PER CURIAM.
The judgments of conviction of first degree murder and of robbery are affirmed. The death sentences are set aside with directions that each appellant be resentenced to life imprisonment on the verdicts of guilty of first degree murder. Circuit Judge Wright dissents from the affirmance of the convictions of first degree murder. Senior Circuit Judge Wilbur K. Miller, Circuit Judge Danaher, Senior Circuit Judge Bastían, and Circuit Judge Burger dissent from the setting aside of the death sentences and from the directions that each appellant be resentenced to life imprisonment.
It is so ordered.
TAMM, Circuit Judge,
took no part in the consideration or decision of these cases as he was not a member of the court when the cases were considered and decided.
LEVENTHAL, Circuit Judge,
took no part in the consideration or decision of these cases.
FAHY, Circuit Judge, with whom BAZELON, Chief Judge, and WASHINGTON and WRIGHT, Circuit Judges, join, except that for reasons stated in his separate opinion Judge WRIGHT does not join in Part I: Appellants Joseph Frady and Richard Gordon, then twenty-two and eighteen years of age, respectively, were convicted of first degree murder in the killing of one Thomas Bennett with deliberate and premeditated malice. 22 D.C.Code § 2401.1 They are under sentences of death. For the reasons stated herein and in the opinion of Circuit Judge McGowan the death sentences are set aside and, exercising its authority under 28 U.S.C. § 2106,2 the court directs the imposition of life imprisonment, the only sentence other than death that can be imposed for first degree murder.
I.
The problems involved in affirming the convictions are fully discussed in the opinions written by Circuit Judge Wilbur K. Miller, for affirmance, and by Circuit Judge Wright, for reversal. The most troublesome contention for reversal is directed to the sufficiency of the evidence to support the jury’s conclusion beyond a reasonable doubt that the homicide was “of deliberate and premeditated malice.” [86]*86A majority of the court concludes that the evidence was sufficient.
II.
The sentences of death are a different matter. In my view they have been erroneously imposed. I now explain why.
22 D.C.Code § 2404, as amended March 22, 1962, abolished in this jurisdiction the mandatory death sentence for first degree murder. The punishment now turns upon jury action. It is death “unless the jury by unanimous vote recommends life imprisonment” or if the jury “having determined by unanimous vote” that the defendant is guilty of first degree murder “is unable to agree as to punishment it shall inform the court and the court shall thereupon have jurisdiction to impose and shall impose either a sentence of death by electrocution or life imprisonment.” The text is set forth more fully in the margin.3
Congress thus transferred to the jury responsibility theretofore lodged in the statute which made the death sentence mandatory. In considering how this new jury responsibility was sought to be guided in these cases I find two errors which require the death sentences to be set aside.
(1) The first error discussed is the court’s instruction to the jury that “in order to return a verdict it is necessary that each juror agree thereto * * *. Your verdict must be unanimous.” The full context of the particular instruction is set forth in the margin.4
This instruction, although intended to guide the jury in considering the issue of guilt, was given without qualification as though applicable to the punishment as well. But there is no need for agreement as to punishment. Unanimity is required only for a verdict of guilty or not guilty. Lack of unanimity as to punishment is altogether in order.
Earlier in the charge, it is true, the jury was instructed that each juror was to make an individual decision as to penalty and that lack of agreement should be reported to the court. But this did not cure the strong suggestion to seek unanimity. As the Supreme Court stated in Andres v. United States, 333 U.S. 740, 68 S.Ct. 880, 92 L.Ed. 1055, with respect to instructions which similarly could have been misunderstood,5 “[i]n death cases doubts such as those presented here should be resolved in favor of the accused.” 333 U.S. at 752, 68 S.Ct. at 886.
[87]*87It is true also that on the written forms of special verdicts, to be discussed more fully hereinafter, the court provided a place to express disagreement on punishment, and carefully instructed the jury on the use to be made of the forms. But a place to express disagreement does not dispel the effect of an instruction designed to achieve agreement. I readily recognize that in considering the instructions and forms as a whole the jury may have understood the difference between their functions as to guilt on the one hand and punishment on the other. But a doubt lingers in seeking now to assess the effect of the questioned instruction. If the doubt is left unresolved it leads to death. In resolving it, as must be done, life is favored.
