury of representative quality. The jury must constitute a segment of the community within the concept that a jury shall be drawn from a cross-section of the community. State v. Mathis, 245 A.2d 20 (N.J. 1968). The defendant is entitled to a jury that is not a hanging jury and the state is entitled to a jury capable of imposing the death penalty.
6. Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment — and pro and con they are forceful either way — the death penalty has been employed throughout our history and is still the law and still may be imposed by a jury. Therefore, as stated by Justice Stanley Mosk in his concurring opinion in Anderson, personal conviction for or against the death penalty does not come in for consideration in this judicial determination. See also State v. Atkinson, supra.
We are compelled to apply Witherspoon to each case. It must appear from the record that the prospective juror is unable to return a death sentence no matter what may be the facts of the case. Segura v. Patterson, 402 F.2d 249 (10th Cir. 1968). Whenever the vent of a juror is for or against capital punishment he is not disqualified if he is still able to entertain the issue of guilt or innocence on the basis of the evidence before him. Whenever a prospective juror answers that he has a religious conviction or personal scruple or opinion concerning capital punishment which would render him unable to return a verdict carrying a death penalty he must be questioned further on the nature of his beliefs and then be confronted with the [88] question whether his views are so firm or fixed that he is unable to return the death penalty under any case. If he then says he is unable to do so he may be excused for cause. So also must a juror who is so firmly of the view that a murderer should die. State v. Mathis, supra; State v. Forcella, 245 A.2d 181 (N.J. 1968); State v. Pruett, 248 N.E.2d 605 (Ohio 1969); cf. State v. Wigglesworth, 248 N.E.2d 607 (Ohio 1969); People v. Speck, 242 N.E.2d 208 (Ill. 1968); People v. Moore, 246 N.E.2d 299 (Ill. 1969).
7. So long as one or more jurors were wrongfully excused the penalty feature of the trial is destroyed. People v. Vaughn, supra; In re Arguello, supra; cf. Bell v. Patterson, supra, at 398-399; People v. Washington, 458 P.2d 479 (Cal. 1969); People v. O’Brien, 456 P.2d 969, 974 (Cal. 1969); Whisman v. State, 164 S.E.2d 719 (Ga. 1968).
8. The comments of Collins, C. J., and Batjer, J., are unsupported by any court that has passed upon a case arising under the Witherspoon decision. They make no reference to citations of authorities even in face of the long list already in existence. Instead, those cases affirm that the interpretation of Witherspoon is as we have stated it, to wit, that the record must show a searching examination of the jurors in order to establish that their objections to the death penalty would not automatically disqualify them. See for example the latest reiteration of this principle in People v. Brawley, 461 P.2d 361, 373 (Cal. 1969).
The first language of the Witherspoon case which Chief Justice Collins quotes sets the stage for what that case does not apply, to wit, that it does not decide the validity of the death penalty as a challenge for cause in the first instance. The case decides only that prospective jurors in a capital case who voice an opinion about the death penalty must be further examined in order to establish whether or not they can vote on the issue of guilt and innocence and penalty on the evidence and disregard their fixed bias.
In reference to the comments of Batjer, J., exclusive of those in which he approves of the Collins’ analysis, he further stresses that Bean’s counsel, Anderson, “stipulated” to the exclusion of certain jurors. Attempting to justify an affirmance on that ground is a long stretch. The exclusion of the jurors or any one of them was not on an ad hoc (for this case only) basis, but was pursuant to a policy or practice long existent in Nevada by which both the state and the defense erroneously [89] assumed that a belief concerning the death penalty was an automatic ground for disqualification for cause. Anderson’s offer to stipulate reflects that pattern. It was obviously not given in the same sense as waivers or stipulations are ordinarily given, but was like the “no questions” or failure to object as in Boulden v. Holman, supra. There the typical colloquy was:
The Court: Do you have a fixed opinion against capital punishment?
Mr. Seibert: Yes, sir.
Prosecuting Attorney: We challenge.
The Court: Defendant?
Defense: No questions.
The Court: Stand aside. You are excused.
