"How far considerations of age, sex, ignorance, illness or human passion or weakness, or sympathy or clemency, of the irrevocableness of an executed sentence of death, or apprehension that explanatory facts may exist which have not been brought to light, or any other consideration whatever, should be allowed weight in deciding the question whether the accused should or should not be capitally punished, is committed by the act of congress to the sound discretion of the jury, and of the jury alone."

Of course, "age, sex, ignorance, illness or intoxication" would all be matters appearing by evidence, and “human passion or weakness" might, too, be so made to appear; but "sympathy or clemency, or the irrevocableness of an executed sentence of death, or an apprehension that explanatory facts may exist which have not been brought to light, or any other consideration whatever," would of necessity be entirely outside of the evidence

I am unable to lay hold of Winston v. United States as an authority either way on the proposition under consideration, because, as I view it, it decides the question both ways. I am, however, decidedly of opinion that our act of the legislature intends that the jury should be guided by the evidence in determining whether or not to recommend life imprisonment at the time of convicting an offender of murder in the first degree. The provision in the act (Pamph. L. 1916, p. 576) is that if such recommendation be made, life imprisonment shall be imposed. This act gives the jury the right, practically, to pass sentence of life imprisonment instead of death. Before the passage of that act the law provided but one penalty for murder in the first degree, and that was death. If the law formerly had been that upon conviction of murder in the first degree the prisoner should be executed or imprisoned for life in the discretion of the court, who will say that the law intended that the judge might travel outside of the evidence, and, as a mere matter of caprice, sentence a man to imprisonment for life instead of to death.

For all, or almost all, other crimes than murder the law provides elasticity in the matter of sentence, usually imprison

ment not exceeding a certain term, or a fine not exceeding a certain amount, or both. I have always thought that a judge in passing sentence upon offenders convicted for various crimes imposed a sentence upon consideration of the evidence before him. And when a jury is substituted for the judge in the matter of practically imposing the sentence, I think that the theory of the law is that the jury should be guided by the evidence, and, where mitigating circumstances appear in the evidence, the recommendation to imprisonment for life may, with propriety, be made, but where the murder is without palliation or mitigation that the recommendation should be withheld. I agree that the jury should be instructed that they have an absolute discretion in the matter of making or withholding the recommendation, provided, however, they are told that their determination to do the one or the other is confined to and arises out of a consideration of the evidence.

The trial judge in the case at bar instructed the jury, as a matter of law, that there were no standards of conduct or principles upon which the jury should act in arriving at a conclusion as to whether or not they would impose the death penalty; he then proceeded to suggest to the jury that they ought to consider certain interests of the state and of the defendant, and then after stating some such, said that those and such other matters as they might deem proper were perfectly proper for the jury to consider; and further, that all those matters were left by the statute to the jury's determination, and that they might in their discretion consider them; but this was not reversible error, because at every turn it was left to the jury to say which of the alternatives under the statute they would denounce against the defendant in case they convicted him of murder in the first degree. A conviction in a criminal case will not be reversed for error in an instruction to the jury which could not have prejudiced the defendant; and this one, in my judgment, could not have done so.

The statement to the jury by the trial judge that if the contention of the state were adopted, the case was one of the most cold-blooded, atrocious, wicked and depraved murders in

the first degree that can be conceived of; the purpose was to rob the deceased of his rings, stud, pocketbook and money, while the victim lay breathing, apparently his last breath, exclaiming, "Oh, Oh!" The robber and murderer took the rings from his finger, broke the stud from his shirt bosom and relieved him of the contents of his purse; it was apparently done without any motive borne of any instinct even faintly related to any righteous or other provocation-did not constitute error, as it is not legally objectionable for a trial judge in a criminal case to state to the jury what the prosecution claims the proof shows with reference to a material fact; and these last-mentioned statements were not an assertion by the judge as to the acts and purposes of the defendant, but left the question to be decided by the jury from the evidence; it was a statement of the contention of the state with reference to the facts, and not an opinion of the judge as to what the facts were, and was therefore not objectionable.