(2) The second error impairing the validity of the death sentences has to do with the poll. The court had supplied each juror with a mimeographed form of special verdict to be filled out according to the conclusions reached, or not reached, as to both guilt and punishment. Three forms of special verdicts were given to each juror, covering the several counts in the indictment and the possible verdicts. The form for count one, charging first degree murder of deliberate and premeditated malice, reads as follows:
“First Count Verdict .......
“First Degree Murder ................
(Possible Verdicts:
1. Not Guilty.
2. Guilty as charged of First Degree Murder.
3. Guilty as Charged of First Degree Murder with recommendation of Life Imprisonment.
4. Guilty as charged of First Degree Murder with the jury unable to agree as to punishment.
5. Guilty of Murder in the 2nd Degree.
6. Guilty of Manslaughter.
(Note: If the Jury returns a verdict of Guilty as charged of First Degree Murder (being No. 2), and makes no recommendation as to Life Imprisonment and does not state that the Jury is unable to agree as to punishment, the Court must under the Law, sentence the defendant to death by electrocution.
“If the Jury returns a verdict of Guilty as charged of First Degree Murder with recommendation of Life Imprisonment (being No. 3), the Court must sentence the defendant to Life Imprisonment.
“If the Jury returns a verdict of guilty as charged of First Degree Murder with the Jury unable to agree as to punishment (being No. 4), the Court will thereupon have the duty to fix the penalty and will impose either a sentence of death by electrocution or a sentence of life imprisonment at the discretion of the Court.”
It will be seen that the text of the No. 2 verdict does not in terms refer at all to punishment. This vital matter is left to an explanatory note. After the jury returned to the courtroom from their deliberations, a copy of the forms was handed to the deputy clerk by the foreman. On the form pertaining to first degree murder of deliberate and premeditated malice the foreman had written after “Verdict” the words “Guilty as charged of First Degree Murder.” He alone had signed the forms handed to the deputy clerk as the official verdicts. The record shows the following took place at this time:
“Deputy Clerk: Will the foreman please stand. (The foreman stood.)
“Deputy Clerk: Mr. Foreman, is the jury agreed upon a verdict?
“Foreman: We have. (The verdicts were handed to the deputy clerk.)
“Deputy Clerk: Members of the jury, your foreman says that you find the defendant Joseph C. Frady not guilty on Count 2, guilty as charged of first degree murder on Count 1 and guilty as charged on Count 3;
“That you find the defendant Richard A. Gordon not guilty on Count 2, guilty as charged of first [88]*88degree murder on Count 1 and guilty as charged on Count 3;
“And that is your verdict, so say you each and all? (The jurors, in unison, indicated in the affirmative.)”
As I have said the judge in his oral instructions carefully explained the forms and how they should be used. Nevertheless the form actually used in returning the murder verdict of guilty is not as well designed to avoid uncertainty as, the form used in United States v. White, 225 F.Supp. 514, 523 (D.D.C. 1964). Judge Youngdahl there stated:
“It is fairest to the defendant for the jury to have the full range of clearly distinguished alternatives before them for consideration at one time. Thus this Court submitted a verdict form which read:
“ ‘Guilty of First Degree Murder, punishment of Death-;
“ ‘Guilty of First Degree Murder, punishment of Life Imprisonment
“ ‘Guilty of First Degree Murder, unable to agree as to punishment
“ ‘Guilty of Second Degree Murder
“ ‘Guilty of Manslaughter-;
“ ‘Not Guilty-.’ ”
In this form each juror is faced with the necessity of expressing himself in the verdict with respect to punishment. However, the verdict rendered by the foreman in the present cases need not be discussed further; for in any event the death sentences do not survive the poll that followed the written verdicts handed to the clerk by the foreman.
A poll was requested and taken as authorized by Rule 31(d), Fed.R.Crim.P.6 In conducting it the clerk asked each juror “What say you as to the defendant (naming each) on Count 1?” Nothing more. Each juror answered “Guilty as charged of first degree murder.” Nothing more. No additional instruction had preceded the poll. No word was said by judge or clerk as to what each juror’s position might be as to punishment. And the previous suggestion of the court of the need for unanimity was not removed. No question was put respecting punishment. No answer was given respecting punishment, unless we assume each juror silently carried into his answer all that was written on the special verdict and all that had been said by the judge about it.