Other examinations of the same nature are therein recited on pages 482 and 483. The court repeated from Witherspoon that “unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal it cannot be assumed that that was his position.” The record must show that the juror would vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. Most of the cases previously cited recite the typical questions which are parallel to those cited by Chief Justice Collins and Justice Batjer. For instance, in Anderson one prospective juror was asked, “Do you know of any reason you couldn’t be a fair and impartial juror in this case?” Reply: “Yes, sir, I do. I don’t believe in capital punishment.” Anderson, supra, at 120. The cases do not specify any importance to whether or not there was or was not an objection when a juror was excused because of a death penalty bias. The exclusion was in all cases held to be wrong under Witherspoon requirements.
As to the contention of Justice Batjer that Anderson failed to object and waived any right to object, see In re Hill, 458 P.2d 449, 464 (Cal. 1969). “Since petitioners were tried before Witherspoon, failure to object to the exclusion of the prospective jurors in question does not bar petitioners from now claiming error. . . . We cannot assume that counsel would have refused to undertake further examination of veniremen had Witherspoon been decided prior to trial. Their failure to do so at this pre-Witherspoon trial therefore does not constitute a waiver of the right to raise error in the exclusion of prospective jurors in this collateral attack.”
9. To any extent that our previous cases of State v. Williams, 50 Nev. 271, 257 P. 619 (1927); Spillers v. State, 84 Nev. 23, 436 P.2d 18 (1968); Howard v. State, 84 Nev. 599, 446 P.2d 163 (1968), are inconsistent with our ruling in this [90] case, they are overruled. However, Howard declared only the mcompatability of our statute with the Illinois statute in reference to the challenge for cause founded on the death penalty.3
[91] B. THAT PRETRIAL PUBLICITY DENIED BEAN A FAIR TRIAL.
The crime here was of a sensational nature and it was inevitable that some of the publicity would be of the same character. The district attorney stated to the court that this was the most horrible murder in the history of Nevada. The groundswell of publicity surrounding it was therefore not unusual. Sonja was a comely young woman originally from England, an Olympic skier and well known on the ski hills of this area. The news value of her terrible death attracted national and international news representatives.
The crime and its trial occurred before Sheppard v. Maxwell, 384 U.S. 333 (1966). After comparing news articles and pictures preceding Bean and those of Sheppard we are not compelled to conclude that the publicity here was prejudicial— sufficient at any rate to cause a new trial on that ground. Extensive news coverage before a suspect is arrested can be helpful to alert the community so that citizens may protect themselves and their children from a killer at large and be of assistance to the police in keeping a watchful eye for suspicious characters.
Eventually the act of Bean pawning Sonja’s camera led to his arrest. His footprint at the scene helped to identify him. Almost immediately he admitted the crime in all of its gory details. Both before and after he was caught the district attorney and police chief conducted daily and orderly news conferences in a commendable manner so that rumors did not run wild and so that the officers were not prevented from performing their duties.
In the Sheppard case the Cleveland newspapers published cartoons and pictures, most of which were intended to inflame the community against the husband who was known but not yet even charged with the murder of his wife. (See Sheppard v. Maxwell, 231 F.Supp. 37 (S.D. Ohio 1964); Sheppard v. Maxwell, 346 F.2d 707, Exhibits, pp. 758-767 (6th Cir. 1965).) Nothing like that took place here. In Sheppard the newspapers clearly attempted to influence the law enforcement and prosecution authorities. So, too, in Silverthorne v. United States, 400 F.2d 627 (9th Cir. 1968), where the United States government officials participated in the dissemination of prejudicial news items about the alleged misdeeds of the bank official who was on trial.
10. Bean points to a televised reenactment of his crime as error, but that portrayal was not such as in Estes v. Texas, 381 U.S. 532 (1965), where television cameras were allowed to [92] operate in the courtroom during the trial nor as in Rideau v. Louisiana, 373 U.S. 723 (1963), where the defendant actually confessing his crime was televised or a published street poll on guilt or innocence occurred as in Irwin v. Dowd, 366 U.S. 717 (1961). Naturally, we have no way of knowing what effect news media reporting has on jurors, but the samples just given are clearly distinguishable from Bean’s reenactment for police authorities of the killing of Sonja.
11. Nothing was presented by the news media that did not later appear in evidence at the trial. It should be remembered that the fact of who committed the murder was not in doubt or at issue. The issue was whether or not Bean was insane when he committed it. Publicity can affect the penalty in a capital case just as much as it can direct the course of guilt or innocence, but at no time nor in any instance did the representatives of the news attempt to editorially steer the course of the trial or its result. Cf. People v. Speck, supra.