I am unable to discover any reversible error in the record before me, and shall therefore vote to affirm the judgment under review.

WHITE, J. (dissenting). I understand it is a matter of common knowledge that prior to the act of 1916 many first degree murderers escaped punishment because of a reluctance on the part of juries to find verdicts requiring the death penalty, and that an effort was made to remedy this condition by attempting to enact legislation abolishing capital punishment, but the attempt failed, and instead, that the legislature enacted the act of 1916 authorizing a verdict of first degree murder with a recommendation of life imprisonment, and providing that the punishment in case of a verdict without such a recommendation should be death, but with such a recommendation it should be life imprisonment. As a result of this act it was thought that juries which would not find verdicts involving the death penalty, would find verdicts involving imprisonment for life.

It is now proposed, as I view it, to destroy, by judicial con

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struction, the remedial effect of this legislation by holding that the recommendation is not a part of the verdict, but is rather in the nature of a sentence, and that consequently the jury must first agree upon a verdict involving the death penalty before it can consider the recommendation for life imprisonment; and that having agreed on the death penalty verdict, if one juror declines to agree to the recommendation, the prisoner must be electrocuted, even though the other eleven jurors wanted to make the recommendation, and in fact would not have agreed to the verdict except upon the understanding that there would be a recommendation. course in such a situation the eleven jurors might decline to come into court and render the verdict without the recommendation, thus demonstrating that the recommendation is in fact a part of the verdict, but under the logic of the majority opinion they would in so doing be acting contrary to law and violating their oaths as jurymen. I suppose under that opinion the trial court upon proper request would have to charge the jury that before considering the recommendation at all they must first find the prisoner guilty of murder in the first degree, and having done this they may consider whether or not to make the recommendation, and that then unless the jury unanimously agreed to the recommendation, it would be their sworn duty to render a verdict of guilty of murder in the first degree without any recommendation. If such instruction were given clearly the jury could not disregard it without violating their oaths. Can it be that in doing exactly what the act of 1916 was passed to enable them to do, viz., agreeing on a verdict with a recommendation where they would not agree upon a verdict without a recommendation, the members of the jury are perjuring themselves? I cannot think so. Then, again, suppose the jury contain one or more members conscientiously opposed to capital punishment, are they to be required to first vote for a verdict of guilty, entailing that punishment, whereas, obviously, the purpose of the act of 1916 was to enable them to vote for a verdict of guilty not involving capital punishment? Is the court prepared to

say that since the passage of the act of 1916 conscientious scruples against capital punishment are to continue as heretofore a disqualification for service upon murder juries, although the act was passed to accommodate just such scruples?

I think the recommendation was intended by the legislature. to be and by the very language of the act is a part of the verdict, and that, consequently, of course, the jury may be assisted in finding this as well as all other elements going to make up the verdict, by the proper comments of the court upon the evidence and upon the scope to which their considerations may extend.

I do not understand that the comment of the learned trial judge in this case would be considered improper, under our cases, if it had been directed to the part of the jury's duties involved in reaching a conclusion as to the guilt of the prisoner, and that being the case, I cannot see why the comment was not equally proper as applied to the part of the verdict. to be covered by the presence or absence of the recommendation, provided only that no limitation other than the free and uncircumscribed judgment and conscience of the jury was imposed. In Winston v. United States, 172 U. S. 303, the jury were told they must be governed by what they should find from the evidence, was the degree or circumstances of the crime, but in the case sub judice the learned trial judge not. only told them that the statute fixed no standard or principle to guide them, but he further told them that they might consider not only the evidence, but everything else, including whether or not the infliction of the death penalty really carries out the purpose for which it is intended. He left the jury absolutely untrammeled, just as does the statute, except by their judgment and their conscience, and if his comment upon the evidence had a part in moving their conscience to omit the recommendation, as they did, in this case, a careful reading of the evidence, including the prisoner's confession of this coldblooded horrible murder, has strengthened my belief that such comment serves a useful and highly important public purpose and should not be prohibited.