I am unwilling to assume that each juror by his silence thus decreed or agreed to death. Under our amended Code, placing upon each juror the responsibility of weighing life imprisonment against the death penalty, the poll must explicitly exact certainty as to the position of each juror. His position is not to be left either to inference or silent reference to a form used in the previously rendered special verdict. Disagreement might be manifested by explicitness. Indeed, a juror might be disclosed to be uncertain as to the punishment, and not merely in disagreement with his fellows. He is required neither to be certain nor in agreement. He may remain in doubt as well as disagree.
To repeat, the death sentences have been imposed in these cases on the theory that the Note on the written form was carried over in silence into the spoken answer “Guilty as charged of first degree murder,” which considered alone does not speak of punishment. This leaves death to depend upon uncertainty where certainty is essential.
“The practice of long standing [of polling the jury] requires each juror to answer for himself, thus creating individual responsibility, eliminating [89]*89any uncertainty as to the verdict as announced by the foreman.”
State v. Vaszorich, 13 N.J. 99, 126, 98 A.2d 299, 314, cert. denied, 346 U.S. 900, 74 S.Ct. 219, 98 L.Ed. 400 (1953), citing from State v. Cleveland, 6 N.J. 316, 322, 78 A.2d 560, 563, 23 A.L.R.2d 907 (1951). (Emphasis in Vaszorich opinion by William J. Brennan, Jr., J.)
In State v. Cleveland, supra, the verdict announced in open court by the foreman had specified that the jury found defendant guilty of first degree murder. And no juror dissented from the clerk’s statement summarizing the result of the poll that “ [y] ou say you find the defendant guilty of murder in the first degree, as rendered by your Foreman, and so say you all.” But the jurors in answering the poll had failed to specify the degree of murder of which they found the defendant guilty. The court held this to be reversible error saying:
“We know of no authority creating an inference because a juryman fails to dissent nor are we cognizant of any practice which makes his failure to dissent or mere silence the equivalent of a full finding as proclaimed by the statute.
******
“The question involves more than a technical violation of a statute or rule of procedure. It is a matter ‘of utmost gravity’ as it adjudicates not alone the guilt of the defendant but carries with it the punishment of death. Such a determination cannot be left to inference. The finding must be specific and in exact accord with the statutory mandate.”
6 N.J. at 323-325, 78 A.2d at 563-564. This position was reaffirmed in State v. Butler, 27 N.J. 560, 143 A.2d 530 (1958).
In a similar factual situation the same result was reached in Williams v. State, 60 Md. 402, 403 (1883). And see Wilson v. State, 93 Ga.App. 375, 91 S.E.2d 854, 856 (1956); Blankenship v. State, 112 Ga. 402, 37 S.E. 732 (1900); and State v. Boger, 202 N.C. 702, 163 S.E. 877 (1932).
Although the cases cited are not on all fours with the present ones, they make clear that no inference can be drawn from a juror’s silence or failure to dissent from the verdict as announced by the foreman. The same rationale prohibits here the imposition of death sentences by reason of an inference from silence in the poll itself.
“[E]ach juror should be put to the individual test, and made to respond solus, without assistance, and without accompaniment. He may be unwilling to agree to the verdict when he is questioned by himself, though he might agree if allowed to do so with the support of 11 other concurrent responses.”
Blankenship v. State, supra, 112 Ga. 402, 404, 37 S.E. 732. See Miranda v. United States, 255 F.2d 9, 18 (1st Cir. 1958); State v. Thursby, 245 S.W.2d 859, 863 (Mo.1952).
A deficiency in the poll is not cured by the completeness of the verdict previously announced by the foreman.7 The reading of a verdict does not afford the same protection to the accused a poll is designed to provide. A juror who concur'- in the juryroom, out of weakness a id against his conscience, in the verdict of eleven other jurors, may express his real opinion as to punishment when given a clear opportunity in open court in the presence of the defendant. This is especially true under our statute, note 3, supra, which calls for consideration [90]*90and decision of punishment separate from the consideration and decision as to guilt.