Trials cannot be conducted in a vacuum. They never were intended to be. The requirement is that they be fair, not perfect. The massive pressures of Sheppard were not present in this case. Williams v. Dutton, 400 F.2d 797, 801 (5th Cir. 1968).
C. INADEQUACY OF COUNSEL.
12. We have already indicated that Bean’s defense counsel, Harry Anderson, was competent in the defense of his client at the trial. Bean v. State, supra. Now counsel for Bean point to Anderson’s inexperience in criminal matters, his illness during the trial (he died shortly after the trial was over) and that his defense of Bean did not meet the standards of the community. Several attorneys testified as to how they would have handled Bean’s defense and their testimony, of course, was contrary to what Anderson did or did not do.
Trial lawyers will always disagree on how a case should have been tried. Second guessing is as characteristic of lawsuits as Monday morning quarterbacking is of football games. But before a denial of due process arises on the ground of inadequate counsel the trial must be a sham, a farce or a pretense. People v. Reeves, 415 P.2d 35 (Cal. 1966); Hollander v. State, 82 Nev. 345, 418 P.2d 802 (1966); State v. Jukich, 49 Nev. 217, 242 P. 590 (1926); Ex parte Kramer, 61 Nev. 174, 122 P.2d 862 (1942); State v. Arellano, 68 Nev. 134, 227 P.2d [93]*93963 (1951); People v. Robillard, 358 P.2d 295 (Cal. 1960); People v. Rideaux, 393 P.2d 703 (Cal. 1964); In re Beaty, 414 P.2d 817 (Cal. 1966); People v. Ibarra, 386 P.2d 487 (Cal. 1963); People v. Brooks, 410 P.2d 383 (Cal. 1966); Torres v. People, 411 P.2d 10 (Colo. 1966); Melton v. People, 401 P.2d 605 (Colo. 1965); State v. Calhoun, 399 P.2d 886 (Kan. 1965); Hicks v. Hand, 369 P.2d 250 (Kan. 1962); Loftis v. State, 417 P.2d 374 (Ariz. 1966); Wright v. Craven, 412 F.2d 915 (9th Cir. 1969). Anderson was a respected general practitioner of law, so we must infer, since he is no longer alive to testify, that his tactic was to claim Bean’s insanity on the premise that a jury might agree that nobody in his right mind would commit the deeds that Bean did. Even with the right and wrong test of the M’Naghten Riñe Bean’s event was so bizarre that it challenged sanity. Perhaps Anderson reasoned that the best locale to reach that result was that in which the crime took place. Even though the jury did not agree with him it was a logical tactic and we do not find that Bean’s trial was “a sham, a farce, or a pretense.”
13. Petitioner asserts other grounds of error but all other matters were either reviewed in the first appeal or they are without merit. For instance, he says that capital punishment is unconstitutional because it is a cruel and unusual punishment and that furthermore our statute is constitutionally impermissible because it has no prescribed standards to guide the jury. Capital punishment has been long established as a lawful punishment and will not now be declared unlawful by us nor will we declare our legislative provision infirm for lack of a prescribed standard for a jury to follow. Segura v. Patterson, supra, at 254; Modesto v. Nelson, 296 F.Supp. 1375, 1376 (N.D. Cal. 1969); In re Anderson, supra.4
D. PENALTY.
14. Our conclusion is that the claims of error that pretrial publicity and inadequate counsel destroyed the fairness of the trial are denied. However, the jury selection was prejudicially defective under the Witherspoon requirements. A new trial is not compelled, only the penalty is invalid. The finding that [94] Bean is guilty will remain, but he is entitled to a new hearing on the question of penalty, this time before a jury drawn according to the Witherspoon requirements. This can be done without the authority of a statute such as California, New York, Texas and Pennsylvania have. People v. Friend, 306 P.2d 463, 477 (Cal. 1957); People v. Purvis, 346 P.2d 22, 31 (Cal. 1959); Alexander v. State, 168 S.E.2d 315 (Ga. 1969). Witherspoon reversed as to penalty only, not the conviction of guilt.
The conviction will stand. The penalty of death is set aside and that phase is remanded to the trial court for a new hearing before a jury drawn in accordance with Witherspoon for a redetermination of punishment.5
Thompson, J., concurs.