We are squarely confronted with the question of whether the exclusion by the trial court of prospective jurors who had conscientious scruples against the infliction of death as a punishment for crime deprived appellant of his constitutional right to a trial by a fair and impartial jury. This is the first time this Court has been called upon to pass upon such a ground of error since the decision of the United States Supreme Court in Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776, 36 U.S.L.W. 4504, 3 Cr.L. 3109, upon which appellant relies, and which, of course, is to be applied retroactively.