A poll takes on special importance in a case where the verdict determines not only guilt but whether the punishment will be death or life imprisonment. See Askew v. State, 118 So.2d 219 (Fla. 1960).8 I refer again to State v. Cleveland, supra, where the court noted the necessity that the degree of murder, and hence determination of life or death, be specified in the poll. The court quoted from another New Jersey case, State v. Cooper, 2 N.J. 540, 550, 67 A.2d 298, 302 (1949):
“The death sentence cannot be pronounced unless the verdict is definitive of the degree of guilt which entails that penalty. Not only is it understandable that the Legislature deemed it essential that in resolving an issue involving the death penalty or life imprisonment, the finding be specific and not left to conjecture; it is inconceivable that it would not have so provided.”
6 N.J. at 323, 78 A.2d at 564; and see Commonwealth v. Martin, 379 Pa. 587, 593, 109 A.2d 325, 328 (1954). Cf. Andres v. United States, supra, 333 U.S. at 752, 68 S.Ct. 880, 92 L.Ed. 1055.
The conclusion I draw is that once a poll is demanded the court has a duty under our present Code to inquire of each juror as to his assent to each essential element in the verdict. When the verdict is guilty of first degree murder this includes inquiry as to each juror’s position on punishment. Only in this manner can the court be certain that each juror understood the consequence of his verdict as it bears upon punishment.
III.
Since the convictions are free of reversible error, although the death sentences were invalidly imposed due to (1) the instruction as to the need for unanimity and (2) the inadequacy of the poll, I consider now how this court should dispose of the appeals.
First, as has been stated, the convictions are affirmed. They are not affected by the errors which affect the sentences.
As to the sentences, there are only two sentences possible for first degree murder, either death or life imprisonment. For the reasons stated herein and by Judge McGowan for himself and our brethren who concur with him the death sentences cannot stand. It is impossible, and impermissible, to reconvene the same jury to consider now the punishment. And a new jury is not required to be convened for that purpose, assuming a jury other than the trial jury could validly perform the sentencing function under our Code. Furthermore, since the problem of punishment depends upon jury action — for the trial judge may decide the punishment only after the jury is unable to agree, as to which there was no certainty due to the errors referred to — -a remand of the case to the trial judge to determine the punishment is not required. Perhaps that could be done within the latitude permitted by 28 U.S.C. § 2106, supra; but the same latitude authorizes this court to make a final disposition of the cases. Were the trial judge’s discretion with respect to the punishment for first degree murder broader than it is, and were his function in that regard disassociated from the jury’s action, perhaps the court should remand for the exercise of his discretion. But since only one sentence other than death is possible under the statute itself, [91]*91life or death dependent upon jury action which in these cases was not correctly guided, resulting in death sentences which cannot be sustained, the appropriate solution is for this court, acting under Section 2106, to direct the entry of the only alternative sentences permitted by law. Since it is not possible to reconstruct the situation as it might have been but for the errors referred to, or to leave the death sentences in effect, resort is had to the punishment of life imprisonment, the only alternative. This, to quote the language of Section 2106, is “just under the circumstances.” 9
McGOWAN, Circuit Judge.
I share the view that the convictions of appellants should be affirmed. With respect to the punishment to be imposed for the crime of murder, I concur in the result reached in Judge Fahy’s opinion, not because I believe there were errors in the instructions or the polling of the jury, but because the same result flows in this case from the view I hold as to the procedure which should be followed in determining punishment under this statute. For the Government has indicated that the entry of a judgment of life imprisonment would be a proper course, in the event that the procedure employed in this case is thought to have been inadequate.
Whenever a jury is given the function of deciding guilt or innocence in a capital case, and is further accorded the responsibility of choosing between death and life imprisonment as the punishment to be imposed, it seems to me that the cause of enlightened and efficient criminal administration is best served by a two-stage trial.1 In the first stage, the inquiry is focussed upon the issue of whether the defendant is guilty as charged. In the second, the jury takes up the matter of the penalty to be exacted. It is obvious that evidence relevant to the one may well be unrelated to the other. It is equally obvious that inability to adduce evidence as to both can operate to the prejudice of both the defendant and the public in the elucidation of those considerations entering most directly into any assessment of punishment which seriously purports to have been arrived at by rational means.
From the defendant’s standpoint, the jury’s deliberations upon his punishment are less than adequately informed if his right of allocution has not been meaning[92]*92fully available and if facts of a mitigating nature are not before it. By the same token, the government should be able to apprise the jury of any and all circumstances which bear upon the penalty. In many instances, of course, such circumstances will be of an aggravating nature which in no event should become known to the jury prior to its resolution of the issue of guilt. It has never been clear to me how, absent a two-stage procedure, there can be a satisfactory accommodation of these diverse interests. Such an accommodation impresses me as most desirable, even if the Constitution be not thought to require it. If the pace of procedural improvement in the administration of criminal justice must march always to the measure of the Constitution, progress may be slower than it need be. The great office of the Constitution in this area is to set minimum standards. It does not forbid the ingenuity in procedural improvisation which it could not command.
The problem for me, therefore, is not one of the merits of the two-step procedure, but whether it may appropriately be adhered to by this court in the absence of explicit legislative provision for it. There would also be a serious question of policy presented for this or any court considering the initiation of the two-step procedure in the face of a clear indication of unmistakable legislative antipathy to it, — a question which I, in common with amicus, think should doubtless be answered in favor of inaction. I agree also with amicus, however, in believing that, although Congress did not provide in terms for the two-step procedure in 22 D.C.Code § 2404, neither can it be said to have set its face against the employment of that procedure in the implementation of this statute.
The Judicial Conference of this Circuit may take pride in the fact that the impetus to change in the archaic D. C. mandatory death sentence law came from it. On May 22, 1959, it resolved that mandatory capital punishment should be abolished, leaving the matter of ways and means to be considered further by its committee on the subject. On this same day Senator Keating brought the Conference’s resolution to the attention of the Senate; and, a few days later, he introduced a bill (S. 2083, 86th Cong.), which, although retaining the death penalty as the basic punishment for first degree murder, authorized the judge to impose a sentence of life imprisonment if the jury so recommended. In a statement accompanying the introduction of his bill, Senator Keating made it clear that, although his proposal followed the practice then extant in his home state of New York, he had no unyielding position with respect to mechanics and he alluded, as worthy of consideration, to a procedure advanced by the American Law Institute whereunder a separate hearing on punishment would follow upon a determination of guilt. An advantage of this, so he remarked, was that “it would permit evidence to be presented on the issue of punishment which might not be admissible in the trial of the actual offense.” 105 Cong.Rec. 9393 (1959). Thus it is evident that Senator Keating, one of the most persistent and influential of those members of the Congress moving to reform the D. C. law, was not repelled by the two-stage procedure.
Later in the year (i. e., November 16, 1959), the Circuit Judicial Conference Committee reported to the Conference. In contrast with Senator Keating’s bill, it made the punishment for first degree murder life imprisonment unless the jury unanimously recommended death; and, even in the latter event, the judge was authorized and directed to impose a sentence of either death or life imprisonment after, and only after, conducting “such proceedings as may be provided by rule of court for the ascertaining and considering of all facts and circumstances relevant to the question of punishment.” The Circuit Conference adopted this report; and this approach was also approved by the Judicial Conference of the United States. A bill embodying it (H.R. 11263, 86th Cong.) was introduced on March 18, 1960.
[93]*93This last-named bill was the subject of hearings by a subcommittee of the House District Committee which eventuated in the preparation by the subcommittee of an entirely new bill (H.R. 12483, 86th Cong.); and the latter was reported to the House without amendment by the full Committee. The language of this bill is very close to what eventually emerged as the statute with which we are presently concerned. It contained the provision for the hearing by the judge of evidence in mitigation or aggravation in the cases of those persons convicted prior to the effective date of the law but as to whom the death sentence had not yet been carried out. On the floor, a committee amendment was offered and adopted, providing that, if the jury disagreed on punishment, the judge could sentence the defendant to either death or life imprisonment. This change, which was agreed to and the bill passed on June 27, 1960, brought the measure completely into line with what is now 22 D.C.Code § 2404.
Meanwhile, back in the Senate, Senator Keating had informed his colleagues on March 22, 1960, that the Judicial Conference of the United States had come up with a bill reflecting an approach different from that taken in his S. 2083. Reiterating his overriding concern to be with the end, and not the means, of getting rid of mandatory capital punishment in the District of Columbia, he stated his lack of objection to the Conference’s bill. H.R. 12483, upon its arrival from enactment in the House, went to the Senate District Committee, which approved it without amendment. The committee report said that it had examined three proposals in all (i. e., S. 2083, the Judicial Conference draft bill, and H.R. 12483), and that it had fixed upon the last as an appropriate means of realizing Senator Keating’s wholly commendable objective, namely, the termination of the District’s dubious distinction as the sole remaining American jurisdiction with mandatory capital punishment.
The 86th Congress rose without final Senate action on this measure. The convening of the 87th Congress saw its introduction in identical form in both House and Senate. It was eventually enacted by both Houses without significant change, and after a debate in the Senate which was generated by unsuccessful efforts to make this the occasion for the complete abolition of capital punishment in the District of Columbia. In turning aside these efforts, the proponents of the bill relied heavily upon the fact that, as Senator Keating put it, their proposal would assist law enforcement “by adding an element of judgment and discretion to cases involving capital punishment.” 108 Cong.Rec. 3982 (1962).
I do not think it far-fetched to infer that an explicit legislative purpose to commit the issue of life or death to the exercise of “judgment and ’discretion” comprehends procedures calculated to make that exercise as informed as possible. At the least there is no inherent incompatibility which would cause a court to think that the Congress was actively opposed to the use of a two-step procedure in the administration of this statute. Dean Wigmore, surely no member of the avant garde in the area of criminal law, argued forcefully many years ago that the courts should, without waiting for legislative action, take the lead in devising procedural methods to cope with this matter of the essential differences between an inquiry into a defendant’s guilt of first degree murder and the question of whether the penalty should be death or life imprisonment. No agency of government is better equipped than the courts to prescribe procedures for the trial of lawsuits. They have immemorially been thought to have not only the authority to act independently in this area but, indeed, a responsibility to do so.2
[94]*94It is said that our own Circuit Judicial Conference considered and rejected the two-stage procedure, and that we should not go counter to that determination, at least without express Congressional authorization. It is true that the report of the Circuit Conference Committee noted that the committee had considered and rejected the two-stage jury hearing. But this was in the context of a proposal that the punishment for first degree murder should be life imprisonment unless the jury recommended death; and, as the committee noted, its rejection of the two-step procedure was intended to require the jury to take the extraordinary step of recommending death “only on the basis of the evidence received at the trial,”— evidence which would, thus, be devoid of anything of an aggravating nature not directly reflected in the commission of the crime charged. Even if the jury took this step, however, the committee was not prepared to permit this action to be final. The judge was still to have the power to decide between death and life imprisonment, but only after a hearing in which there were to be adduced “all the facts and circumstances relevant to punishment, as in other cases.” Thus the committee’s essential policy determination was that no person found guilty of first degree murder should be sentenced to death without a separate hearing in which all evidence relevant to punishment was to be brought out. Under the committee’s approach, this separate hearing would have been before a judge. If the committee had known that its approach was to be rejected by the Congress in favor of enlarging the jury’s role in the choice of punishments, it seems not unlikely that it would have wished a separate hearing to be held better to inform the jury’s discretion.
Thus it does not seem warranted to attribute either to our own Circuit Conference or to the Judicial Conference of the United States a disrelish for the two-step procedure under any and all circumstances. And, as indicated above, neither do I find in the legislative record any affirmatively hostile attitude towards it on the part of Congress. I think, there[95]*95fore, that this court is free to prescribe the use of the two-stage procedure as the one best fitted to effectuate the purpose of Congress in this statute to secure the interests of the accused and the public alike; and I would have made that procedure available to these appellants.
I am authorized to say that Chief Judge Bazelon and Circuit Judge Wright join in so much of the foregoing opinion as is addressed to the matter of the two-step procedure.